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Bulletin

New Rules on Police Record Checks in Ontario

Fasken
Reading Time 4 minute read
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Labour, Employment and Human Rights Bulletin

On November 1, 2018, the Police Record Checks Reform Act, 2015 (the "Act"), which was introduced in 2015, came into force. The Act standardizes the type of police record checks that can be done, and the type of information that will be disclosed. Before the Act became law, there were no province-wide rules. Each police service could decide how checks were performed, and what information was disclosed.

Types of Record Checks

Under the Act, there are three types of record checks:

  1. criminal record;
  2. criminal record and judicial matters; and
  3. vulnerable sector.

Criminal Record

The criminal record check is the most basic, and provides the least amount of information. It provides access to every:

  • Conviction of a criminal offence that has 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 authorized by the Youth Criminal Justice Act.

 Criminal Record and Judicial Matters

The criminal record and judicial matters check is the type of check that will be most commonly used by employers. In addition to information available in the criminal record check, it also provides access to every:

  • Conviction of a criminal offence where an absolute discharge was granted, if the request is made less than one year after the absolute discharge;
  • Conviction of a criminal offence 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 only available for 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. These are the types of checks commonly required for teachers.

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

  • Every conviction of a criminal offence 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 authorized for exceptional disclosure in accordance with the Act.

The test for exceptional disclosure is very high and applies only to offences that are (1) defined by the "Specified Offences" regulation, (2) where the alleged victim was a child or vulnerable person and (3) 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 organization can request a police record check on someone if they have that person's consent. The results must first be disclosed by the police record check provider to the person being searched. Only if that person consents after receiving the results may the provider give the information to a third-party.

This means employers cannot obtain employee consent to conduct a police record check and directly obtain the results of the check from the record provider. The employee must receive the results and then consent to their release to the employer.  

Takeaways

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

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


 


 

[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.

 

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