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Changes to police record checks

inspectionsOn June 3, 2015, the Ontario government has tabled Bill 113, Police Record Checks Reform Act to eliminate unnecessary barriers to employment, education and volunteer opportunities resulting from the inappropriate release of non-conviction or mental health information disclosed during a police record check.

A police record check refers to a search of records that are held in police databases pertaining to a specific individual. It is often used as part of a screening process for employment, volunteering and when applying for a professional licence. Police record checks are just one tool that organizations may choose to screen potential employees or volunteers, but they must have a justifiable reason to do so.

The proposed legislation is modeled after the September 2014 version of the Law Enforcement and Records Managers Network Guideline, which was developed with input from many community partners such as a broad spectrum of policing, civil liberties, human rights, community safety, mental health and non-profit groups in Ontario.

The Bill would propose the province’s first clear, consistent and comprehensive set of standards for how police record checks are requested, conducted and disclosed by:

  • Ensuring that all police services in Ontario consistently offer three types of police record checks-criminal record checks, criminal record and judicial matters checks, and vulnerable sector checks.
  • Limiting and standardizing the types of information that can be released for each type of police record check. Non-criminal information, mental health information and local police contact information would not be disclosed through any of the three proposed police record checks. This includes information related to a person who was a victim or witness of a crime, or who had non-criminal contact with police during a mental health crisis.
  • Setting rules for how police records would be released. The person to whom a record relates would have to provide consent for a police record check to be conducted, and would have to consent to the disclosure of the record check results to a third party.
  • A person could only consent to his/her record check results being released to a third party after he/she has reviewed the results.
  • Ensuring that the person to whom a record relates has an opportunity to review the results prior to permitting its release to a requesting third party.
  • Providing individuals with a process to request that certain types of non-conviction records, like dismissed charges, be reconsidered and not disclosed. Police services would be required to have a reconsideration process in place in accordance with regulations.

The checks would include the following information:

  • Criminal record check: Criminal convictions and findings of guilt under the Youth Criminal Justice Act.
  • Criminal record and judicial matters check: Criminal record check plus outstanding charges, arrest warrants, certain judicial orders, absolute discharges, conditional discharges, other records as authorized by the Criminal Records Act.
  • Vulnerable sector check: Criminal record and judicial matters check plus findings of not criminally responsible due to mental disorder, record suspensions (pardons) related to sexually-based offences and non-conviction information related to the predation of a child or other vulnerable person (i.e., charges that were withdrawn, dismissed or stayed, or that resulted in acquittals).

All people and groups involved in the process of conducting police record checks in Ontario, unless otherwise exempted, would be required to abide by the provisions of the legislation. This includes the Ontario Provincial Police, municipal and First Nation police services, government-authorized entities responsible for conducting record searches and third-party vendors involved in the intake of requests and disclosure of results. Due to the unique situations in which they are used, certain legislated processes will be exempt from the legislation, including police checks for non-parental custody applications (under the Children’s Law Reform Act), jury selection (under the Juries Act), representation of a child by the Office of the Children’s Lawyer, legal name change applications (under the Change of Name Act) and administration of the Firearms Act. In addition, the act would not apply to law enforcement investigations and proceedings.

A vulnerable sector check would be available in cases where an individual is in a position of trust or authority over vulnerable persons, like children or the vulnerable adults or elderly. The legislation also introduces a new test so that relevant non-conviction information required for vulnerable sector checks is released in order to keep vulnerable persons safe.

Where the release of non-conviction information may be permitted as part of a Vulnerable Sector Check, police services would be required to perform an assessment based on set criteria to determine if the information should be disclosed. Non-conviction information would not be disclosed except in the following circumstances: the information relates to an offence authorized for disclosure under the act; the victim was a child or other vulnerable person; there are reasonable grounds to believe that the individual has been engaged in a pattern of predation that presents a risk of harm to a child or other vulnerable person. If an individual believes that unjustified non-conviction information is included in the record check results, the person would be able to request reconsideration of the inclusion of that information.

Vulnerable person means a person who, because of age, disability or other circumstances, whether temporary or permanent, is (a) in a position of dependence on others; or (b) are otherwise at a greater risk than the general population of being harmed by a person in a position of authority or trust relative to them.

The legislation, if passed, would not impact or hinder other screening practices, such as personal reference checks, credit checks, performance reviews, client feedback or other assessments.

Disclosure of the following records would be subject to prescribed time limits:

  • Summary convictions: five years only
  • Findings of guilt under the Youth Criminal Justice Act: in accordance with the legislated time frames set out in the Youth Criminal Justice Act
  • Findings of Not Criminally Responsible due to mental disorder: five years only
  • Findings of guilt leading to absolute discharge: one year only
  • Finding of guilt leading to conditional discharge: three years only

Before proceeding to a police record check, employers should understand its obligations under the Ontario Human Rights Code with respect to evaluation, hiring and training volunteers or employees.

This article was originally published on HRinfodesk hrid-blog-banner-2015

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Yosie Saint-Cyr

Managing Editor at First Reference Inc.
Yosie Saint-Cyr, LL.B., is a trained lawyer called to the Quebec bar in 1988 and is still a member in good standing. She practiced business, employment and labour law until 1999. For over 15 years, Yosie has been the Managing Editor of the following publications, Human Resources Advisor, Human Resources PolicyPro, HRinfodesk and Accessibility Standards PolicyPro from First Reference. Yosie is one of Canada’s best known and most respected HR authors, with an extensive background in employment and labour across the country. Read more
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