Back in April I wrote a somewhat sarcastic article here on slaw.ca criticising the new Road Safety Act (“RSA”) as allowing “convictions without trials” (http://www.slaw.ca/2009/04/22/8208/). The story took on a bit of a life of its own resulting in some TV appearances that in turn generated a fair bit of commentary from the general public. One theme that ran through a vocal minority of those who called in to the talk shows took me to task for “overreacting” or being “alarmist” in my complaint that the RSA authorized police to issue tickets from which there is no appeal. I was reminded that charges under the RSA were not criminal and that police could be trusted to charge the right people. I retorted that the day might soon come in which even criminal charges were treated in this manner and that, in the name of expediency and ‘safety’ (whatever that means), we were giving up the very foundation of due process on which our legal system rests.
Sadly, it took under two months for the Ontario Court of Appeal to prove me right.
Last week Magdy Tadros learned the hard way that the presumption of innocence just ain’t what it used to be. Tadros was a social worker operating a group home in 2002 when he was arrested and charged with a series of sexual offences arising out of complaints made by some children in the home. A year and half later in October, after careful analysis by the assigned crown attorney, all charges against Mr. Tadros were withdrawn. Tadros entered into a Peace Bond with the court promising to abide by certain conditions while stating through counsel clearly on the record that he “does not acknowledge the facts alleged in the information”.
Understandably, Tadros thought his frightening ordeal was over with. He returned to the task of re-establishing his career and sought employment at a number of facilities as a social worker. As is standard practice, he consented to criminal background checks along with a vulnerable person sector screening. No doubt it came as quite a shock to Mr. Tadros to learn that information contained in his screening included the fact that he had been charged with sexual offences against children even though all such charges had been categorically denied by him and withdrawn by the crown. Not surprisingly, this disclosure threw a wrench in Tadros’ plan to get back into the social work field. He applied to the Superior Court of Justice (“SCJ”) and was granted an order prohibiting Peel Regional Police from disclosing the fact that he had been charged on future screens — until now.
In a dizzying judgment that jumps from analysis of privacy laws to Charter scrutiny, the Ontario Court of Appeal (“OCA”) unanimously reversed the decision of the SCJ stating the “right to liberty does not include the right to censure accurate information lawfully held.” The full text of the decision can be found at http://www.canlii.org/en/on/onca/doc/2009/2009onca442/2009onca442.html.
In a display of blinding naiveté the OCA suggested that “in a case where withdrawn charges which were false are disclosed, the potential employee has the ability to explain the circumstances to the proposed employer.” Say what now? The assumption that prospective employers will respect the presumption of innocence enough to ignore false allegations that resulted in criminal charges is laughable. To suggest to someone in Mr. Tadros’ position that they have merely to “explain the circumstances to the proposed employer” is to miss the fact that Tadros already did exactly that in the forum most suited to ferreting out the truth of these allegations – our courts of law. Having had the charges against him withdrawn, he should never be placed into the position of having to explain to anyone why some police officer somewhere once chose to lay a false charge against him. That’s the whole point of a justice system.
And so we come full circle. The RSA recently expanded the authority of police officers to lay traffic charges with serious criminal repercussions without any right of appeal or resort to any trial. Now, in the Tadros case, the OCA has authorized police not to worry too much about the criminal trials either – after all, if the suspect gets acquitted, you can still just tell everyone what he was charged with. Good luck explaining that one.
This is appalling! How out of contact with reality are these judges? No wonder people don't trust the justice system – let's hope he appeals to the SCC.
Unfortunately, an appeal to the SCC is going to be a tough hill to climb as the unanimous 3-0 decision leaves no 'as of right' appeal route. I understand there has been some discussion about a broader constitutional challenge to the underlying statutes that permit police forces to retain such records but don't hold your breath.
It's almost a year later: Is there an update? Was an appeal to the SCC filed?
Lance, an application for leave to appeal to the SCC was dismissed in December of 2009.