Police Record Checks – New Law on Background Checks

On November 1, 2018, the process for conducting police record checks will change dramatically. On that date, the Police Record Checks Reform Act (the “Act”) comes into effect in Ontario, and it will impact how employers conduct police record checks and the types of information they can get.

Currently, when potential employers carry out a police record check, they can receive a wide variety of non-conviction information, such as records of suicide attempts, complaints where charges were never laid, withdrawn charges and acquittals. The new Act now specifically prohibits disclosure of mental health records as well as non-conviction records, except in limited circumstances.

The Act allows police forces and other authorized third parties to conduct three categories of police record checks:

1. Criminal record check;
2. Criminal record and judicial matters check; and
3. Vulnerable sector check.

In a criminal record check, only criminal convictions for which a pardon has not been granted and findings of guilt under the Youth Criminal Justice Act can be disclosed. Summary convictions¹ can only be disclosed if the request is made within five years of the date of conviction.

In addition to the information disclosed through a criminal record check, a criminal record and judicial matters check permits the disclosure of conditional discharges for up to three years, absolute discharges for up to one year, outstanding criminal charges, warrants to arrest and certain court orders.

A vulnerable sector check is only permitted when an individual is in a position of trust or authority over vulnerable persons, like children and the elderly. The scope of the information disclosed includes all of the above plus charges where the individual was found to be not criminally responsible by reason of mental disorder. Non-conviction information may also be disclosed under this category,  if the criteria for “exceptional disclosure” is satisfied. The criteria to be considered in making that determination includes an in-depth review of the circumstances of the request and the relevance of the information. Where non-conviction information meets the new criteria for disclosure, the affected individual can apply for reconsideration and must be informed of how and when they can do so.

The Act also requires that a request for a police check contain the consent of the subject individual. The results of the check must first be disclosed to them, and they are then given an opportunity to review the results before the information is released to the employer. If the person believes, for example, that non-conviction information is unjustly included, there is a reconsideration process available. The record will only be released to the employer after the person consents in writing. The employer can only use the disclosed information for the purposes for which it was originally requested.

Below is a handy summary of the types of record checks and what can be obtained.

Some employers have a practice of requiring far too much personal information, regardless of privacy rights. Not every hire requires a criminal record check, and even organizations that can justify more intrusive checks cannot necessarily mandate them for every single position. Requiring more than you are entitled to can expose an employer to liability, in addition to depriving them of qualified candidates. Our lawyers can advise employers with respect to the types of background checks that can be justified and help them avoid such liability.

Individuals that are asked to consent to intrusive record checks should seek legal advice regarding whether such a request/requirement is justifiable, before simply acquiescing.

Our team is here to help. If you would like more information about your rights or obligations under the Act, you  should contact us to arrange a consultation. One of our lawyers will be happy to discuss your concerns with you in more detail.   

Types of Record Checks and What Can Be Obtained

Type of Information	Criminal Record Check	Criminal Record and Judicial Matters Check	Vulnerable Sector Check
Every criminal offence of which the individual has been convicted for which a pardon has not been granted.	Disclose. Do not disclose summary convictions that are more than five years old.	Disclose. Do not disclose summary convictions that are more than five years old.	Disclose. Do not disclose summary convictions that are more than five years old.
Every finding of guilt under the Youth Criminal Justice Act (Canada) during the applicable period of access under the Act.	Disclose.	Disclose.	Disclose.
Every criminal offence where the individual received an absolute discharge.	Do not disclose.	Disclose. Do not disclose after one year.	Disclose. Do not disclose after one year.
Every criminal offence where the individual received a conditional discharge on conditions set out in a probation order.	Do not disclose.	Disclose. Do not disclose after three years.	Disclose. Do not disclose after three years.
Every criminal offence where there is an outstanding charge or warrant to arrest.	Do not disclose.	Disclose.	Disclose.
Every court order made against the individual.	Do not disclose.	Disclose. Do not disclose: -court orders made under the Mental Health Act or under Part XX.1 of the Criminal Code (Canada). -court orders made in relation to a withdrawn charge. -restraining orders made under the Family Law Act, the Children’s Law Reform Act or the Child and Family Services Act.	Disclose. Do not disclose: -court orders made under the Mental Health Act or under Part XX.1 of the Criminal Code (Canada). -court orders made in relation to a withdrawn charge. -restraining orders made under the Family Law Act, the Children’s Law Reform Act or the Child and Family Services Act.
Every criminal offence that resulted in a finding of not criminally responsible on account of mental disorder.	Do not disclose.	Do not disclose.	Disclose. Do not disclose after five years or if the individual received an absolute discharge.
Any conviction that has been pardoned.	Do not disclose unless authorized under the Criminal Records Act (Canada).	Do not disclose unless authorized under the Criminal Records Act (Canada).	Do not disclose unless authorized under the Criminal Records Act (Canada).
Any non-conviction information authorized for exceptional disclosure.	Do not disclose.	Do not disclose.	Disclose.

 

Footnotes

1. Summary convictions are criminal offences which are resolved without a jury trial. Unless another punishment is provided by law, the maximum punishment is a sentence of six months imprisonment, a fine of $5,000.00 or both.