New rules on police record checks in Ontario

Types of record check
Restrictions on disclosing record checks
Takeaways

On 1 November 2018 the Police Record Checks Reform Act 2015 came into force. The act standardises the types of police record check that can be performed and the types of information that can be disclosed. Before the act became law, there were no province-wide rules. Each police service could decide how to perform checks and what information to disclose.

Types of record check

Under the Police Record Checks Reform Act there are three types of record check:

• criminal record checks;
• criminal record and judicial matters checks; and
• vulnerable sector checks.

Criminal record
The criminal record check is the most basic and provides employers with the least amount of information. Specifically, a criminal record check includes:

• criminal convictions that have not been pardoned; and
• findings of guilt under the federal Youth Criminal Justice Act.(1)

However, the records relating to any findings of guilt under the Youth Criminal Justice Act must be disclosed on a separate record and cannot be shared with an employer unless expressly authorised by the Youth Criminal Justice Act.

Criminal record and judicial matters
Employers will most commonly use the criminal record and judicial matters check. In addition to the information available in the criminal record check, criminal record and judicial matters checks also provide access to every:

• criminal convictions where an absolute discharge was granted, if the request is made less than one year after the absolute discharge;
• criminal convictions where a conditional discharge was granted on conditions in a probation order (if the request is made less than three years after the conditional discharge);
• every outstanding charge or arrest warrant for a criminal offence; and
• every court order made against the individual with certain exceptions.(2)

Vulnerable sector check
The vulnerable sector check provides access to the most information. Generally, it is available only to individuals with access to vulnerable persons. A 'vulnerable person' is someone whose age, disability or other circumstances makes them dependent on others, or at a greater risk of being harmed by a person in a position of trust or authority. Vulnerable sector checks are commonly required for teachers.

In addition to the information available in the first two checks, the vulnerable sector check provides access to:

• every criminal conviction where a finding of not criminally responsible on account of mental disorder was made (if the request is made less than five years after the date of the finding or absolute discharge); and
• any non-conviction information authorised for exceptional disclosure in accordance with the act.

The test for exceptional disclosure is high and applies only to offences:

• that are defined by the specified offences regulation;
• where the alleged victim was a child or vulnerable person; and
• where, after reviewing entries in respect of the individual, the police record check provider has reasonable grounds to believe that the person subject to the check has been engaged in a pattern of predation indicating that the person presents a risk of harm to a child or a vulnerable person, having regard to the following:
  • whether the individual appears to have targeted a child or a vulnerable person;
  • whether the individual's behaviour was repeated and was directed to more than one child or vulnerable person;
  • when the incident or behaviour occurred;
  • the number of incidents; and
  • the reason the incident or behaviour did not lead to a conviction.

Restrictions on disclosing record checks

An individual, person or organisation can request a police record check on an employee if they have that person's consent. The results must first be disclosed by the police record check provider to the employee who is being searched. Only if they consent after receiving the results may the provider give the information to a third party.

Therefore, employers cannot obtain employee consent to conduct a police record check and directly obtain the results of the check from the record provider.

Takeaways

This is an important change for employers that use police record checks to screen employees, applicants, volunteers or others. Employers must understand the differences between the three types of check to ensure that the correct check is requested in each situation.

Employers should also update their background check policies and procedures to ensure that they are complying with the new restrictions on disclosure. Employers using third-party background check companies should confirm that their service providers have also updated their procedures.

For further information on this topic please contact Megan Beal at Fasken by telephone (+1 613 236 3882) or email (mbeal@fasken.com). The Fasken website can be accessed at www.fasken.com.

Endnotes

(1) This is limited to the applicable period of access under that legislation.

(2) The police service will not disclose:

• court orders made under the Mental Health Act or under Part XX.1 of the Criminal Code;
• court orders made in relation to a charge that has been withdrawn; or
• restraining orders made against the individual under the Family Law Act, the Children's Law Reform Act or the Child, Youth and Family Services Act 2017.