Because You Can, Doesn’t Mean You Should


By John Swartz

The taxi industry has been regulated in Ontario and Orillia for a very long time. First the police were the ones regulating, then the ability was transferred to municipalities. Almost every aspect from where a taxi could operate, to what condition cabs were in, to how much was charged came under scrutiny and regulation.

A new taxi by-law is up for final vote at Thursday’s council meeting and they should consider scrapping part of it, if not the whole thing, and here’s why.

One aspect of the process always seemed odd determining who could be a taxi driver. This was accomplished by a criminal record check. Decades ago, when I first became aware this was being done, I thought why? How could having a criminal record be the barrier to driving a taxi, which is not a high skill job?

Almost anyone can do it without more than an hour’s training how to use the meter. The barrier to entry is so low that many who can’t find work in other fields can at least drive a taxi and earn their keep. Obviously, this does not describe all taxi drivers.

You must consider this is the state denying the ability to be employed based having a criminal record; in some places stealing a pack of gum counts as much as beating another person senseless. What other class of employment gets this kind of treatment? Department store people? Car dealerships? Widget makers? Sure an employer can make a clean record, or at least no record for crimes directly affecting their business, a condition of employment – but they are not the state doing it and a business has the right to employ only those who don’t have the potential to harm the business.

The larger question is, with the plethora of other law and regulation (for example the Highway Traffic Act) why are municipalities even in the business of regulating taxis? At Orillia council more than one politician asked that question when staff presented a new taxi by-law (to staff’s credit, dropping several areas of regulation).

If Uber comes to mind immediately, you’d be correct in guessing why a new by-law was drafted. Of course, a bureaucrat’s main specialty is coming up with reasons to find similar, but not the same, things to drag into their realm of control and other transportation services were brought into the fray (unsuccessfully as it transpired).

One thing remained in the by-law, criminal record checks, but with a twist. A new tool called the Vulnerable Sector Screening (VSS) check the province created with the Police Record Checks Reform Act of 2015 is becoming one of the top ten requested things people must have to work as a volunteer, work in some fields, or, in Orillia, drive a taxi.

It’s helpful to know the difference between the two. A criminal record check, by definition reveals convictions. That last word is important. A VSS goes much further and can reveal if your name pops up anywhere in police files.

The new legislation came about because each police department doing criminal record checks had different standards for what to include. Some only revealed convictions, others went beyond.

So, you might be surprised to learn, when applying for a job, as say a fire fighter, a background check revealed the police spoke with you about a rash of fires that occurred when you were 14 years old; it turned out you were away during the whole time on a family vacation and had nothing to do with it- but, yeah we talked to him. Do you think an employer might view information police spoke with you as detrimental to you qualifying for a paycheque?

Search Google, you’d be surprised at all the stories, just from Canada, of people who were denied employment because a record check turned up something they didn’t even know was in a police file and became unemployable without so much as a ‘what’s your story?’

The Police Record Checks Reform Act is meant to tighten the rules and conditions police can reveal information beyond convictions and the province should be applauded for making it so. No longer can the police release the background check to anyone but you. Your potential employer can’t get it, the soccer league can’t get it, or the taxi company and by extension the municipality. This gives you the ability to quietly go away without having to explain yourself to employers if something you had forgotten about pops up from your wild teenage years.

It also means some officer who doesn’t like the cut of your jib can decide to include things which certainly won’t help you because it’s Tuesday and he feels like it.

Here’s the interesting thing, the law, passed in 2015, doesn’t even come into effect until November this year. I typed that correctly and you read that right. It’s not even law, yet. But, because it’s not law, the guidelines already published are being used to reveal information to potential employers because the requirement to only release to people needing a VSS doesn’t restrict that practice until later this year.

What a VSS does is give permission, in certain circumstances, for a record check to include things beyond convictions. Things like, being charged with a crime, even if the charges were dropped, or a judge dismissed the case, or you were acquitted – which to the layperson means found not guilty. It can also reveal if you were on the police radar for a crime, even if nothing came of it.

Cutting to the chase, the VSS is all about revealing sex crimes to organizations like the soccer league, hospitals, school boards, and taxi regulators where kids or the infirm are the focus of service for the organization. Certainly that is reasonable at face value.

So let’s look at some stats. According to Canadian Lawyer magazine, in 2013/14 3,002 cases of some kind of sexual assault made it to court. Of those, 45% (1,351) were found guilty. This compares to a 63% conviction rate for all types of cases.

Of those 3002 people charged, 44% (1,321) had charges withdrawn or stayed – which in layman’s terms means tossed for one reason or another (like as with our 14 year old above – not physically present, or say the ‘victim’ lied about the event in question).

Presumably the other 11 percent were acquitted, though the stats cited don’t include this information. It’s also important to note that 99% of the accused were male.

The police and organizations asking for a VSS are using the new criteria to reveal all kinds of things – still. From perusal of media stories, people are being stung and losing out on jobs, in many cases for things they had no idea formed part of a record even though, in theory, there is a requirement revealing a person was charged and those charges went nowhere has to pass several tests of relevancy to the requested VSS. In short, the VSS is being used to ruin people’s lives, even though it is not yet in effect, and rules for its use are meant to avoid bad things happening to people.

If you don’t follow, let’s use an example. Say you are a teacher, a really great teacher. You have a student who is annoyed you won’t give an A for a paper and accuses you of hugging, which these days counts for sexual assault. Forget what the hug could have been about, in this example it never happened. Your life is turned upside down by a petulant and vindictive person’s accusations, which turned out to be easily dismissed. But, the police are not judges, they charge people, others prosecute and convict. At some point, maybe while the prosecutor was laughing at having deal with the case at all the charge is dropped; or the judge questioned everyone’s sanity for even bringing it to court as he stayed or dismissed the charges; or let’s say it went to trial, and the jury, wondering why everyone’s time was wasted, acquits. You breathe a sigh of relief. Your school board employer understands the silliness of it all and keeps you employed. The sun shines again.

Until you, being an insomniac, decide to not waste your midnight hours reading the internet and want to drive a cab to earn a little extra cash. But, you happen to live in Orillia and the by-law requires a VSS which it reveals the whole affair described above. You aren’t driving a cab in Orillia.

You see the seriousness of the City even going down this road. One might ask why is the City (knowing the legislation is not even in effect yet and still being misused) even contemplating making a VSS a requirement when it doesn’t have to.

I believe no one has challenged the constitutionality of the VSS simply because most people don’t have the financial resources to carry a law suit through to the Supreme Court, where it likely would end up.

The argument has been expressed that a VSS can reveal convictions that have been pardoned and therefore is necessary to find out if someone has been convicted and pardoned for a sex crime which a criminal record check, in theory, wouldn’t reveal. The fact is sex crimes are not pardonable and will always be on a criminal record. There goes that argument.

The argument, think of the kids, was tossed out in debate. Does finding out some person was falsely accused of a sex crime really matter for a taxi licence? I’m arguing it doesn’t. I’d also argue it’s no one’s business a potential taxi driver’s name came up connected to any investigation that ultimately went nowhere.

Council is divided on the VSS. Even some who voted to require it wonder about whether a VSS goes too far. However, not being experts in everything, they are listening to the by-law enforcement staff and going with it anyway.

It’s wrong. A VSS is a damaging tool that isn’t required. All the useful information is contained in a simple criminal record check.

Every community in Ontario – except Ottawa – has the good sense to only ask for a criminal record check. Council should run away from making a VSS part of the new taxi by-law. Better, scrap the whole by-law.


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