Off the Record: A Critical Analysis of Youth Record Disclosure Practices

By van Wiltenburg, Chantelle | University of Toronto Faculty of Law Review, Winter 2018 | Go to article overview

Off the Record: A Critical Analysis of Youth Record Disclosure Practices


van Wiltenburg, Chantelle, University of Toronto Faculty of Law Review


I    INTRODUCTION                                                 31 II   THE RELATIONSHIP BETWEEN POLICE RECORD      CHECKS, CRIMINAL RECORD CHECKS, AND THE YCJA                 32      A. Criminal and Police Record Checks                         32      B. Youth Records under the YCJA                              34 III  THE FRAMEWORK OF THE YCJA                                    34      A. Overarching Purpose of the YCJA                           33      B. Statutory Scheme                                          37 IV   CONTEMPORARY CRIMINAL RECORD DISCLOSURE PRACTICES            39      A. Consent may be Deficient                                  42      B. Current Practices Facilitate Contravention of the YCJA's         Privacy Provisions                                        46      C. Current Practices Are Contrary to the Spirit of the YCJA  51 V    SUGGESTIONS FOR REFORM                                       55 VI   CONCLUSION                                                   62  A reputation once broken may possibly be repaired, but the world will always keep their eyes on the spot where the crack was.  Joseph Hall 

I INTRODUCTION (1)

Obtaining summer employment; taking a day-trip to Buffalo, New York; securing an apartment; majoring in theatre studies. (2) What do all of these undertakings have in common? Each of these goals may be more difficult for an individual to achieve if he or she has been found guilty of a criminal offence under the Youth Criminal Justice Act ("YCJA"). (3)

In an age of rapid technological advancement, third party requests for police record checks have proliferated. Today, it is not uncommon for employers, landlords, volunteer organizations, and even post-secondary institutions to request that an individual obtain a police record check as part of their application process. In the eyes of a decision-maker, a young person may become a less suitable candidate by virtue of his or her youth criminal history. As a result of contemporary disclosure practices, an individual may face lasting barriers to opportunities long after his or her involvement with the youth criminal justice system has ended. Is this practice justifiable under Canadian law?

In Ontario, the permissibility of disclosing police records to third parties is a subject of heated debate. On the one hand, proponents of police record checks contend that third party access to these records serves valuable social function: shielding the recipient organizations from liability, promoting the safety of the public, and protecting vulnerable persons. On the other hand, opponents argue that the request and utilization of these records is discriminatory; moreover, it contributes to recidivism and undermines the process of rehabilitation. (4) In an effort to address these concerns, the Ontario provincial government recently enacted the Police Record Checks Reform Act, 2015 ("PRCRA") to standardize and restrict the information that may be disclosed on police record checks. (5) Nonetheless, debates surrounding these issues continue. (6)

Despite the widespread attention surrounding police record disclosure, little research has been done to examine the unique issues that disclosure presents in the youth criminal justice context. This paper critically evaluates the legitimacy of contemporary disclosure practices and the impact of these practices on two critical areas of a young person's life: housing and employment. It proceeds in five parts. Part I clarifies the relationship between police record checks and the YCJA. Part II outlines the purpose and statutory scheme of the YCJA. Part III considers the legitimacy and effects of disclosing youth record information to employers and landlords. Part IV outlines suggestions for reform. In broad strokes, this paper argues that police services should not facilitate third party youth record disclosure for several reasons: first, a young person's consent may not be construed as meaningful; second, the third-party uses to which these records will be put often contravene the privacy provisions of the YCJA; and third, current disclosure practices undermine the YCJA's broader aims of privacy protection and rehabilitation of young persons. …

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