As of November 1, 2018, Ontario will be the first province in Canada with a comprehensive legislative regime governing criminal record checks.
Employers across the province should be looking ahead to ensure that their existing background check policies and procedures comply with the new requirements.
The Police Record Checks Reform Act
The purpose of the Police Record Checks Reform Act (“the Act”) is to standardize the process of obtaining criminal record checks and to prevent the disclosure of unnecessary information.
Moving forward, there will be three legally recognized and clearly defined types of criminal record checks:
- criminal record checks,
- criminal record and judicial matters checks, and
- vulnerable sector checks.
Through the adoption of the Act, the legislature has addressed the need to balance two distinct policy objectives, one being the responsibility for protecting public safety and the other being a citizen’s right to privacy, particularly in response to widespread concerns relating to the disclosure of non-criminal and non-conviction information that are currently accessible through the existing criminal record check processes.
Information That Can Be Released in Each Type of Criminal Record Check
When employers in Ontario require that a prospective employee submit to a criminal record check, they often receive a wide range of information, such as records of suicide attempts or mental health-related police contact and detentions, complaints where charges were never laid, withdrawn charges, as well as acquittals.
The Act also clearly specifies the information that can be released in each type of record check. In a standard criminal record check, only criminal convictions for which a pardon has not been issued and findings of guilt under the Youth Criminal Justice Act will be disclosed. Moreover, convictions for summary conviction offences will only be disclosed if the request is made within five years of the date of conviction.
A criminal record and judicial matters check permits the release of information relating to criminal convictions that resulted in an absolute or conditional discharge if the request is made within one year of the date of the absolute discharge, or within three years of the date of the conditional discharge, as well as outstanding criminal charges and warrants to arrest, and certain court orders.
Finally, the rules governing the third category of vulnerable sector checks have been designed to help screen individuals in a position of trust or authority over vulnerable persons, such as children or the elderly, and thereby permit disclosure of charges where the individual was found not criminally responsible on account of mental disorder.
If additional criteria for “exceptional disclosure” are satisfied, then on-conviction information may also be disclosed. However, individuals can request reconsideration of the disclosure of non-conviction information after receiving the results of the check if they do not believe that the information should be disclosed.
The Process of Obtaining a Police Record Check
Perhaps the most significant changes to be implemented by the Act relate to the procedure for obtaining a police record check. Employees will have more control over the process of releasing information to a potential employer.
All requests for a police record check must now contain the concerned individual’s written consent to the check. Further, the results of the check must be disclosed to the individual before being provided to the prospective employer and can only be disclosed to the prospective employer with the individual’s written consent.
Employers are obliged to only use information disclosed through a criminal record check for the purposes for which the check was originally requested.
The willful contravention of certain provisions of the Act by a person or organization is an offence and can result in a fine of up to $5,000 upon conviction. However, a prosecution cannot be commenced unless the Minister of Community Safety and Correctional Services consents.
Regulations Under the Act
Four regulations under the Act also have been enacted:
- to exempt certain searches from the provisions of the Act;
- to list the criminal offences to which non-conviction information must relate in order for such information to meet the criteria for “exceptional disclosure;”
- to set out the process for requesting reconsideration of the disclosure of non-conviction information in the results of a vulnerable sector check; and
- to govern the disclosure of records under the Youth Criminal Justice Act.
Take-Aways
When the Act comes into force in November 2018, it is expected to have a significant impact on hiring and recruitment practices for employers. Employers should take the opportunity over the next few months to familiarize themselves with these new rules and begin to prepare for the administrative changes that will be required to ensure compliance.
This is the time to consider which types of criminal record checks are appropriate in the employment context specific to each organization. Before an individual is asked to consent to a record check, an organization should also understand its obligations under the Ontario Human Rights Code with respect to evaluation, hiring and training volunteers or employees. Finally, it may be useful to consider whether alternative screening practices may satisfy the needs of a company or organization and may be able to replace policies requiring a police record check.
If you have any questions or would like further information regarding the compliance requirements of the Police Record Checks Reform Act, please contact Alexandra Hobson at Sultan Lawyers PC by telephone at 416-214-5111 or by here.