Conducting criminal record checks in Ontario – Changes, they are a-coming

May 5, 2016 Rubin Thomlinson LLP Employee Relations, HR Policies and Procedures, Human Resources, Human Rights, Privacy and Security, Recruiting and Hiring, Union Relations

On December 3, 2015, the Ontario Legislature passed the Police Record Checks Reform Act. The Act will come into force upon proclamation by the Lieutenant Governor of Ontario, which date has yet to be announced though it is expected to occur in the next few weeks. The Act would bring about a sea change in the manner in which criminal record checks are conducted.

The Act is intended to ensure a province-wide standard for police record checks, and to significantly limit the disclosure of certain records deemed to be “non-criminal”. The stated purpose of the Act is to increase employment and volunteering opportunities for persons who would previously been barred from such opportunities due to the disclosure of these “non-criminal” records.

The Act recognizes three types of checks: criminal record checks, criminal records and judicial matters check, and vulnerable sectors checks. The “basic” criminal record check would be limited to criminal convictions for which a pardon has not been granted, but would exclude summary convictions that occurred more than five years prior to the request. It would also include every finding of guilt under the Youth Criminal Justice Act during the applicable period of access under that Act (typically anywhere from a few months to five years after the finding of guilt). The other two types of checks provide additional information, more akin to a “traditional” criminal record checks currently in place.

Although the Act is silent on the issue of what type of criminal records check a potential new employer would be able to request, it provides for a great deal of discretion to enact regulations limiting these requests. I suspect that these regulations will prevent an employer, except in certain circumstances, from requesting anything other than the “basic” check given the stated intention of the legislation. As described in the debates by the Honourable Yasir Naqvi, Minister of Community Safety and Correctional Services, the intent of the legislation is as follows:

Although there may be a need to screen individuals for specific criminal matters to ensure they’re suitable to hold a particular job or volunteer position, a record check should not impose unnecessary systemic barriers to employment, education, volunteer work or other life opportunities.”

In addition to significantly limiting disclosure of information, the Act also establishes a rigorous process to be followed in order to request a check. Specifically, the request must indicate which type of check is to be conducted, and must contain the concerned individual’s written consent to that type of check being conducted. The results of the check must be disclosed to the concerned individual first, and the individual will have an opportunity to request corrections to the information contained in the check. The individual’s written consent must be obtained prior to disclosure to any third party. Once disclosed to a third party, that party is restricted in the use of the check to only those purposes for which it was originally requested.

By Adrian Ishak

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