An employer may request a criminal record check for the purpose of attaining relevant information about a prospective employee’s current or past criminal charges.
While this process may cause stress for employees, it is generally conducted to ensure the individual is most suitable for the position, and that it would not pose any sort of risk, or concern the employer, workplace, or others.
It is important for employers to know what is included in a criminal record check and when it is appropriate to request one. We at Sultan Lawyers PC, discuss these considerations below.
What regulates employer police record checks in Ontario?
Privacy, human rights and regulatory laws govern the rules of background checks in Canada.
In Ontario specifically, the Police Record Checks Reform Act, 2018 sets out the law of police record checks. This piece of legislation permits employers to carry out three different types of police record checks:
- Criminal record check: This general record check can provide information pertaining to an adults criminal convictions and findings of guilt under the Youth Criminal Justice Act.
- Criminal record and judicial matters check: This can disclose adult criminal convictions, findings of guilt under the Youth Criminal Justice Act during the access period, absolute and conditional discharges, outstanding charges, arrest warrants, some judicial orders and past peace bonds obtained.
- Vulnerable sector check: This check includes the same type of information disclosed in a criminal record and judicial matters check. In addition, it also releases information relating to court findings of not “criminally responsible due to mental disorder”, record suspensions, pardons related to sexually-based offences and in certain circumstances, and non-conviction charge related information.
When is it appropriate to request a criminal record check?
As an employer, generally you can request criminal record checks at any point in the hiring process so long as the request is within the limits of the associated governing bodies. There are however, limitations and restrictions as to when employers can request a vulnerable sector check. Employers who are able to request this kind of record check include; employers who employ workers or volunteers in positions of trust or authority over children (under age 18) or other vulnerable persons due to dependency, a disability or other circumstances, whether temporary or permanent. Some example occupations include; education, early years education, child care, justice sectors, and in relation to certain roles within the Ontario Public Service.
What kind of information is disclosed within a criminal record check?
While the type of information that can be disclosed under each check differs, the Police Record Checks Reform Act has specific clauses to protect employees. The below factors are the most emphasized requirements that apply to all types of record checks:
Consent must be provided by the individual who is being asked to provide a police records check for the first time; the individual subject to the record check has the right to view the contents of their results to confirm they are correct before they can be asked to share the results with the employer; except, in a situation where the individual self-discloses their results.
Non-disclosure of the below information
Whether an individual was a victim or witness of a crime; If the individual had non-criminal (i.e., did not lead to charges) contact with police while they were suffering from a mental health crisis.
If youth records are released to an individual, they are released as a separate record and should not be shared with anybody else, including a potential employer.
How can I conduct a criminal record check?
Employers can request a police record check from municipal police like the Toronto Police Service or the Ontario Provincial Police. There are also private businesses that provide police record checks services for employers.
How can you protect employees’ human rights?
In employment, a person cannot be discriminated against in employment because of a “record of offences.” However, as an employer, you may observe a potential employees record of offences to consider whether the offence would impact the person’s ability to do the job and or increase risk associated with them doing it. In this case, an employer can refuse to hire someone based on a record of offences only if it is deemed that it is reasonable and justified in accordance with the duties and circumstances of the job.
Few examples are outlined below, for further understanding:
- A truck driver with serious or repeated driving convictions
- A teacher who works alone with children who is convicted of child sexual abuse in a school setting
To protect employees’ human rights, employers should only ask job applicants and employees to disclose specific criminal record information if they have identified that certain criminal convictions or offences are related to the fundamental requirements of the job.
If your current or potential employer asks you to submit to a criminal record check or any other background check and you have any questions or concerns, or if you believe you have been denied a job based on information about your past, it is best to consult with a knowledgeable employment lawyer.
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