8
SUBMISSION OF ARCH DISABILITY LAW CENTRE
To the Ontario Human Rights Commission
in response to
Draft Policy on Mental Health Discrimination and Police Record Checks
April 8, 2008
Lana Kerzner
Staff Lawyer
ARCH Disability Law Centre
425 Bloor Street East, Suite 110
Toronto, Ontario
M4W 3R5
Tel: 416-482-8255, 1-866-482-2724
TTY: 416-482-1254, 1-866-482-2728
Fax: 416-482-2981, 1-866-881-2723
www.archdisabilitylaw.ca
Preface
ARCH Disability Law Centre (ARCH) makes this submission in response to the Ontario Human Rights Commission’s public consultation on its Draft Policy on Mental Health Discrimination and Police Record Checks (Draft Policy).[1]
ARCH is a member of the Mental Health Police Records Check Coalition (Coalition). ARCH supports the Coalition’s submission to this consultation. ARCH’s submission contains additional comments and recommendations based on what we have heard from the disability community. This includes callers to our summary advice and referral service, clients, board and community members who have had experience with the mental health system and police record checks.
Based on the number of people negatively affected by police record checks and the gravity of the impact that these checks have on people’s lives, it is essential that a strong and comprehensive approach be taken to addressing the problem highlighted in the Draft Policy. ARCH supports the Commission’s initiative of addressing the problems consumer/survivors[2] and others face when their encounters with police under the authority of Ontario’s Mental Health Act[3] are disclosed through police record checks.
About ARCH
ARCH is an Ontario-based community legal clinic that is dedicated to defending and advancing the equality rights of people with disabilities, regardless of the nature of disability. ARCH is governed by a volunteer board of directors, a majority of whom are people with disabilities. We provide a telephone summary advice and referral service to Ontarians with disabilities and represent individuals as well as provincial and national disability organizations in test case litigation at all levels of tribunals and courts. We provide education to people with disabilities on disability rights and to the legal profession about disability law. We make submissions on matters of policy and law reform. ARCH maintains a web site on disability law at www.archdisabilitylaw.ca.
ARCH works closely with mental health community groups and consumer/survivor organizations to advocate for the full inclusion and citizenship of consumer/survivors in all aspects of Canadian society.
ARCH’s Foundational Premise regarding Police Record Checks
Debate about police record checks centres on the tension between protecting vulnerable individuals from harm on the one hand and protecting the privacy of personal information on the other. It is ARCH’s view that information about contact with the police pursuant to the Mental Health Act should never be disclosed as part of a police record check. This view was also articulated in the Coalition’s submission in this consultation.
ARCH’s main concern with the Draft Policy is that it approves of disclosure of police contacts related to the Mental Health Act through police record checks in certain circumstances and based on individualized assessments.[4] Such disclosures are a fundamental violation of an individual’s privacy without furthering the goal of protecting the public from harm. Without justification, they violate the legitimate expectation of the right to have health information held private, and expose individuals to discriminatory and exclusionary treatment.
Police Assessments of Mental Condition
The Mental Health Act requires police to assess mental condition. It provides the police with statutory authority to take an individual to an appropriate place for examination by a physician when several criteria are met. The criteria include a police officer’s opinion that “…the person is apparently suffering from mental disorder …” that is likely to result in serious bodily harm to him/herself, another person or serious physical impairment.[5] However, relying on such police assessments to predict safety is problematic in light of their lack of expertise in this regard. Indeed, the Ontario Court of Appeal,[6] in the context of s.11 (now s.17)[7] of the Act, recently stated that “…police officers are not trained in the diagnosis of citizens….”[8] The Court went on to state that it would be helpful for police to have appropriate training in relation to the evaluations required of them under the Act.[9]
ARCH is aware of situations where the physician’s examination does not confirm the police’s initial assessment that an individual is suffering from a mental disorder. ARCH suspects that while some police assessments of mental condition are accurate, many are not. Accordingly, disclosing these as part of a police record check is a misleading indication of safety risk. Ultimately, relying on the police assessments relating to mental condition will often result in incorrect or misleading conclusions.
Mental Health Contacts with Police and Safety
Police record checks are often used to assess safety risk where an individual will have regular or unsupervised access to vulnerable people. While there is an obvious connection between criminal behaviour and risk of dangerousness, no such connection necessarily exists relating to people with mental health problems who are in contact with the police.
As stated in the Draft Policy, the reality is that “… people with mental illness who do not have a substance abuse problem are no more likely to be violent than the general population.”[10] As such, even where the police may be correct in their assessment of mental condition, interactions with police under the Mental Health Act are not necessarily accurate indications of safety risk. Disclosing such information, therefore, serves no purpose. Indeed, if an individual with mental health problems behaves dangerously, one would expect that their actions might likely violate the Criminal Code.[11] Contact with the criminal justice system would be disclosed in the same manner as for all other members of society. It is essential to be mindful of the distinction between criminal behaviour and that of people who experience mental health problems. While the former may well be an indication of a safety risk, the latter is not.
An Integrated and Broad Approach is Essential
Eliminating the practice of disclosing information in police record checks relating to contact pursuant to the Mental Health Act will be a substantial undertaking involving many players and approaches. ARCH recognizes that this goal cannot be achieved entirely through efforts of the Commission. For example, while privacy interests are a central aspect requiring exploration, it is the Commission’s position that the Ontario Human Rights Code (Code)[12] does not deal directly with privacy concerns.[13]
Therefore, while ARCH and other stakeholder submissions aim to recommend ways in which the Draft Policy can be strengthened, a human rights approach, while furthering the goals of equality and inclusion, cannot provide a complete solution to the problem. It is ARCH’s view that no single law or agency will be able to effectively address the problem on its own, without collaboration. Similar to the limitations of a human rights approach, it has been stated that “[w]hile privacy laws place some constraints on what information may be disclosed and how it is used, they are not always well designed to deal with this particular kind of problem.”[14] Commissioner Cavoukian has articulated her concern that privacy legislation does not contain the mechanism necessary for properly addressing the issue and that specific government legislation may be required.[15]
Broader Legal Context
While current practices relating to police record checks give rise to human rights concerns and necessarily involve the application of the Ontario Human Rights Code, other laws are also relevant.
A recent decision of the Ontario Superior Court of Justice[16] illustrates the relevance of several pieces of legislation to an analysis of police record checks.[17] The following are some pieces of legislation that have been referenced in canvassing this issue:
· Mental Health Act[18]
· Municipal Freedom of Information and Protection of Privacy Act[19]
· Personal Information Protection and Electronic Documents Act[20]
· Police Services Act[21]
· Criminal Records Act[22]
ARCH is concerned that the Draft Policy does not address these laws satisfactorily. While we understand that they are not within the purview of the Commission, the Draft Policy is misleading in that it has the appearance of being a complete treatment of the problem. Those to whom the policy applies, including police services, may erroneously believe that the Code is the only law with which they need to comply. We recommend that the Draft Policy more directly and clearly articulate the reality of the many relevant laws and clearly state that while compliance with the Code is necessary, police services and other organizations must comply with other applicable laws as well.
Collaboration
ARCH further recommends that the Commission cast a wider net in fashioning a solution to the police record check problem. For example, the Commission should consider collaborating with the Information and Privacy Commissioner/Ontario, Office of the Privacy Commissioner of Canada, other government ministries and departments, consumer/survivors and organizations that advocate for and support them, and police services and associations, to name a few possibilities.
Jurisdictional Review
Other jurisdictions have recognized the concern relating to police record checks and have introduced specific legislation in this regard.[23] There is no indication in the Draft Policy that a review of approaches in other jurisdictions has been undertaken. ARCH encourages the Commission to review these approaches and inform itself of experiences from other jurisdictions before finalizing its policy. It will be helpful to determine whether there are aspects of these approaches which have been successful and can be incorporated into the policy and to avoid those that have been unsuccessful.
Systemic Approach to Addressing Police Record Checks
ARCH recommends that the Policy focus more directly on systemic approaches to addressing discrimination in relation to police record checks. The Policy should articulate the need for police services and organizations to take a rights-based approach. It should be made clear that individualized assessments must be undertaken from the perspective of ensuring that a person’s human rights are fully respected, rather than from the perspective of taking the minimal degree of action necessary to prevent a human rights complaint.
The focus of the Policy should be proactive. Police services and organizations must be reminded that discriminatory action in relation to disclosures of police records has immediate and irreversible consequences. When an individual’s private mental health information has been disclosed to a potential employer, no human rights complaint or remedy will reverse the violation of privacy that has occurred.
Appeal Process
The Draft Policy states that police services should have a formal process for individuals to appeal decisions made regarding the inclusion or characterization of information disclosed.[24] ARCH recommends that the Policy contain more details about the required appeal process to ensure that appeals afford meaningful and fair reviews. In particular, police services should be required to carefully devise their appeals process to ensure that it is fair and impartial, easy to follow, expeditious and allows for appeals prior to disclosures being made to the requesting agency. As the Draft Policy states, the process should clearly be communicated to all individuals who are affected by police record checks.
Policy Implementation
Training
The Draft Policy relies heavily on individualized assessments being made. To ensure the quality and integrity of individualized assessments, it is essential that those who conduct the assessments have a firm understanding of human rights laws, principles and policies, and such other information required to conduct the assessments. The Draft Policy recommends that best practices for police services include training people within the police service responsible for administering the process or screening records on the relevant human rights considerations.[25]
ARCH recommends that the Policy’s statement regarding training be stronger. Training should be a requirement rather than simply a best practice. We further recommend that the training should be conducted by individuals who have expertise in human rights and other relevant concerns, such as safety.
Guide for Police Services and Other Organizations to Follow
The Draft Policy contains important details and background information. It would be useful for the Commission to create a companion document for police services, organizations and individuals who are affected by the Policy. This document would distill from the Policy only the requirements and details that organizations need to follow. ARCH is concerned that organizations may not comply with the Draft Policy because the steps that they need to take are not clearly set out in one place. A companion document could fill this void.
Information for the Public
ARCH’s experience, based on inquiries we receive, is that members of the public often do not know that their interaction with police in relation to the Mental Health Act will become part of their police record and nor are they aware of their rights with respect to disclosure of their records. Enforcing their rights through human rights complaints and any applicable appeal mechanism requires that they know the rights to which they are entitled. Informing the public, then, should be integral to the Commission’s activities regarding police record checks. The Commission should create information material for people who want to know about their rights with respect to police record checks. This should contain a summary of the relevant human rights laws and policies as well as provide details about how to make complaints and appeal.
[1] Ontario Human Rights Commission, Policy on Mental Health Discrimination and Police Record Checks (Draft– For Consultation) (28 November 2007), online: <http://www.ohrc.on.ca/en/resources/Policies/ mhdraft/pdf> (“Draft Policy”).
[2] This submission uses the term “consumer/survivor” to describe people with mental health problems. There are several other terms used to describe people with mental health problems and there has been long standing debate and no consensus on appropriate terminology. Other terms in use include: psychiatric survivors, psychiatric disability, mental disability and people with mental illness.
[3] R.S.O. 1990, c. M.7.
[4] Draft Policy at 13-14.
[5] Mental Health Act, supra note 3 at s.17. Note that s.17 of the Mental Health Act is not the only section that involves police contact with persons with “mental disorders”. See, for example, s.16 where the police may act on an Order of a Justice of the Peace to take the person for examination by a physician.