Thursday, May 28, 2009

Court of Appeal allows police disclosure of withdrawn charges pursuant to a consent for a Vulnerable Persons Search

In Tadros v. Peel (Police Service), the Ontario Court of Appeal held that police can disclose the existence of charges withdrawn where the person consents to a Vulnerable Persons Search for the purposes of employment. The Court left open whether disclosure could occur in the absence of consent pursuant to the relevant provisions of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M. 56 or the Police Services Act, R.S.O. 1990, c. P. 15.

The respondent, Tadros, had been charged with four counts of sexual assault and four counts of sexual exploitation against children who lived in his group home. Ultimately, the charges were withdrawn when Tadros entered into a peace bond. Subsequently, Tadros sought employment and consented to a Criminal Records Search and Vulnerable Persons Search by the Toronto Police Service. When he learned that the Peel Service had disclosed the charges to the Toronto Police Service, Tadros brought an application for an order requiring the Peel Police Service to expunge any reference to the withdrawn criminal charges from their records. He was successful in the lower courts.

The Court of Appeal allowed the appeal and set aside the injunction. The Court reasoned that because Tadros had already received the results of a Criminal Records Search and was then asked for further consent to disclose additional information for the Vulnerable Persons Search, he should have reasonably assumed that information about the eight charges may be disclosed. Second, even if by consenting, he was unaware that the withdrawn charges would be disclosed, he became aware when he received the reports and was turned down for the jobs he was applying for. The Court, therefore, concluded that Tadros had given his consent to the disclosure of the eight charges, and therefore set aside the injunction order made by the Superior Court.

Tadros also cross-appealed the lower court holding that the disclosure of information did not violate his rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms. The cross-appeals were dismissed. With regards to s. 8, the Court held that the respondent’s privacy was not violated because the Peel Police Service had lawfully obtained and retained the information. With regards to s. 7, the Court held that disclosure by one police service to another did not infringe on the respondent’s liberty or security of the person. Tadros also failed to identify an operative principle of fundamental justice even assuming there was an infringement of his liberty or security of the person.

Posted by Ashley Paterson (Law II) (Summer LEAP Intern)

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