Tadros v. Peel Regional Police Service, 2009 ONCA 442

Tadros v. The Peel Regional Police Service; Attorney General of Ontario, Intervenor; Information and Privacy Commissioner/Ontario, Intervenor [Indexed as: Tadros v. Peel Regional Police Service]

97 O.R. (3d) 212

Court of Appeal for Ontario,

Rosenberg, Feldman and Blair JJ.A.

May 28, 2009

Administrative law -- Freedom of information -- Charges of sexual offences against child residents of applicant's group home withdrawn and applicant entering into peace bond -- Applicant subsequently signing Toronto Police Service authorization forms requesting Criminal Records Search and Vulnerable Persons Search in relation to prospective employment -- Peel Police Service providing Toronto Police Service with information concerning withdrawn charges pursuant to Vulnerable Persons Search authorization -- Provision of information authorized by s. 32(b) of Municipal Freedom of Information and Protection of Privacy Act as applicant signed consent form authorizing Vulnerable Persons Search -- No conflict existing between s. 32(b) of MFIPPA, s. 41(1.1) of Police Services Act and Regulation under that Act -- Release of information [page213] by Peel Police Service to Toronto Police Service not violating applicant's rights under ss. 7 or 8 of Charter -- Canadian Charter of Rights and Freedoms, ss. 7, 8 -- Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, s. 32(b) -- Police Services Act, R.S.O. 1990, c. P.15, s. 41(1.1) -- O. Reg. 265/98.

The applicant was charged with sexual offences against children who were residents in a group home which he operated. The criminal charges were withdrawn and the respondent entered into a peace bond. The applicant subsequently signed Toronto Police Service authorization forms requesting a Criminal Records Search in relation to his prospective employment with a group home or as a counsellor. Those searches showed that he did not have any criminal convictions. Because he was seeking employment that would bring him into contact with vulnerable people, he also requested a Vulnerable Persons Search. The Toronto Police Service contacted the Peel Police Service, and the latter provided the former with the information it had on file concerning the withdrawn charges. The applicant applied for an injunction prohibiting the Peel Police Service from making any reference to the withdrawn criminal charges when responding to any inquiries made to it by any organization or individual about him. Alternatively, he argued that disclosure of the information violated ss. 7, 11(d) and 15 of the Canadian Charter of Rights and Freedoms. The application judge granted the injunction. The Peel Police Service appealed. The application judge found that disclosure did not violate the Charter. The applicant cross-appealed from that decision.

Held, the appeal should be allowed; the cross-appeal should be dismissed.

The applicant authorized the Toronto Police Service to undertake Criminal Records and Vulnerable Persons Searches. Pursuant to s. 32(b) of the Municipal Freedom of Information and Protection of Privacy Act, a chief of police may disclose personal information with the specific consent of the affected person. The information regarding withdrawn charges was personal information under the MFIPPA. The application judge erred in finding that the applicant would not have expected withdrawn charges to be retained and disclosed. There is no conflict between the consent provision in s. 32(b) of the MFIPPA and s. 41(1.1) of the Police Services Act and O. Reg. 265/98 to the PSA. They can both operate where applicable. Nor is legislation necessary to implement the exception in s. 32(b). The exception is implemented each time by the authority of the consent given by the person whose personal information is to be disclosed.

The applicant's rights under s. 8 of the Charter were not violated as he did not have a reasonable expectation of privacy in the information in question. The information about the withdrawn charges was a record of events that took place in a public courtroom. Disclosure of that information by the Peel Police Service to the Toronto Police Service was not a search or a seizure. Even if there were a search or seizure, there was no violation of s. 8. The disclosure was authorized by s. 32 of the MFIPPA and the applicant had not attacked the constitutionality of that legislation.

The applicant's right to liberty under s. 7 of the Charter was not violated. His right to liberty did not include the right to censor information lawfully held by the Peel Police Service. Nor was his right to security of the person infringed. The s. 7 guarantee of security of the person is triggered only by state interference in profoundly intimate and personal choices. The applicant's choice to seek the Vulnerable Persons Search was not state interference in any protected intimate and personal choice. Section 7 does not guarantee a right to work in any particular job or career. Even if there were an infringement of the applicant's right to [page214] liberty or security of the person, he failed to identify any principle of fundamental justice that was infringed.

APPEAL and CROSS-APPEAL from the judgment of Somers J. of the Superior Court of Justice dated October 5, 2007 granting an injunction and dismissing a Charter application.

Cases referred to Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, 2000 SCC 44, 190 D.L.R. (4th) 513, 260 N.R. 1, [2000] 10 W.W.R. 567, J.E. 2000-1872, 141 B.C.A.C. 161, 81 B.C.L.R. (3d) 1, 23 Admin. L.R. (3d) 175, 3 C.C.E.L. (3d) 165, [2000] CLLC Â230-040, 77 C.R.R. (2d) 189, 99 A.C.W.S. (3d) 1024; Cash Converters Canada Inc. v. Oshawa (City) (2007), 86 O.R. (3d) 401, [2007] O.J. No. 2613, 2007 ONCA 502, 226 O.A.C. 104, 35 M.P.L.R. (4th) 161, 67 Admin. L.R. (4th) 103, 158 A.C.W.S. (3d) 1003; Lévis (City) v. Fraternité des policiers de Lévis Inc., [2007] 1 S.C.R. 591, [2007] S.C.J. No. 14, 2007 SCC 14, 278 D.L.R. (4th) 577, 359 N.R. 199, J.E. 2007-618, 64 Admin. L.R. (4th) 1, 35 M.P.L.R. (4th) 1, 155 A.C.W.S. (3d) 8, EYB 2007-116734, 160 L.A.C. (4th) 1; Quebec (Attorney General) v. Laroche, [2002] 3 S.C.R. 708, [2002] S.C.J. No. 74, 2002 SCC 72, 219 D.L.R. (4th) 723, 295 N.R. 291, J.E. 2002-2126, 169 C.C.C. (3d) 97, 6 C.R. (6th) 272, 99 C.R.R. (2d) 252, 55 W.C.B. (2d) 129; R. v. Dore, 2002 CanLII 45006 (ON CA), [2002] O.J. No. 2845, 162 O.A.C. 56, 166 C.C.C. (3d) 225, 4 C.R. (6th) 81, 96 C.R.R. (2d) 49, 54 W.C.B. (2d) 691 (C.A.); R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, [1988] S.C.J. No. 82, 55 D.L.R. (4th) 503, 89 N.R. 249, J.E. 89-77, 73 Nfld. & P.E.I.R. 13, 45 C.C.C. (3d) 244, 66 C.R. (3d) 348, 38 C.R.R. 301, 10 M.V.R. (2d) 1, 6 W.C.B. (2d) 78; R. v. M. (A.) (2008), 92 O.R. (3d) 398, [2008] 1 S.C.R. 569, [2008] S.C.J. No. 19, 2008 SCC 19, EYB 2008-132460, J.E. 2008-904, 77 W.C.B. (2d) 289, 230 C.C.C. (3d) 377, 373 N.R. 198, 55 C.R. (6th) 314, 293 D.L.R. (4th) 187, 236 O.A.C. 267, 169 C.R.R. (2d) 1; R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79, 2003 SCC 74, 233 D.L.R. (4th) 415, 314 N.R. 1, [2004] 4 W.W.R. 407, J.E. 2004-131, 191 B.C.A.C. 1, 23 B.C.L.R. (4th) 1, 179 C.C.C. (3d) 417, 16 C.R. (6th) 1, 114 C.R.R. (2d) 189, 59 W.C.B. (2d) 116 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 8, 11(d), 15 Criminal Code, R.S.C. 1985, c. C-46, ss. 717, 730 [as am.] Criminal Records Act, R.S.C. 1985, c. C-47 Municipal Act, R.S.O. 1980, c. 302 [rep.], s. 116 Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, ss. 2 [as am.], (1), 29(1)(g), 30-32, 30(4), 31(c), 32(b), (e), (f), (i), (g) Police Services Act, R.S.O. 1990, c. P.15, ss. 41(1.1), (1.2), (1.3) [as am.] Provincial Offences Act, R.S.O. 1990, c. P.33 Rules and regulations referred to Disclosure of Personal Information, O. Reg. 265/98, ss. 1, 2, 3, 5, 6

David Migicovsky and Laura Scott, for appellant Peel Regional Police Service. Clayton Ruby, Alan J. Davis and Sheldon Erentzen, for respondent Magdy Abdelmalik Tadros. Michael T. Doi and Patrick Xavier, for intervenor Attorney General of Ontario. [page215] William S. Challis and Stephen McCammon, for intervenor Information and Privacy Commissioner/Ontario.

The judgment of the court was delivered by

ROSENBERG and FELDMAN JJ.A.:--

Introduction

[1] The Peel Regional Police Service (the "Peel Police Service") appeals the judgment of Somers J. granting an injunction prohibiting it from making any reference to withdrawn criminal charges of sexual assault and sexual exploitation when responding to any inquiries made to it by any organization or individual about Mr. Tadros, the respondent. The application judge held that disclosure of the information was not authorized by the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 ("MFIPPA") or the Police Services Act, R.S.O. 1990, c. P.15 ("PSA").

[2] The application judge also considered the respondent's alternative argument that disclosure of the information violated ss. 7, 11(d) and 15 of the Canadian Charter of Rights and Freedoms. He found that the disclosure did not violate the Charter. The respondent cross-appeals from this decision.

[3] For the following reasons, the appeal is allowed and the injunction is set aside. The cross-appeal by the respondent is dismissed.

The Facts

[4] The respondent is 57 years of age and trained in social work. In 1998, he opened a group home in Peel Region. The group home was licensed by the Ministry of Social Services and provided a home for approximately six children. On May 22, 2002, the Peel Police Service charged the respondent with four counts of sexual assault and four counts of sexual exploitation with respect to allegations made by children who were residents in his group home. The Ministry withdrew the respondent's licence to operate the home and it closed a week after the charges were laid.

[5] About a year and a half later, on October 30, 2003, an assistant Crown attorney withdrew the charges. For his part, the respondent agreed to enter into a peace bond that included terms that for nine months he keep the peace, be of good behaviour and not be in the company of any person under the age of 14 years unless accompanied by an adult. At the time of entering into the peace bond, the respondent's counsel stated that [page216] the respondent "does not acknowledge the facts as alleged in the information".

[6] The Peel Police Service keeps records of occurrences, which includes records of withdrawn charges. The records relating to the respondent show that the charges were ultimately withdrawn and that the respondent entered into the peace bond.

[7] In August 2004, January 2005 and April 2006, the respondent signed Toronto Police Service authorization forms requesting a Criminal Records Search in relation to his prospective employment with a group home or as a counsellor. Those searches showed that the respondent did not have any criminal convictions. However, because the respondent was seeking employment that would bring him into contact with vulnerable people, he also requested a Vulnerable Persons Search. Vulnerable persons are individuals who, because of age or disability, are in a position of dependence and at greater risk than the general population of being harmed by persons in positions of trust or authority. The Toronto Police Service authorization for a Vulnerable Persons Search asks the Toronto Police Service to search national and local data banks and provide the applicant with a summary of information obtained. The authorization contains the following statement at the top of the form:

POLICE REFERENCE CHECK PROGRAM

CONSENT TO DISCLOSURE OF PERSONAL INFORMATION

TO BE USED ONLY TO ASSIST THE AGENCY TO DETERMINE THE SUITABILITY OF SUCCESSFUL CANDIDATES FOR EITHER FULL OR PART-TIME EMPLOYMENT AND/OR VOLUNTEER DUTIES, (INCLUDING AGENCY BOARD MEMBERS AND CONTACT MEMBERS) HAVING DIRECT CONTACT WITH CHILDREN OR VULNERABLE PERSONS.

[8] It also contains the following consent provision:

I HEREBY REQUEST THE TORONTO POLICE SERVICE TO UNDERTAKE A POLICE REFERENCE CHECK ON ME BY SEARCHING THE APPROPRIATE DATA BANKS, BOTH NATIONAL AND LOCAL TO WHICH THE SERVICE HAS ACCESS AND PROVIDE ME WITH A SUMMARY OF ANY INFORMATION REVEALED PURSUANT TO THE POLICE REFERENCE CHECK PROGRAM. IN THE EVENT NO INFORMATION ABOUT ME IS FOUND AS PART OF THAT CHECK, I CONSENT TO THE TORONTO POLICE SERVICE DISCLOSING THAT FACT TO THE ORGANIZATION IDENTIFIED BELOW. IN THE EVENT THAT PERTINENT INFORMATION IS PROVIDED TO ME, I CONSENT TO THE TORONTO POLICE SERVICE DISCLOSING THAT FACT TO THE ORGANIZATION IDENTIFIED BELOW.

[9] As a result of the respondent signing the Vulnerable Persons Search authorization, the Toronto Police Service contacted the Peel Police Service. The Peel Police Service forwarded to the Toronto Police Service the information it had on file concerning the eight withdrawn charges. The Toronto Police Service sent [page217] letters to the agencies to which the respondent had applied advising that the reference check had been completed and that the respondent had been mailed a summary sheet outlining the information on file. Neither the Peel Police Service nor the Toronto Police Service disclosed the information directly to the agencies; whether or not to disclose the information was in the hands of the respondent.

[10] That said, the respondent alleges that somehow at least one of the agencies to which he applied learned of the withdrawn charges. In any event, at some of the agencies to which the respondent applied he was not hired; at others he was briefly employed before his employment was terminated. The respondent believes that he was refused employment or terminated shortly after gaining employment because of the results of the Vulnerable Persons Search.

[11] The respondent retained counsel who wrote to the Peel Police Service asking that information about the withdrawn charges not be disclosed and that the records of the charges be destroyed. The Peel Police Service informed Mr. Tadros' counsel that while the respondent could request destruction of his fingerprints and photographs, he had no right to require the Peel Police Service to destroy the records of the withdrawn charges. The Peel Police Service subsequently purged the fingerprints and photographs of the respondent from its records, but not the records of the withdrawn charges. As a result, the respondent brought an application for an order requiring the Peel Police Service "to expunge from any and all Police Reference Check Reports ("PRCR"), including without limitation, any 'vulnerable records search reports' or any other reports, any reference to eight criminal charges against him of May 22, 2002, all of which were withdrawn by the Assistant Crown Attorney on October 30, 2003".

[12] It should be noted that in this application, the respondent did not seek any order against the Toronto Police Service, which was not a party to the original application or to this appeal.

The Reasons of the Application Judge

[13] The application judge concluded that the collection of the information concerning charges against the respondent was lawful under MFIPPA and the PSA. He also appears to have found that maintaining information that charges had been laid was not prohibited by the legislation. However, there was nothing in the relevant legislation that authorized the release of information concerning withdrawn charges. In particular, the disclosure of the information could not be justified on the basis of [page218] the consent or authorization forms signed by the respondent because the forms were not sufficiently specific in informing the respondent that information about withdrawn charges would be disclosed. The application judge concluded as follows [at para. 22]:

There is a basic unfairness in the dissemination of this type of information as evidenced by the apparent effect it did have on his employment chances. It may well be that legislation did not deal specifically with withdrawn charges in recognition of the unfairness of the adverse effect of disseminating this information. In any event, the present practice of the police service in dealing with information about withdrawn charges seems to be based not upon any statutory provision, but upon customs and internal policy.

[14] The application judge then turned to the Charter arguments and held that the respondent did not have a reasonable expectation of privacy with respect to the records retained by the Peel Police Service. He held that disclosure of the records did not deprive the respondent of his right to life, liberty or security of the person and, therefore, there was no violation of s. 8. His right to the presumption of innocence under s. 11(d) was not infringed because the respondent was no longer charged with an offence. Finally, there was no violation of the equality provisions in s. 15 as the respondent had not shown that he was subject to discrimination within the meaning of that section.

[15] As a result, the application judge dismissed the application insofar as it required destruction of the records, but he made an order that the Peel Police Service "be prohibited and enjoined from making any reference to the eight withdrawn criminal charges of May 22, 2002, when replying in response to any inquires made to it by any authorized organization or individual about Mr. Tadros".

Analysis

Does the Peel Police Service have the authority to disclose the existence of withdrawn charges?

[16] The collection and dissemination of personal information that relates to an individual's interaction with the criminal justice system is governed in Ontario by a number of legislative and regulatory provisions: MFIPPA, the PSA and O. Reg. 265/98 to the PSA (the "Regulation"). [See Note 1 below] In Peel Region, By-law No. 25-1996 [page219] also deals with the retention of police records. Although By-law 25-1996 was passed pursuant to s. 116 of the Municipal Act, R.S.O. 1980, c. 302, which has been repealed and replaced, the appeal was argued on the basis that the by-law continues in force. The status of the by-law was not an issue on the appeal.

Relevant provisions

[17] MFIPPA defines "personal information" and the circumstances in which it can be retained and disclosed. The relevant sections are s. 2(1), the definition of "personal information", and ss. 29(1)(g), 30(4), 31(c) and 32(b), (e), (f) and (g) relating to the collection, retention and disclosure by the police of personal information. Those sections provide:

2(1) "personal information" means recorded information about an identifiable individual, including, . . . . . (b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved; . . . . .

29(1) An institution shall collect personal information only directly from the individual to whom the information relates unless, . . . . . (g) the information is collected for the purpose of law enforcement; . . . . .

30(4) A head shall dispose of personal information under the control of the institution in accordance with the regulations.

31. An institution shall not use personal information in its custody or under its control except, . . . . . (c) for a purpose for which the information may be disclosed to the institution under section 32 or under section 42 of the Freedom of Information and Protection of Privacy Act. [page220]

32. An institution shall not disclose personal information in its custody or under its control except, . . . . . (b) if the person to whom the information relates has identified that information in particular and consented to its disclosure; . . . . . (e) for the purpose of complying with an Act of the Legislature or an Act of Parliament, an agreement or arrangement under such an Act or a treaty; (f) if disclosure is by a law enforcement institution, (i) to a law enforcement agency in a foreign country under an arrangement, a written agreement or treaty or legislative authority, or (ii) to another law enforcement agency in Canada (g) if disclosure is to an institution or a law enforcement agency in Canada to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result; (Emphasis added)

[18] The Peel Police Service, being an "institution" for the purposes of ss. 30-32 of MFIPPA (the definition of "institution" in s. 2 includes "a police services board"), is governed by those sections. It is also governed by the relevant provisions of the PSA and the Regulation regarding disclosure of personal information under that Act.

[19] The PSA was amended in 1997 to give police the authority to disclose information to the public about a person who, for example, was being released from prison and who may be dangerous to the public. Sections 41(1.1) and (1.2) authorize a chief of police to disclose personal information in certain circumstances "in accordance with the regulations", and s. 41(1.3) deems any such disclosure to be in compliance with s. 32(e) of MFIPPA. Sections 41(1.1), (1.2) and (1.3) provide:

41(1.1) Despite any other Act, a chief of police, or a person designated by him or her for the purpose of this subsection, may disclose personal information about an individual in accordance with the regulations.

(1.2) Any disclosure made under subsection (1.1) shall be for one or more of the following purposes:

1. Protection of the public.
2. Protection of victims of crime.
3. Keeping victims of crime informed of the law enforcement, judicial or correctional processes relevant to the crime that affected them. [page221]
4. Law enforcement.
5. Correctional purposes.
6. Administration of justice.
7. Enforcement of and compliance with any federal or provincial Act, regulation or government program.
8. Keeping the public informed of the law enforcement, judicial or correctional processes respecting any individual.

(1.3) Any disclosure made under subsection (1.1) shall be deemed to be in compliance with clauses 42(1)(e) of the Freedom of Information and Protection of Privacy Act and 32(e) of the Municipal Freedom of Information and Protection of Privacy Act.

[20] Pursuant to s. 41(1.1) of the PSA, the police may disclose personal information in accordance with the Regulation, which describes the circumstances when a chief of police may do so. Section 2 of the Regulation provides that a chief of police may disclose to any person personal information about an individual who "has been convicted or found guilty of" an offence, if the individual poses a significant risk of harm to other persons or property and disclosure will reduce that risk. Section 2 provides:

2(1) A chief of police or his or her designate may disclose personal information about an individual to any person if, (a) the individual has been convicted or found guilty of an offence under the Criminal Code (Canada), the Controlled Drugs and Substances Act (Canada) or any other federal or provincial Act; (b) the chief of police or his or her designate who would disclose the personal information reasonably believes that the individual poses a significant risk of harm to other persons or property; and (c) the chief of police or his or her designate who would disclose the personal information reasonably believes that the disclosure will reduce that risk.

(2) If subsection (1) applies, the chief of police or his or her designate may disclose any personal information about the individual that the chief of police or his or her designate reasonably believes will reduce the risk posed by the individual.

[21] Section 3(1) of the Regulation allows a chief of police to disclose defined personal information, as set out in s. 3(2), to any person about an individual who "has been charged with, convicted or found guilty of an offence". Section 3 provides:

3(1) A chief of police or his or her designate may disclose personal information, as described in subsection (2), about an individual to any person if the individual has been charged with, convicted or found guilty of an offence under the Criminal Code (Canada), the Controlled Drugs and Substances Act (Canada) or any other federal or provincial Act. [page222]

(2) If subsection (1) applies, the following information may be disclosed:

1. The individual's name, date of birth and address.
2. The offence described in subsection (1) with which he or she has been charged or of which he or she has been convicted or found guilty and the sentence, if any, imposed for that offence.
3. The outcome of all significant judicial proceedings relevant to the offence described in subsection (1).
4. The procedural stage of the criminal justice process to which the prosecution of the offence described in subsection (1) has progressed and the physical status of the individual in that process (for example, whether the individual is in custody, or the terms, if any, upon which he or she has been released from custody).
5. The date of the release or impending release of the individual from custody for the offence described in subsection (1), including any release on parole or temporary absence.

[22] Section 1 of the Regulation deems an individual "to be charged with an offence if" that person "is arrested and released" or "is served with a summons" under the Provincial Offences Act, R.S.O. 1990, c. P.33, even if an information has not been laid.

[23] Finally, s. 5 of the Regulation governs when a chief of police may disclose personal information about an individual to another police force, correctional or parole authority, or certain other agencies. Under this section, disclosure can be made if the individual "is under investigation of, is charged with or is convicted or found guilty of an offence". This section applies where disclosure is required for the protection of the public, the administration of justice, or the enforcement of a law, a regulation or a government program. Section 5 of the Regulation provides:

5(1) A chief of police or his or her designate may disclose any personal information about an individual if the individual is under investigation of, is charged with or is convicted or found guilty of an offence under the Criminal Code (Canada), the Controlled Drugs and Substances Act (Canada) or any other federal or provincial Act to, (a) any police force in Canada; (b) any correctional or parole authority in Canada; or (c) any person or agency engaged in the protection of the public, the administration of justice or the enforcement of or compliance with any federal or provincial Act, regulation or government program.

(2) Subsection (1) applies if the individual is under investigation of, is charged with or is convicted or found guilty of an offence under the Criminal Code (Canada), the Controlled Drugs and Substances Act (Canada) or any other federal or provincial Act and if the circumstances are such that disclosure is required for the protection of the public, the administration of justice or the enforcement of or compliance with any federal or provincial Act, regulation or government program. [page223]

(3) The procedures to be followed in disclosing personal information under this section to an agency that is not engaged in the protection of the public or the administration of justice shall be in accordance with a memorandum of understanding entered into between the chief of police and the agency.

[24] Section 6 of the Regulation sets out the nature of the discretion given to the police to disclose information in accordance with the Regulation. It provides:

6. In deciding whether or not to disclose personal information under this Regulation, the chief of police or his or her delegate shall consider the availability of resources and information, what is reasonable in the circumstances of the case, what is consistent with the law and the public interest, and what is necessary to ensure that the resolution of criminal proceedings is not delayed.

Analysis of the Regulation and legislative provisions

[25] The respondent, Mr. Tadros, was not convicted or found guilty of any offence. He was charged with offences, but those charges were ultimately withdrawn at the time he entered into a common-law peace bond. At the time the Peel Police Service provided the information regarding the withdrawn charges to the Toronto Police Service, the respondent was not charged with or under investigation for any offence.

[26] It appears to be accepted, correctly in our view, that withdrawn charges can be considered part of a person's "criminal history" for the purposes of the definition of personal information.

[27] This case was argued broadly on the question whether there are circumstances where the legislation allows the police to disclose information regarding withdrawn charges, either to "any person", or to another police or correctional agency in Canada. However, on the facts it is clear that the Peel Police Service disclosed the withdrawn charges to the Toronto Police Service based on the consent forms signed by Mr. Tadros for the purpose of the Vulnerable Persons Searches he authorized as part of his group-home job application process. Therefore, if the police were entitled to disclose information regarding the withdrawn charges pursuant to Mr. Tadros' consent, there is no need to decide the extent of the powers the police may have to disclose personal information without consent.

Consent -- [Section 32](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m56/latest/rso-1990-c-m56.html)(b) of [MFIPPA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m56/latest/rso-1990-c-m56.html)

[28] In response to the Vulnerable Persons Search requests, the Peel Police Service disclosed the withdrawn charges to the Toronto Police Service. As noted above, it is unclear how the information came into the possession of anyone else, other than the respondent himself. [page224]

[29] The appellant, Peel Police Service, submits that it was entitled to release the information regarding the withdrawn charges to the Toronto Police Service based on consent, pursuant to s. 32(b) of MFIPPA, as the respondent signed consent forms authorizing Vulnerable Persons Searches of his records. The application judge concluded that because the consent form did not refer specifically to withdrawn charges, it would not have been sufficient to authorize disclosure of that information under s. 32(b), which requires that the person to whom the information relates "has identified that information in particular and consented to its disclosure". The application judge reasoned that the respondent "might well expect" that information regarding the withdrawn charges would not be contained in police records because he had never been previously convicted of an offence.

[30] The appellant makes two submissions that support the inference that the respondent knew that he had withdrawn charges and a peace bond as part of his criminal history and that they would be disclosed on a Vulnerable Persons Search; therefore, by signing the consent and waiver forms, he consented to the disclosure of that information.

[31] The first submission is that because the respondent received the results of the Criminal Records Search and was then asked for a further consent to disclose information other than his criminal record for the purpose of the Vulnerable Persons Search, he knew that information other than his criminal record could be disclosed, and he knew that eight sex-related charges against him had been withdrawn in exchange for a peace bond. Second, even if in respect of the first consent he did not know that the withdrawn charges would be disclosed, he certainly knew once he received the reports and once he was turned down for the social work jobs he was applying for, or when his employment at social work agencies was terminated.

[32] In our view, these are very persuasive arguments. When the application judge concluded that Mr. Tadros would not expect withdrawn charges to be retained and disclosed because he was never convicted of a criminal offence, he appears to have overlooked these factors. In an affidavit, Terri Pauli (supervisor and coordinator of records for the Peel Police Service) provided evidence that it is the practice of the Toronto Police Service to require consent prior to the release of any information. Further, in a supplementary affidavit, Pauli gave evidence that "Mr. Tadros consented to a number of vulnerable records search requests, and apparently did so repeatedly with several agencies" (para. 17). Mr. Tadros did not refute [page225] that evidence. Therefore, in our view, the application judge misapprehended the evidence and thereby erred to the extent that he found that the respondent did not give specific consent to the disclosure of the withdrawn charges in the circumstances of this case.

[33] As intervenor, the Information and Privacy Commissioner's (the "Commissioner") position is that s. 32 of MFIPPA, which prohibits disclosure of personal information by an institution, then provides exceptions to that prohibition, is an enabling section only, and that specific authorization is required by other legislation for disclosure in accordance with the exceptions. In this case, the Commissioner submits, s. 41(1.1) of the PSA and the Regulation form a complete code for disclosure of personal information by the police. Therefore, s. 32(b), which allows an institution to disclose with the consent of the affected individual, has no application in this case.

[34] We would not give effect to this argument. We need not decide the extent to which s. 41(1.1) of the PSA and the Regulation were intended by the legislature to set out the authority of the police to disclose personal information to other law enforcement agencies in Canada, and to any person when they deem it necessary to do so for any of the purposes provided in s. 41(1.2). However, that legislation is silent on the authority of police to disclose on the consent of the affected individual and to agencies outside Canada, as contemplated by s. 32(b) and 32(f)(i) of MFIPPA.

[35] In order to apply the presumption of coherence, effect must be given to every statutory provision to the fullest extent possible without legislative conflict. In Lévis (City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14, [2007] 1 S.C.R. 591, [2007] S.C.J. No. 14, at para. 47, Bastarache J. explained the concept of legislative conflict and the presumption of legislative coherence as follows:

The starting point in any analysis of legislative conflict is that legislative coherence is presumed, and an interpretation which results in conflict should be eschewed unless it is unavoidable. The test for determining whether an unavoidable conflict exists is well stated by Professor Côté in his treatise on statutory interpretation:

According to case law, two statutes are not repugnant simply because they deal with the same subject: application of one must implicitly or explicitly preclude application of the other.

Thus, a law which provides for the expulsion of a train passenger who fails to pay the fare is not in conflict with another law that only provides for a fine because the application of one law did not exclude the application of the other. Unavoidable conflicts, on the other hand, occur when two pieces of legislation are directly contradictory or where their concurrent application would lead to unreasonable or absurd results. A law, for example, [page226] which allows for the extension of a time limit for filing an appeal only before it expires is in direct conflict with another law which allows for an extension to be granted after the time limit has expired. (Citations omitted)

[36] There is no conflict between the consent provision in s. 32(b) of MFIPPA and s. 41(1.1) of the PSA and the Regulation. They can both operate where applicable. Nor is legislation necessary to implement the exception in s. 32(b). The exception is implemented each time by the authority of the consent given by the person whose personal information is to be disclosed.

[37] The Commissioner also argues that the form of consent is not specific enough to be valid. To the extent that the authorities cited by the Commissioner support that conclusion, they are distinguishable. There was no duress that could vitiate consent of the sort considered in Investigation Report I 97-054M, A County, February 6, 1998, IPC/O, at pp. 4-5, or the decision of this court in Cash Converters Canada Inc. v. Oshawa (City) (2007), 2007 ONCA 502, 86 O.R. (3d) 401, [2007] O.J. No. 2613 (C.A.), at para. 34. Nor was there a failure to specify in the authorization form the sources from which the personal information to be disclosed could be drawn: see Investigation Report I94-030P, Ministry of the Solicitor General and Correctional Services, October 12, 1994, IPC/O, at pp. 3-5. The authorization form that the respondent signed clearly stated that "data banks, both national and local to which the [Toronto Police Service] has access" would be canvassed.

[38] The fact that a person effectively must consent to a Vulnerable Persons Search in order to apply for certain types of jobs may be perceived as coercive and, in that way, possibly unfair. In regards to this alleged coercion, the affidavit evidence in this case indicates that these searches are necessary in order to give prospective employers involved with vulnerable persons all potentially relevant information about potential employees, within the bounds of the permissible disclosure of personal information under MFIPPA. Also, 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.

[39] The Commissioner also takes the position that even if police may disclose with consent under s. 32(b) of MFIPPA, the chief of police is bound by s. 6 of the Regulation to exercise his or her discretion on each occasion before making any disclosure, and that he failed to do so in this case. We must respectfully disagree with the Commissioner on this issue as well. Section 6 of the Regulation refers specifically to disclosures of personal information made under the authority of the Regulation. That [page227] would not be the case where disclosure is made on consent under s. 32(b) of MFIPPA.

Conclusion on the Authority of the Police to Disclose Personal Information

[40] Mr. Tadros authorized the Toronto Police Service to undertake Criminal Records and Vulnerable Persons Searches. The Peel Police Service disclosed the existence of the eight withdrawn charges against Mr. Tadros to the Toronto Police Service based on the consent forms signed by Mr. Tadros for the purpose of the Vulnerable Persons Searches that he authorized. Pursuant to s. 32(b) of MFIPPA, a chief of police may disclose personal information with the specific consent of the affected person. The information regarding withdrawn charges against Mr. Tadros was personal information under MFIPPA. There is no basis for an injunction to restrain disclosure where the proper consent is given. In our view, the proper consent was given by Mr. Tadros. There is no conflict between s. 32(b) of MFIPPA and the PSA or the Regulation that would operate to eliminate the consent exception to the presumption in MFIPPA against the disclosure of personal information.

[41] We would, therefore, set aside the injunction order.

The Charter Issues

[42] Mr. Tadros by way of cross-appeal appeals the holding of Somers J. that dissemination of information by the Peel Police Service did not violate his rights under ss. 7 and 8 of the Canadian Charter of Rights and Freedoms. As did counsel for Mr. Tadros, we will begin with the s. 8 analysis.

[Section 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[43] Not every state action will trigger s. 8 of the Charter. To constitute a search within the meaning of s. 8, the claimant must show state activity that invades a reasonable expectation of privacy: R. v. M. (A.) (2008), 92 O.R. (3d) 398, [2008] 1 S.C.R. 569, [2008] S.C.J. No. 19, 2008 SCC 19, at para. 8. A seizure is the taking of a thing from a person by the state without the person's consent: Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, [2002] S.C.J. No. 74, at para. 52. Further, even if the police action constitutes a search or seizure, the police action will be reasonable if it is authorized by a reasonable law and carried out in a reasonable manner. We begin with the question of whether there was an invasion of a reasonable expectation of privacy. [page228]

[44] It is important to focus on the action by the Peel Police Service. Their only action was to disclose to the Toronto Police Service in accordance with a valid consent under s. 32(b) of MFIPPA information that was lawfully in their possession. In our view, there is no possible basis for characterizing this disclosure of lawfully obtained information as an invasion of privacy.

[45] We begin by acknowledging that the Charter is to be interpreted generously and as was said in R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, [1988] S.C.J. No. 82, at p. 426 S.C.R., s. 8 in particular "must be interpreted in a broad and liberal manner so as to secure the citizen's right to a reasonable expectation of privacy against governmental encroachments" and that its "spirit must not be constrained by narrow legalistic classifications based on notions of property and the like which served to protect this fundamental human value in earlier times". Further, as was said in Dyment, at pp. 429-30 S.C.R.: "retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected. Governments at all levels have in recent years recognized this and have devised rules and regulations to restrict the uses of information collected by them to those for which it was obtained; see, for example, the Privacy Act, S.C. 1980-81-82-83, c. 111." However, statutory recognition of privacy rights does not itself create Charter rights.

[46] In this case, there was no invasion of the respondent's privacy by the actions of the Peel Police Service. The information in the possession of the Peel Police Service was lawfully obtained and retained. Even the original obtaining of the information did not constitute a search or seizure, unlike the taking of fingerprints or photographs as was dealt with by this court in R. v. Dore, 2002 CanLII 45006 (ON CA), [2002] O.J. No. 2845, 166 C.C.C. (3d) 225 (C.A.). And, it will be recalled that the Peel Police Service offered to destroy the fingerprints and photographs.

[47] The information about the withdrawn charges was, moreover, a record of events that took place in a public courtroom. Disclosure of this information by the Peel Police Service to the Toronto Police Service is not a search. Nor is the disclosure by Peel a seizure; the disclosure did not involve the taking of any thing.

[48] Even if there was a search or seizure, the respondent has not made out a violation of s. 8. The disclosure of the information was [page229] authorized by law, namely, s. 32 of MFIPPA, and the respondent has not attacked the constitutionality of that legislation. The respondent has not been able to articulate any basis upon which it could be said that the search or seizure, if there was one, was not executed in a reasonable manner.

[Section 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[49] The respondent submits that disclosure by the Peel Police Service to the Toronto Police Service violates his right to privacy, which is protected by s. 7 of the Charter. The respondent submits that this disclosure infringes his liberty or security interests guaranteed by s. 7 and in a manner that does not accord with the principles of fundamental justice.

[50] It is now well-established that "liberty" embraces more than freedom from physical constraint and includes the right to make inherently personal choices free from state interference; these must be choices that "go to the core of what it means to enjoy individual dignity and independence": R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79, at para. 85. In our view, the disclosure by one police service to another of information obtained through the public prosecution of an individual does not fall within this concept of liberty. It was the respondent who set in motion the disclosure through his request to the Toronto Police Service. His right to liberty does not include the right to censor accurate information lawfully held by the Peel Police Service.

[51] We are similarly of the view that the respondent's right to security of the person is not infringed. The s. 7 guarantee to security of the person is triggered only by state interference in "profoundly intimate and personal choices": Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, at para. 83. The respondent's choice to seek the Vulnerable Persons Search was not state interference in any protected intimate and personal choice. Section 7 does not guarantee a right to work in any particular job or career.

[52] Even if there was an infringement of the respondent's right to liberty or security of the person, he has also failed to identify any principle of fundamental justice that was infringed. The disclosure by the Peel Police Service to the Toronto Police Service was in accordance with valid provincial legislation that has not been directly attacked. In our view, it is not open to the respondent to argue that the disclosure was contrary to the principles of fundamental justice without putting in issue the provincial legislation that authorizes that disclosure. In his factum, the respondent acknowledges that he has not mounted a [page230] constitutional challenge to the legislation, but nevertheless claimed that the legislation was not reasonable. [See Note 2 below] In our view, this argument is not open to the respondent. The only basis for finding that the legislation might be unreasonable would be by attacking its constitutional validity. Mr. Ruby, on behalf of the respondent, did not pursue the alleged unreasonableness of the legislation in oral argument.

Result

[53] We would allow the appeal and set aside the order for an injunction. If the appellant requests its costs, counsel shall make brief (maximum three pages) submissions in writing within 14 days of release of these reasons. The respondent may make brief (maximum three pages) reply submissions within ten days.

Appeal allowed; cross-appeal dismissed.

Notes

Note 1: Federal legislation, in particular the Criminal Records Act, R.S.C. 1985, c. C-47 and the Criminal Code, R.S.C. 1985, c. C-46, contain provisions relating to the retention of records. The Criminal Records Act deals with records of convictions for which pardons have been granted as well as with discharges. If an individual is discharged under s. 730 of the Criminal Code, the record is removed from the automated criminal records retrieval system maintained by the Royal Canadian Mounted Police. Regulations passed pursuant to the Criminal Records Act provide guidelines for disclosure as well as consent forms to authorize searches for and disclosure of records relate specifically to individuals dealt with under alternative measures: s. 717.

Note 2: Paragraph 26 of the Factum of the Appellant by Cross-Appeal.