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On December 1, 2015, the Ontario government passed Bill 113 the Police Record Checks Reform Act, 2015 (the “Act”), which will come into force at a date to be determined in the near future. The Act applies to persons who require a search to be conducted in order to screen an individual for the purposes of determining his or her suitability for employment, volunteer work, a license, or admission to an educational institution.
Once in force, the Act will impact how employers conduct police record checks and the information that can be released by those checks. Organizations will be required to request police record checks in the specific manner as set out in the Act. The Act will limit the disclosure of non-conviction and non-criminal records, such as arrests where no criminal charges were laid, as well as mental health information.
Prior to the enactment of Bill 113, a standardized framework for conducting police record checks did not exist. The information collected and disclosed varied considerably between municipal police forces, and advocates took issue with the broad scope and inconsistent practices. Much of the criticism pertained to the adverse effect background checks have on the individual. The concern was that the information collected and disclosed was broad enough to create privacy concerns and barriers to employment for screened individuals.
New Framework for Limited Disclosure
The new framework provides a comprehensive standard for limiting the information that may be disclosed. The Act specifically prohibits disclosure of mental health records, non-conviction information such as withdrawn or dismissed charges and acquittals, except in limited circumstances.
The Act establishes three categories for police record checks and sets out the type of information that will be disclosed in response to each check:
- Criminal record checks;
- Criminal record and judicial matters checks; and,
- Vulnerable sector checks.
For each of these categories, the Act limits and standardizes the information that may be disclosed by police.
In a standard criminal record check, only criminal convictions for which a pardon has not been issued or granted and findings of guilt under the Youth Criminal Justice Act are permitted to be disclosed.
A criminal record and judicial matters check additionally permits the disclosure of court orders made against the individual, criminal offences for which the individual was found guilty but received a conditional or absolute discharge, and criminal offences for which there is an outstanding charge or warrant to arrest.
For vulnerable sector checks which are performed when an individual is in a position of trust or authority over vulnerable persons like children or the elderly, the scope of information disclosed is extended to include charges where the individual was found not criminally responsible on account of mental disorder, and certain additional non-conviction information. The disclosure, however, must meet the criteria for “exceptional disclosure”. The criteria to be considered in making that determination includes the nature of the incident, how long ago the incident occurred, and whether the incident involved a vulnerable person.
In addition to limiting disclosure, the Act also prescribes a system for how to disclose information in police record checks. It describes how to request a police record check, how police respond, selecting which type of check is to be performed, as well as the proper scope and manner of disclosure. A police record check provider cannot conduct a police record check unless the individual provides prior written consent and the information may only be disclosed to the person or organization he or she authorizes. The individual is given an opportunity to review the results first, and must provide written consent before the authorities can disclose the information. If the individual believes that non-conviction information is unjustly included, there is a reconsideration process available.
Anyone who wilfully contravenes the Act is liable to a fine of not more than $5,000.
What is the Potential Impact of the Act on Employers?
It is clear that the standardized process will limit the information an organization will receive in response to a criminal record check. The new framework is based on consent and the protection of an individual’s privacy. As a result, information in police record checks will only be disclosed by the authorities where an individual consents. Organizations should be aware of the new rules in the Act, update their policies to adapt to the new requirements, and retrain staff conducting criminal record checks.