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New background check restrictions put a twist in privacy watchdog’s case against police
Ontario’s privacy commissioner is re-evaluating his court case against Toronto police over disclosing suicide attempts in records shared with outside agencies, following the force’s move to ban release of mental health information in background checks.
As of this week, organizations that request a Toronto Police Service background check on potential volunteers or employees who will be working with children or vulnerable people — positions ranging from a scout coach to a teacher to a health-care provider — will, under no circumstances, receive non-criminal mental health records.
Prior to the change, police checks released to employers or organizations could document a suicide attempt or psychological crisis that prompted a 911 call or a police response.
The move has been lauded by mental health and civil rights groups, which have been calling for an end to a practice they say unfairly affects people with a mental health history.
Brian Beamish, Ontario’s Information and Privacy Commissioner, said Toronto police “have taken a very significant step forward” in adopting guidelines recently developed by the Ontario Association of Chiefs of Police concerning background checks. Those guidelines “strike the right balance between privacy and community safety,” Beamish said in an email.
But it’s not clear what impact the change could have on an ongoing — and unprecedented — court case the information and privacy watchdog filed against the Toronto police last year.
That case turns on a separate but related issue: Toronto police disclosure of suicide attempts to outside agencies, such as the FBI and border services, through the Canadian Police Information Centre (CPIC) database.
“We will be evaluating what impact this development may have moving forward,” Beamish said of the new background check policy adopted by Toronto police.
How and when border agents, such as U.S. border officials, access non-criminal mental health files of travellers became a high-profile issue following the case of Ellen Richardson, an Ontario woman denied entry to the U.S. in 2013 due to a suicide attempt made the previous year. Unable to travel to New York, she lost out on a $6,000 cruise vacation.
Former information and privacy watchdog Ann Cavoukian launched an investigation that revealed similar incidents where Canadians with non-criminal mental health police records were stopped and questioned when leaving the country.
“The untenable practice of automatic, default sharing of police information related to suicide attempts cannot continue. Full stop,” Cavoukian wrote in her April 2014 report.
Two months later, Cavoukian made the rare move of launching legal action against Toronto police to stop the disclosure of suicide attempt data, saying the force needed to stop entering mental health records into the (CPIC) database. Information in CPIC is shared with outside agencies through the RCMP, including U.S. border officials.
But Toronto police spokesperson Meaghan Gray said that, while the force is still putting information related to mental health into CPIC, changes have been made at the federal level to stop automatic access to these records.
“Since November of last year, U.S. Border Services no longer has routine access to our records,” Gray said. “Any access they do have is guided by criteria that have been created by the Information and Privacy Commissioner specific to the disclosure of records to non-police agencies such as border services.”
A spokesperson for the IPC could not respond by press time to a question about what effect, if any, that change has had on the court case against Toronto police.
Sukanya Pillay, executive director of the Canadian Civil Liberties Association, commended the Toronto police for halting the release of mental health records in background checks. But the CCLA continues to be concerned about access to mental health information by other agencies.
“It does raise the question of the kind of information that is stored in databanks and who has access to it,” she said. “Not only who has access to such information inside of Canada, but also who has access to such information outside of Canada.”
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