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Punishing the Non-Convicted Through Disclosure of Police Records

Published onMar 01, 2023
Punishing the Non-Convicted Through Disclosure of Police Records

Corresponding Author:

Paula Maurutto [email protected]


As police records expand with big data analytics, so too has the range of non-conviction information seeping into the public domain through criminal background checks. Numerous studies have documented the negative effects of background checks for those with criminal convictions, but less understood are the effects of non-conviction records. We draw on 8 focus groups and 52 interviews to understand how the release of non-conviction records are: 1) creating new institutional risk management pressures for police institutions, 2) expanding the role of employers as arbiters of risk, 3) redefining understandings of “the risky subject” to include victims, those with mental health challenges, and other innocent individuals subject to police contact, and 4) raising critical legal questions about privacy and presumptions of innocence.

Keywords: police background checks, risk, criminal record, non-conviction records, big data


In many English-speaking Western countries, a rise in big data analytics, preventive security, and risk governance has extended the reach of criminal justice, pulling more people into its web, resulting in punitive consequences for a wider range of individuals (Garland 2001; Mayson 2015; Zedner and Ashworth 2019; Brayne 2020). One preventative strategy that rapidly proliferated over the past decades is the request for police background checks. Considerable research has documented the far-reaching effects of criminal background checks (Archer and Williams 2006; Jain 2015; Uggen 2000; Lageson 2020). However, less attention has been paid to shifts in the content and governance of these records. The information documented in background checks has vastly expanded along with their public availability; many record checks now include data that goes beyond formal convictions to include non-criminal details that presumptively mark individuals as risky.

We examine how police background checks in Canada have expanded in recent years to include a range of non-conviction data under the guise of preventative security. The non-conviction data captured and disclosed in Canadian police background checks can encompass allegations, mental health apprehensions, withdrawn charges and acquittals, but also non-criminal contact with police. Our study demonstrates that the release of non-conviction data marks individuals as risky and operates as a form of pre-punishment. It extends the gambit of the risky subject beyond the traditional targets of crime control to include a broader segment of the population with no offending behaviour. Moreover, it creates new governance practices that impact police, employers, and legal provisions. Our study focuses on shifts in Canadian non-conviction police records, but our findings are relevant to an international audience interested in how preventative security and precautionary logics are redefining the parameters of risk.

We illustrate how legislative reforms have amplified the range and content of police record checks. Background checks are not fixed documents, rather they are continuously shifting, and changes in their content can redefine penal boundaries. The indiscriminate release and expanded range of police records information has a multiplicity of impacts; we highlight key issues in five sections. First, we review how record-checking practices operate and have changed over time. Second, to demonstrate the effects of these practices on police services, we build on Ericson and Haggerty’s (1997) and Power’s (2016; 2004) work to underscore how policing departments are, in part, managing their reputational risk and public liability by divulging more non-conviction records. Third, we show that expanded police records augment the role that employers play as arbiters of risk. Employers often interpret non-conviction data as evidence of a potentially risky individual, who is then treated in a similar fashion as those with formal convictions. Fourth, we show that non-conviction records expand punitive outcomes for a broad spectrum of individuals with no formal convictions but who have police contact; those impacted can include innocent victims or people with mental health challenges. We argue that non-conviction records contribute to what Zedner and Ashworth (2019) describe as preventative security by identifying applicants who may pose a future risk in the workplace or elsewhere. Marginalized and impoverished communities are the most affected by these practices. However, in our study, we also found that these punitive practices were creating increased barriers for a segment of the middle class, particularly those requiring internships or placements in order to complete their degree or qualify for professional accreditation. Finally, in part five, we argue that disclosing non-conviction police records undermines legal provisions, such as the intention of acquittals and withdrawn charges, as well as court diversions. This raises critical legal questions that have yet to be fully analyzed in the academic literature, adjudicated by courts, or addressed by police agencies.

The Impact of Criminal Records

Requests for police background checks are becoming a normative preventative measure, increasingly common in the public sector and extensively used in private businesses and institutions. Risk-averse decision-makers are using background checks to screen prospective employees, educators, volunteers, students, tenants, and insurance clients. These checks are increasingly used by border patrols, in immigration cases, in child-custody disputes, for foster care or adoption, and to qualify for credit, social provisions, or professional licensing. In some American states, they are required for college admissions. Even some elite dating companies request criminal record checks (Pager 2003; Uggen, 2000). Since 9/11, police departments have experienced a precipitous increase in the number of requests for record checks. In the US, record checks were used by approximately 50 percent of employers in 1996; that number increased to more than 80 percent by 2004 and jumped to 93 percent by 2010. In Canada, 50 to 70 percent of employers regularly request record checks (CCLA 2014a; JHSO 2018). In the Canadian city of Toronto, approximately 10,000 police requests were made in 2003; by 2012, that number swelled to 117,384 (CCLA 2014b).

Most international research on criminal records focuses on the detrimental effects for those formally charged, with an emphasis on how records impede employment for marginalized groups (Holzer et al. 2004; Pager, 2003; Uggen, 2000; Uggen et al. 2014). The far-reaching punitive impacts of criminal records extend punishment throughout the lifecourse and create personal, social, and economic obstacles; they produce barriers to employment, volunteer, and educational opportunities (Boshier & Derek 1974; Bushway et al. 2011; Harris and Keller 2005; Henry and Jacobs 2007; Lageson 2020; Lam and Harcourt 2003; Pager 2003; Stoll and Bushway 2008; Western et al. 2001). Criminal record disclosures can also restrict citizenship, voting, jury service, immigration, and mobility (Vargas 2006). They limit access to social services including secure housing and public assistance (Mulé and Yavinski 2006; Pinard 2010). For example, in the US, entire families can be evicted from public housing if a member of their household is convicted of a drug-related offence, and many face homelessness because landlords are reluctant to accept tenants with criminal records (Mulé and Yavinski 2006). These effects are more pronounced for racial minorities and other marginalized groups (Pager 2003; NCLC 2019) and have been identified as a central factor contributing to a racial caste system in the US where criminal records function as the “new Jim Crow”, furthering discrimination and punitive outcomes for racial minorities (Alexander 2011; Miller and Stuart 2017).

Despite these devasting impacts, some have argued for the necessity of releasing non-conviction records, particularly in cases related to domestic and sexual assault cases. Yet, Walklate and Hopkins (2019) argue that such disclosure policies are at best limited and fail to guarantee the safety of victims. Fitz-Gibbon and Walklate’s (2017) analysis of Clare’s Law in England and Wales documents how access to records of violence can produce “a false sense of security.” Moreover, disclosure practices can include both suspected violence, or even malicious allegations made by a former partner (Bessant 2015). In dual charging cases, where both partners seek protection orders, the disclosure of non-conviction information can operate to penalize victims (Fitz-Gibbon and Walklate 2017). Given the devastating impact of disclosure, Fitz-Gibbon and Walklate (2017) caution that information ought to be restricted to situations where there is a clear and immediate threat, that is not merely speculative.

The socioeconomic instability generated by criminal records impedes rehabilitation and reintegration, and ultimately increases future interactions with the criminal justice system (Love 2006; Roberts 1996; Uggen 2000). Studies of collateral consequences conclusively demonstrate that lack of stable employment and housing increases risk of recidivism and prevents successful re-entry (Archer and Williams 2006; Uggen 2000). In studies examining workplace practices, little empirical evidence demonstrates an association between criminal records and illegalities in the workplace (NCLC 2019). It is important to note that even with a subsequent acquittal, arrests have a regulatory function independent of whether a conviction occurs (Jain 2015). Scholars have shown how prosecutors overcharging of misdemeanours contributes to the production of formal records that can be subsequently used to secure future convictions and resources (Jain 2015, Kohler-Hausmann 2018). Less understood is how background checks affect the prospects of those who are not criminally charged or those who are intentionally diverted from normative criminal justice practices.


We used a mixed methods approach that included: 1) analyses drawn from our participation in a collaborative research network with police and civil rights organizations, 2) 8 focus groups, and 3) 52 semi-structured qualitative interviews with individuals working on issues related to police background checks.

In 2014, we participated in a collaborative study with a team of civil rights organizations and police to develop recommendations for the Ontario legislation regulating police record checks. More specifically, we worked with two directors of civil rights organizations and two police officers, each from different Ontario police departments, who were assigned to research problems with background checks. As part of this research, we held a series of 8 focus groups with police, government, community organizations, employers, service providers, and lawyers. The objective of these focus groups was to understand the broad impacts of criminal records. The focus groups were approximately two hours in length. They were audio recorded, transcribed, and the data was analyzed for common themes and patterns. After each focus group, we discussed and recorded our respective reflections and identified emerging themes in memos and meetings.

We also took notes on our discussions and meetings with the police and senior administrators from civil rights organizations, to better understand our collaborators’ diverse perspectives. Through this direct involvement, we learned about the range of information released in police background checks, the organizational concerns and pressures that affected police departments, the legal issues raised by civil rights organizations and lawyers, as well as how employers interpret information. This participation helped us identify key themes that informed our subsequent interview guides and thematic coding. We drew on these insights to write our independent submissions to the government regarding the Ontario Police Record Check Reform Act, 2015, enacted in 2018. The Act included a sunset clause requiring the Ontario government to reconsider the reforms in 2020. In response, we again engaged in discussions with two members of civil rights organizations and two lawyers to identify concerns with the proposed amendments. This research informed a subsequent 2021 government submission responding to the Ontario Police Record Checks Reform Act, Exemption Proposals of 2021. We recognize that our involvement in efforts to remove barriers to records may contribute to a biased position in the field. To mitigate this, we supplemented our research with interviews designed to capture a fuller range of views and concerns.

We conducted 52 interviews with a variety of stakeholders. We adopted purposeful and snowball sampling methods to ensure we recruited a broad range of participants. We also drew from the contacts established through our collaborative research to identify key participants who were knowledgeable about the impact of non-conviction records. This approach may have skewed our results, however, it ensured we interviewed a range of key individuals working in diverse fields who could offer insights and share their perspectives. This provided a broader understanding of the variable impacts of non-conviction records in different sectors. Most studies focus on the effects on those with criminal records. While this is a central concern of this research, we also sought to understand how non-conviction information variably affected different sectors, including police organizations and employers, as well as legal and court processes. Based on this, we developed a list of key participants who could share their different perspectives.

More precisely, we conducted interviews with 21 program directors, managers and service providers from agencies working with criminalized populations, focusing on those directly assisting with record suspensions and pardons. These interviews explored the range of non-conviction information appearing on their clients’ background checks and the short- and long-term effects of disclosure. To understand the practical employment implications of non-conviction records, we interviewed 12 employers and 8 professionals from third-party data companies, who explained how they use and interpret background checks. To understand the legal and court ramifications of non-conviction records, we also interviewed 11 lawyers, judges, and civil rights advocates. Five of the lawyers and judges were selected because of their work in specialized courts. These are courts that address the needs of a unique community and are reserved for less serious offences. They also tend to use diversion more regularly and issue suspended and absolute sentences meant to prevent collateral consequences. These interviews focused on the tensions between the disclosure of non-conviction information and legal protections designed to divert and shield those accused from the impact of a criminal record. These semi-structured open-ended interviews lasted one to two hours, averaging 90 minutes.

We transcribed and coded the data adopting a “codebook thematic analysis” model (Braun and Clarke 2021; 333), organized using NVivo software. We developed our initial codebook after the focus groups and devised our thematic tree as we conducted subsequent interviews. We identified the central arguments and issues raised by each of the stakeholder groups and looked for common patterns and nuances across these groups. Codebook thematic analysis leans away from neopositivist priorities related to reliability and avoiding ‘bias.’ Rather, it rests on the notion that knowledge is “situated and contextual” and that it is valuable to identify key themes early on while retaining flexibility with evolving fieldwork and emerging themes (Braun and Clarke 2021; 334). This pragmatic qualitative approach to data collection and coding was nourished by our participation in collaborative research networks. In the early stages, those networks, along with focus groups, helped us identify the four spheres most affected by non-conviction records. Later, the interview data helped us fill in the gaps and better understand how shifts in record disclosures have impacted each of these spheres.

To alleviate ethical concerns, and because our study included participants working alongside (and critical of) police, we do not include direct quotes from our interviews. This strategy helped us mitigate the risk of colleagues and network members identifying each other via speech patterns or personal expression styles. We analyze the main themes that emerged from the different stakeholder interviews and focus groups and paraphrase what they said. We diligently aimed to remain true to the content and intent of the original notes and quotes.

Scaling up the Contents of Records

International research on criminal records generally assumes a collective understanding of what constitutes a background check; the structure and contents are rarely questioned. However, criminal records are malleable, flexible documents that are continuously modified. They are affected by legislation, policing priorities, pressure from the public, and decisions by front-line workers completing the documents. In Canada, background checks are managed locally by police departments, but are subject to federal and provincial legislation. Federal legislation stipulates the types of criminal records checks, but regional jurisdictions (provinces and territories) can also enact laws regulating the specific content of criminal records. At the local level, we found that police departments and front-line workers tasked with completing these reports often selectively interpreted legislation. The result is considerable variation in what is disclosed, not only across the country but between local police departments.1 Moreover, with increased demand for police background checks, smaller local police departments are offloading record-keeping to third-party companies, leading to additional inconsistencies.

Federally, the Canadian Criminal Records Act (R.S.C, 1985, c. C-47) allows for three distinct types of record checks. The least detailed is the Criminal Record Check (CRC), which typically identifies whether an individual has been charged or convicted of a criminal offence; it includes summary and indictable criminal convictions included in the Canadian Police Information Centre (CPIC) database.2 The Police Information Check (PIC), also referred to as a Criminal Record and Judicial Matters Check (CRJMC), is a more detailed document that can include outstanding charges, arrest warrants, conditional discharges, as well as judicial orders. It may include non-conviction disposition information, depending on local police discretion (CCLA 2014a; OACP 2011; RCMP 2014).

In 2000, the federal government revised the Criminal Records Act to include a new document called the Vulnerable Sector Check (VSC). It was introduced in response to a series of high-profile sexual assault cases involving the abuse of Indigenous children who were forcibly placed under the care of mostly Christian churches. From the late 1900s until 2005, the Supreme Court of Canada heard several cases about the sexual and physical abuse of minors while under institutional care; many of these involved Indigenous children who, as part of the state’s colonialist and cultural assimilationist practices, were forcefully removed from their families and communities and placed in residential schools or foster homes, wherein many were subjected to repeated sexual, physical, and emotional abuse (RCMP 2018). These institutions were found criminally liable and responsible for child abuse and for ignoring their duty of care toward vulnerable children. An outcome of this legal action was legislative changes to the Criminal Records Act (6.3(3)) and the introduction of the VSC. It is important to note that the debates surrounding the adoption of the VSC ignored the colonialist practices perpetrated by church-state partnerships that enabled widespread abuse of children, focusing instead on individual actors rather than longstanding state practices. The VSC was, in part, justified as a mechanism that would enable police to disclose non-conviction data of a sexual nature; it coincides with broader Western trends that have produced a new discourse regarding the rising threat of sexual predators against whom extreme preventative measures are legitimated to “protect” the vulnerable (Corrado 1996, Hudson 2006, Robinson 2001, Simon 1998; Zedner and Ashworth 2019).

The VSC transformed and broadened the scope of background checks. It was established as a preventative security measure originally intended for restricted use to protect the most vulnerable. However, since its introduction, requests for VSCs have increased as employers opt for the most extensive form of screening. From an employment perspective, VSCs are viewed as critical to workplace safety because they enable enhanced screening of prospective employees. These documents have become composite risk profiles that can contain a range of police contact data that far exceeds traditional reports on past convictions. In addition to formal criminal convictions, a VSC can identify outstanding charges, warrants and judicial orders, peace bonds, absolute and conditional discharges, findings of not criminally responsible due to mental disorder, and pardoned offences. Non-conviction information can include calls for mental health support or apprehensions, domestic violence calls (even as a victim), disturbances, witnesses, association with people under police supervision, persons of interest, and other forms of police contact such as 911 calls. A VSC may contain information collected by police in routine occurrence reports. For example, it can document information collected through Community Contact Reports, commonly referred to as carding, street checks or ‘community engagement’, whereby police stop, question and record information on individuals even though there is no offence being investigated. These controversial practices occur when police officers randomly approach individuals in public, typically on the street, and ask for identification without any suspicion or intent of arresting anyone. The information is recorded on contact cards that are integrated into official police records. VSC can also report allegations that do not result in a criminal arrest or charge, as well as information about stayed, acquitted, or withdrawn charges (often within 24 hours). These disclosures are concerning because approximately half of adult criminal court cases in Canada result in withdrawn charges or a stay; approximately 125,000 non-conviction records are created each year because of withdrawn charges, stays, or acquittals (CCLA 2014a; JHSO and CCLA 2014). Given the expansiveness of VSCs, a significant portion of the population is at risk of having their non-conviction records disclosed through background checks.

Police and Institutional Risk Management

The increasing demand for VSC occurs against a backdrop where big data and smart policing practices are driving the collection of vast amounts of intelligence. Crime mapping, hot-spot policing (Braga and Weisburd 2010), predictive algorithms, network models (Papachristos et al. 2013), and a range of data-driven surveillance tactics (Ferguson 2017; 2020; Brayne 2020) rely on big data collection. Data systems are networked across multiple sites, allowing front-line police officers access to several forms of intelligence. Moreover, these models of policing have incentivized new law enforcement operations that include documenting a broader range of activities. Within this context, internal police records have expanded into a dragnet of policing where information is documented on persons of interest, suspects, associates, acquaintances, and police interactions with the public (Brayne 2017; 2020). As a result, digitized internal police databases are logging a broader range of non-conviction information – much of which is intended for police investigation and surveillance and not the public. Yet, we found evidence of “function creep,” a term used in criminology and surveillance studies to refer to the use of technologies beyond their original scope, where additional uses are demanded of the data that change its original purpose (Koops 2021). During our conversations and workshops with police, it became apparent that police often lose direct oversight over how the data, once collected for investigative policing purposes, may be repurposed in the context of disclosure and used for a different reason. Police have considerable oversight and discretion over what is documented in their databases and subsequently disclosed to the public, however, decisions about access to data are also influenced by a number of external pressures.

In their seminal work, Ericson and Haggerty (1997) identify how one of the defining features of modern policing is the extent to which they have become new “communicators of risk.” As such, police must document knowledge about risk – not only for use in internal policing practices but also in response to external institutional demands. Police have become risk knowledge brokers, and information about security risks has emerged as a commodity to be bartered, sold to outside institutions, or made available for public consumption. Police organizations are increasingly required to provide information to employers, insurance companies, financial institutions, and welfare agencies, as well as other government institutions such as departments of motor vehicles, public health, and criminal courts. Internally, this practice has led to new risk organizational formats for documenting and organizing information. We see background checks as one of these risk organizational formats. Moreover, we argue that changes in their content have a corresponding impact on the governance and role of police as communicators of risk. With the growing demand for VSCs, police are tasked with identifying and flagging for the public not only those with formal criminal convictions, but also risky individuals. Police record checks are now used to authenticate the “risk-free subject,” an individual with no police contact, from the presumptively risky subject, those who pose a potential risk because of their contact with police. The addition of VSCs to police background checks adds a new risk format to the ways in which police function as communicators of risk.

VSCs also create new institutional risk management pressures where police, in making determinations about what data to release, are having to balance considerations of public safety, individual right to privacy, but also their own reputational risk. These considerations are emblematic of what Power (2016; 2004) refers to as reputation risk management. Power underscores how organizations, in this case the police, are under pressure to manage their liability both to their own institutions and the public at large. During our conversations and workshops, police indicated that the vast intelligence documented in police records is not intended for public consumption, but is central to police work. However, police departments often feel compelled to release a broader range of internal data; if they fail to disclose evidence on a VSC about an individual who is subsequently hired and commits an offence at work or against a vulnerable person, the police can be held accountable for placing the public at risk. Consequently, there is mounting pressure on police to release more information than they would otherwise. When police balance data considerations, preventative and public security typically overrides broader concerns over privacy and due process. As such, the broader content that can be disclosed in background checks is raising new internal governance questions surrounding accountability, liability, and reputational risk.

Given these institutional pressures, police welcomed legislative restrictions on the release of their records. They were actively seeking to change police guidelines and were lobbying for legislative reforms such as the Police Record Checks Reform Act (S.O. 2015, c. 30) that would limit the release of non-conviction information in Ontario. Other provinces and territories have also enacted policies restricting the release of information on criminal records (CCLA 2012; JHSO and CCLA 2014). Yet, despite their support for legislative reforms, police pushed for the inclusion of exception clauses that would continue to provide them discretionary oversight over the release of non-conviction records for a VSC. Moreover, the restrictions imposed under Ontario legislation are provisional and subject to sunset clauses that allow for these reforms to be repealed or revised, typically after five years. Ultimately, there remains considerable variation in the content disclosed across the country, within each province or territory, and even between police departments within a single region.

Employers as Risk Arbiters

The inclusion of non-conviction records in background checks amplifies the role of employers and other users in the arbitration of risk. Employers are not simply screening out applicants with a conviction, the VSC allows them to make determinations about potentially risky applicants. Employers reported that a job applicant with any police contact information is perceived as a poorer prospect and more likely to be denied employment. According to service providers and program managers, employers rarely receive training on how to interpret police background checks, moreover, they have little expertise, or understanding, of the difference between conviction and non-conviction reports. They often adopt precautionary practices and err on the side of caution to mitigate risk in the workplace, resulting in the denial of employment to innocent applicants.

We also found that employers are ratcheting up requests, opting for the most extensive screening tool even in cases when it is clearly unwarranted. VSCs are typically restricted to circumstances where an employee is in an ongoing unsupervised position of trust with, or have power over, a vulnerable sector. However, many large institutions request VSCs for most applicants, for example, hospitals often require VSCs for janitorial and cooking staff who do not meet the criteria of ongoing unsupervised access. Few large organizations differentiate between positions that necessitate VSCs and contexts where a less invasive form of check would suffice. In Canada, only a few provinces (notably British Columbia) have introduced oversight bodies to regulate who can obtain access to VSC. In addition, lawyers and civil rights advocates described the emergence of a new requirement, specifically “annual attestations,” where employees are required to annually declare any new charges (whether withdrawn, dismissed, or stayed). According to lawyers we interviewed, these practices undermine protections and exceed the strict parameters outlined in the Criminal Records Act (1985). Although labour unions are contesting the inclusion of annual attestations, their use illustrates the amplification of the precautionary logics used by employers (Ewald 2002; Ericson 2007).

Employers described how they are often under pressure from insurance companies to screen out potential risks (see also Ericson and Doyle 2004; Power 2016). One employer explained that insurance companies have threatened to terminate coverage if an applicant with any notation of potential risk is hired. For the most part, insurance companies were primarily concerned with criminal convictions, yet some employers explained that the fear of insurance coverage cancellation resulted in the rejection of applicants with non-conviction records. The interviews with lawyers and service providers noted that, when provided with non-conviction data, employers inevitably prioritize risk management in their workplace over equity or fairness.

The escalation of requests for background checks is a preventative measure that often operates as “security theater” (Zedner 2009: 22; Schneier 2006). One employer described record checks as a largely symbolic practice that purportedly enhances security, but really does little to reduce risk in the workplace. The intensified use of background checks is legitimated by claims that it improves security, but little evidence supports the broad use of criminal records. No studies have demonstrated that a prior record of police contact is a reliable predictor of employment-related crimes; rather, a growing body of empirical research on recidivism and desistance has found that after a few years, pending no new convictions, a prior conviction is no longer predictive of future criminal offending (Beck and Shipley 1997; Kurlycheck et al. 2006; Blumstain and Nakamura 2009; Bushway et al. 2011; Soothill and Francis 2009). Moreover, program directors and managers spoke about how background checks lead to a ‘false sense of security’ that undermines the development of effective workplace strategies and longer-term safety provisions for vulnerable populations.

Redefining the Risky Subject

The effects of the expansion of non-conviction data in background checks go beyond privacy and due process concerns: they redefine who is considered a risky applicant. This expansion reconfigures and extends the scope of criminal records in governing and managing individuals. Zedner and Ashworth’s (2019; Zedner 2007) distinction between the logic of preventative security and the logic of criminal law is helpful in highlighting how the practices of background checking can extend risk governance. Typically, the use of police records, much like criminal law, is aimed at excluding and punishing those with criminal convictions. Criminal law looks back in time and targets offenders with past transgressions. In contrast, preventative security is focused on future potential harms rather than actual offences. In the context of police background checks, the logic of preventative security extends the reach of crime control to encompass new categories of individuals who are innocent, but whose behaviour or status is defined as risky. It can also capture those ‘exposed’ to greater risk, such as innocent victims who are facing harm or those with mental health challenges. Within this context, individuals with a ‘clean record’ are authenticated as ‘clear,’ while those with any record notations are marked as ‘risky’ and, therefore, less desirable.

A central theme raised by service providers, lawyers, and civil rights advocates concerned the ways in which police interaction, even with a victim, could be redefined within a preventative framework as a potential risk. Within this broad configuration, those ‘exposed’ to risk – such as women experiencing ongoing sexual harassment – were sometimes redefined as a workplace safety concern to be disclosed in a VSC. For example, one service provider told us about a case where a woman who requested a VSC check as part of her job application at a daycare was informed that her sexual harassment by her boyfriend would be reported. A front-line police officer informed her that her record included a stalking notation: she had previously contacted police to have a peace bond issued against her former boyfriend, who was stalking her. According to the officer, the possibility of her ex-boyfriend harassing her at work posed a significant risk to the daycare and warranted disclosure. This example underscores how victimization, within the context of a VSC, can be redefined as a threat to workplace safety.

Similarly, program managers, lawyers and judges spoke about the stigmatizing and detrimental effects of reporting mental health apprehensions on VSCs. An emergency 911 call to the police in cases of a mental health crisis often results in a permanent police record that, once in a police database, can be disclosed. One program manager told us about a young man who had experienced a difficult time after graduating from high school. He threatened to kill himself and was sent to hospital after his concerned parents called the police. He was quickly released and eventually recovered from his depression. Years later, a record of police contact resurfaced when he applied for military service and had a requisite background check. His mental health record caused him tremendous difficulty with his application and nearly prevented him from joining the military and pursuing his professional aspirations. The stigmatizing effects of having mental health interactions released are well known (CMHA 2018), and service providers and program managers raised concerns that this could deter some individuals in crisis from calling for emergency services, thereby compromising their safety.

The police practice of ‘carding’ or ‘stop and search’ that appeared on VSCs was also identified by program managers and service providers as a targeted practice that undermined due process and presumption of innocence. This controversial intelligence-gathering practice occurs when police stop individuals on the street in the absence of a criminal offence and without resultant charges. Police log the encounter on contact cards that are then recorded in police databases. Many jurisdictions have restricted the release of carding information because police surveillance and carding are known to contribute to racial profiling and over-policing of racial minorities (Owusu-Bempah and Wortley 2014; Armory et al. 2019). Even though the release of this information is now limited, these documented encounters continue to make their way into VSCs. Service providers told us about several clients who were denied employment because of police carding disclosure.

Program directors and service providers noted that, although racialized individuals are disproportionately affected by non-conviction records, the middle class is increasingly impacted. Specifically, students and individuals seeking accreditation or licensing (i.e., in fields including education, law, and medicine) were increasingly denied placements or a license because of non-convictions appearing on VSCs. Service providers described how an increasing number of students finishing teacher’s college, social work, or medical school are shocked to learn that they do not qualify for their required placements due to their VSC reports – and as a result are unable to graduate. A service provider explained how a young woman who had finished her university coursework was denied access to a field placement and graduation because of a decade-old withdrawn charge resulting from being in the wrong place at the wrong time as a teenager. Despite the immediate withdrawal of the charge and crime-free history, it appeared on her VSC. Although she was able to clear her record and the impact on her was limited to stress, delay, and minimal financial loss, the process of clearing a record can take months and can result in individuals quitting school.

The use of non-conviction records in deportation hearings was another area of concern raised by interviewees. Lawyers and civil rights activists reported a range of contexts where withdrawn charges, informal police contact, and unproven allegations were being disclosed at deportation hearings. One lawyer recounted how a young, poor, immigrant mother arrested for stealing a small amount of food from a grocery store was affected by disclosure. Although her charge was withdrawn, several years later, the charge was used to deny her citizenship resulting in possible deportation, while the rest of her immediate family was granted citizenship. In another case, a young man ‘caught up’ in a stabbing incident but not directly involved was initially charged but later released and not convicted. The incident and its disclosure in a police record check contributed to his deportation. Civil rights advocates told us how in many of these cases, individuals also face language and economic barriers that make it difficult to afford – or even understand how to apply – to have these police records destroyed or to appeal their cases.

Together, these examples illustrate the unintended collateral damage of disclosing non-conviction information and the stigmatizing power of background checks. We found that the release of non-conviction information has similar effects to a formal conviction. Non-conviction records function as a form of “pre-punishment” that becomes encoded as a criminal antecedent. These forms of punishment operate beyond the purview of the courts, relying instead on determinations made by employers, front-line police officers, immigration officers and others who interpret and use background checks. The result is a layering of punishment that pervades people’s lives in insidious ways: those affected are subject to a variety of restrictions, increased marginalization and insecurity, and even pushed to illicit activities. These far-reaching effects extend the web of punitive control and pull legally innocent individuals into states of precarity and marginalization.

Undermining Court Diversion and Legal Protections

Lawyers, civil rights advocates, and service providers raised legal concerns with how the release of non-conviction records subverted legal protections. They argued that the release of these records undermined the intent of several legal protections enshrined in the Canadian Charter of Rights and Freedoms (1982, s6(2)(b)), the Criminal Code of Canada (1985), the Criminal Records Act (1985), and the Freedom of Information and Protection of Privacy Act (1990). These acts include safeguards specifically designed to limit access to police records. Yet as civil rights advocates described, the broad evidence contained within VSCs often undermines privacy protection, due process rights, and the presumption of innocence.

Non-conviction records typically have fewer safeguards protecting their release than conviction records. Lawyers and judges noted that clear federal guidelines protect the release of formal criminal convictions, but this is not the case for non-conviction records and other information in police databases. For example, Canadian legislation stipulates that those granted an absolute or conditional discharge have an active record at the federal level for a period of one to three years, after which the records are protected and sealed. Similar protections do not apply to non-conviction records. In addition, there are few ways of challenging the information that is included in a background check; the only real avenues for grievances are those facilitated by unions or human rights claims.

Moreover, non-conviction record disclosures undermine the intent of diversion, peace bonds, and other efforts designed to limit the stigma and impact of criminal records on the accused. Diversion is a sentencing alternative used in Canadian courts, where judges have the discretion to divert an accused (Wasik 2010). In diversion or specialized courts, which are reserved for lesser offences, an offender may not have to enter a guilty plea, and the charge is often recorded as withdrawn after the offender completes a court-imposed sanction, typically a treatment or restorative program. The intent of this option is to avoid the negative effects and discrimination associated with a criminal record and to keep from pulling those with minor infractions further into the web of the criminal justice system. The attraction of diversion court is that the accused avoids a conviction and the stigma of a criminal sanction, so many offenders opt for diversion when available. However, lawyers and judges spoke about withdrawn charges continuing to be disclosed through police checks, thereby subverting the intent behind diversion and specialized courts. Lawyers indicated that many of their clients expressed regret after choosing to participate in diversion. According to civil rights advocates, lawyers often failed to inform their clients, specifically those who plead guilty in return for an absolute or conditional discharge or a peace bond, that this information is subject to disclosure in a background check.

In the wake of these concerns, legislative bodies in some Canadian provinces and territories have introduced reforms to limit the range of non-conviction data documented in police background checks. In response to litigation and lobbying by civil rights advocates, British Columbia, Manitoba, Ontario, Quebec, Prince Edward Island, and Yukon Territory have recently instituted protections for job seekers with criminal records (CCLA 2014a). Most jurisdictions also introduced more stringent provisions for the release of mental health records, in acknowledgement of the discriminatory effects that it could have on persons with mental illness who encounter police. However, these provisions are continuously negotiated.

For example, in 2018, the Ontario Police Record Checks Reform Act (S.O. 2015, c. 30) was enforced to curtail the broad release of non-conviction reports. When completing a VSC, police were to consider factors such as length of time since the incident took place, as well as clear evidence of a pattern of harmful or predatory behaviour toward a vulnerable population. Information related to police contact was to be restricted, except when an applicant applies for employment related to national security, criminal justice (such as work in prisons or probation and parole), or other high-security positions. Moreover, mental health incidents were not to be disclosed unless they were related to violence or the threat of violence. However, these legislative reforms were introduced as temporary exemptions subject to a sunset clause. As this legislation comes up for review, police organizations have argued for broader exemptions that would provide them with increased discretionary control over the release of non-conviction records. This has been met with counterarguments by civil rights advocates who maintain the need for increased restrictions. Civil rights organizations have called for independent assessment bodies that would provide oversight and review the contents of VSC. British Columbia is the only province to legislate such centralized assessment bodies. These ongoing debates underscore the extent to which background checks are malleable documents whose contents are constantly in flux and contingent on multiple competing pressures and priorities.


Police background checks and the practice of disclosing non-conviction records are reconfiguring penal boundaries. With the intensification of institutional risk aversion and preventative security logics, the contents and types of information disclosed through police background checks will expand and produce pre-emptive exclusionary practices that further marginalize many individuals. We identified a range of non-conviction data including allegations, mental health apprehensions, withdrawn charges, informal police contact, as well as reports of victimization that are regularly disclosed through police background checks. Police record-checking practices are increasingly used to authenticate “risk-free individuals” while excluding presumptively risky individuals who are often innocent or not formally charged, but have experienced police contact.

In Part One, we explained basic functions and mapped key changes in police record-checking practices in Canada, identifying changes in their form and content. In Part Two, we described how increased demand for police background checks is creating new institutional risk management pressures for police departments to release more non-conviction data. As risk knowledge brokers, police are faced with growing information challenges as they seek to balance privacy with public safety concerns when determining what information to disclose. In a context where preventative security has become a common framework for how policing institutions operate, decisions about what constitutes a ‘risk’ for employment or other purposes are reciprocally fueling the disclosure of a greater range of information. In Part Three, we explored how the expansion in the content of police checks augments the role of employers as arbiters of risk. Employers rarely have the requisite knowledge to differentiate between conviction and non-conviction data, hence any notation on a criminal record can be interpreted as evidence of a risky person, who is then treated similarly to those with formal convictions. Non-conviction records disclosure expands the range and number of people excluded as risky beyond the traditional targets of crime control to include a broader segment of the population with no offending behaviour. In Part Four, we argued that for individuals not formally convicted, the disclosure of non-conviction records operates as a penal antecedent that marks and stigmatizes them as risky and operates in a similar manner as a criminal conviction. As a result, police background checks place more individuals at risk of conflict with the law, as legitimate avenues of employment and access to services are curtailed. The effects of these disclosures are far-reaching, impacting employment, housing, social services, citizenship, deportation, and mobility. Finally, in Part Five, we illustrated how the disclosure of non-conviction police records can subvert legal alternatives, such as court diversion, and undermine the intent of sentencing options like absolute or conditional discharges.

Internationally, there is a movement to limit the scope of criminal records (Henry and Jacobs 2007; Pijoan 2014). France, Germany, and other European countries have passed legislation allowing criminal records to expire following a specified period (Herzog-Evans 2011; Morgenstern 2011). In the UK, a landmark 2019 Supreme Court judgement called for the amendment of the Rehabilitation of Offenders Act 1974 and the Police Act 1997, to ensure that in cases with more than one conviction, the automatic disclosure of multiple convictions was removed regardless of the nature of the offence. Moreover, all youth cautions, reprimands and warnings were no longer to be reported (March 2020). In the US, 42 jurisdictions have to varying degrees implemented “Ban the Box” policies that reduce or remove questions about conviction history from job applications (Avery and Lu 2016; Vuolo et al. 2017; Smith 2014; Stoll and Bushway 2008; Henry and Jacobs 2007). In New York State, a “collateral consequence calculator” was developed to calculate the consequences associated with having a record, especially the effects on housing and immigration (Columbia Law School 2012). In Canada, a Senate Bill, S-258 (2019), which has yet to pass, is calling for a fundamental overhaul of the Criminal Records Act, including the expiry of criminal records after two years (for summary convictions) or five years (for indictable offences) after the completion of a sentence. These movements acknowledge that employers’ use of criminal records is a form of punishment that has prolonged and indefinite effects. Yet, this push for legislative restrictions is occurring against a backdrop of big data policing that is enabling ever more diverse police information to seep into the public domain. In addition to legislative reforms that restrict demand for record checks, attention needs to be paid to legislative loopholes that enable a growing range of non-conviction data to be disclosed.


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