Ontario’s privacy commissioner launched an unprecedented legal action Thursday seeking a court order against the Toronto Police for “indiscriminately” releasing attempted suicide information to the country’s national police database, the Toronto Star has learned.

“We’ve never initiated a court action like this before in the history of this office,” said Ann Cavoukian, who filed the notice of application for judicial review with the Ontario Superior Court of Justice to stop Toronto Police from disclosing the mental health records it logs onto the Canadian Police Information Centre (CPIC) database.

“When we go to institutions and say, ‘You’re breaking the law,’ 99 per cent of the time they want to comply . . . I’m baffled. Especially considering this is a law enforcement agency there to uphold the law.”

The notice of application argues Toronto Police automatically discloses all suicide attempts to the CPIC database in breach of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) and its provincial equivalent.

The move comes amid an ongoing Toronto Star investigation into the sweeping disclosure of non-conviction records — including unproven allegations, withdrawn charges and mental health calls to 911 — in police background checks that undermine employment and volunteer service and limit travel to the U.S. for hundreds of thousands of innocent people.

Last week, the Star reported there were more than 420,000 people in CPIC who were not convicted of a crime as of 2005 including nearly 2,500 with a notation for “attempt suicide” and another 2,200 noted for “mental instability.”

Cavoukian says that while police forces in Ottawa, Hamilton and Waterloo have accepted her recommendations for greater discretion in releasing suicide attempts to CPIC, her attempts over the past two months to negotiate with Toronto Police and its chief, Bill Blair, have ended in failure.

“I think highly of Chief Blair so I was really taken aback when he said they have no intention of changing this.”

In an interview last week, Toronto Police spokesperson Mark Pugash said the force “fundamentally” disagrees with Cavoukian.

Collecting such information in a database is vital to policing and protecting the vulnerable, he says.

“That information is for law enforcement agencies. If we, or (other police forces), are called to deal with someone with a history of threatening to commit suicide, it is relevant to police officers because they might bring psychiatric assistance,” he said.

He also blamed the RCMP for releasing the records it uploads into CPIC with U.S. border officials.

A “memorandum of co-operation” between the RCMP and the U.S. Federal Bureau of Investigation (FBI) grants the U.S. Department of Homeland Security — which includes U.S. border officials — access to the CPIC database.

“We have no control over whether that information is made available to the Americans,” said Pugash. “The federal government has done that.”

Cavoukian dismisses that argument as “passing the buck.”

“It’s a completely unacceptable position,” she said. “That is the exact opposite of how you protect information. The minute you start broadcasting this information beyond the collection agency, the harm grows dramatically because you can no longer place controls on what that institution is going to do with the information.”

While she says the RCMP practice of sharing its data with U.S. officials does require review at the federal level, the source of that information is local police forces like Toronto Police where the problem is best contained.

“How is it that you can say that you don’t care about the Act that applies to you? The regulator has found you in breach of the Act, you’ve broken the law and you say, ‘It’s not our problem, go to the feds.’ Don’t tell me to abdicate my responsibilities in my own jurisdiction that the police fall under. They feel they’re exempt.”

The Star investigation has gathered more than two dozens cases where mental health incidents have been accessed by U.S. border officials and used to delay or deny entry to the United States.

And many more have said the records have led to discrimination from prospective employers and volunteer agencies that require police background checks containing, in some cases, sensitive mental health information logged into police computers.

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“I was stunned when I was stopped at the Detroit border and told to go into the office for questioning,” said Nadia, a 42-year-old Torontonian who called 911 during a troubled period in her life eight years ago.

She asked that her full name not be published.

“I eventually found out I was flagged because of what they called a contact with police. I had no idea what they were talking about. Then I figured out they were looking at my 911 call. I was humiliated and stunned that some American border guard could access my personal health information. It’s obscene.”

The lack of public awareness about police sharing of mental health records expands the problem, says Cavoukian.

“I think at least they should be notified so that they know they could be stopped and asked about their attempted suicide. It breaks my heart when people go to the length of attempting suicide. It means there is a real serious issue that needs to be addressed. These individuals are already having to deal with very difficult issues in their lives. The last thing you want to do to compound that is to add to the load they’re carrying.”

In response to the Star investigation, the Mental Health Commission of Canada also called on police services this week to stop disclosing mental health apprehensions on police record checks when they do not result in a criminal charge.

“This is not a criminal matter. This is a health matter,” said commission president Louise Bradley. “This can impede recovery, when they are looking to volunteer, get a job or travel outside the country. It can also impede people with mental health problems and illnesses or their families seeking help when they are crisis because of fear of getting a ‘record.’”

Even if Canadians go through the process of having mental health and other non-conviction records expunged from CPIC, the information can remain indefinitely in the computers of both local police and U.S. authorities, says Toronto criminal lawyer Howard Rubel.

“(U.S.) Homeland Security’s version of CPIC is much more extensive than the Canadian CPIC,” he says. “If (U.S. authorities) have a reason to suspect you . . . they import that into their own system. So even if you remove the record from the Canadian system, it’s in the U.S. forever.”

Mental health records should simply not be shared unless there are compelling reasons, Sukanya Pillay, executive director and general counsel of the Canadian Civil Liberties Association, said in a statement.

“There is serious harm being done to an individual’s right to privacy while there is arguably no gain to public safety. Canadian police must avoid disclosing this sensitive personal information in a discriminatory fashion.”

If you have a story to tell, contact Robert Cribb at rcribb@thestar.ca

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