New limitations on criminal record information provided to employers

New limitations on criminal record information provided to employers – By Margaret R. Truesdale, Research Director

On December 1, 2015, the Ontario legislature passed the Police Record Check Reform Act, 2015 (the “Act”).  When the Act comes into effect, it will limit the amount of information employers, volunteer organizations, licencing bodies and others will be entitled to access about an individual’s interactions with police.

The Act is a response to lobbying by civil liberties groups which criticized the extensive information that was often revealed to potential employers, voluntary organizations or licencing groups when a police records check was requested.  In some cases potential employers or voluntary organizations were provided with information about acquittals, withdrawn charges, mental health information and even information about the individual being a complainant or witness. There was a large variation in practices about what would be revealed by different police services, and no standard opportunity for an individual to dispute the information disclosed.  The Act is meant to regulate and standardize the approach to police record checks.

Types of records outlined in Act

The Act outlines three types of police checks:

• a criminal record check;
• a criminal record and judicial matters check; and,
• a vulnerable sector check.

The Act then controls the type of information that may be released with respect to each type of check.  A police service or other entity providing record checks may only release information in conformity with the provisions of the Act.

Criminal record check

In the context of a criminal record check, information may be released with respect to criminal convictions for which no pardon has been granted (but information about a summary conviction may not be released after 5 years), and a finding of guilt under the Youth Criminal Justice Act (but only during the applicable access period in the Youth Criminal Justice Act).  Information about convictions for which a pardon has been granted may only be disclosed in compliance with the Criminal Records Act.

Criminal record and judicial matters check

In the context of a criminal record and judicial matters check, it is permissible to release the same information released in a criminal record check, as well as information about absolute discharges (but not after more than one year), conditional discharges (but not after more than three years), arrest warrants for criminal offences, and court orders (but not Mental Health Act orders, orders under Part XX.1 of the Criminal Code (mental disorder provisions), orders relating to withdrawn charges, or orders under the Family Law Act, the Children’s Law Reform Act or the Child and Family Services Act).

Vulnerable sector check

In the context of a vulnerable sector check, it is permissible to release the same information as in a criminal record and judicial matters check.  In addition, information related to findings of not criminally responsible will be disclosed (but not after 5 years).  Non-conviction information authorized by section 10 of the Act will be disclosed in exceptional circumstances.

Exceptional circumstances for non-conviction disclosure

To disclose non-conviction information, all the following criterial must be met:

• the criminal charge is one specified by regulation;
• the alleged victim was a child or vulnerable person; and,
• a pattern of predation is demonstrated , having regard to the following factors:
• targeting children or vulnerable persons;
• repeated behaviour to more than one person;
• time of incidents;
• number of incidents;
• reason for non-conviction; and,
• other prescribed considerations.

Individuals receive disclosure first

Before the results of a police record check are disclosed to a third party, they must be disclosed to the subject individual.

Corrections

Every police record checker must establish a process to deal with claims of errors and/or omissions.

Offence

The Act creates an offence for wilful contravention of the Act, but ministerial consent is required to commence a prosecution.

Effect of the Act

When the Act is brought into force, it should bring clarity to the vexing question of what interactions may be disclosed to employers, voluntary organizations and licencing groups.  It will also provide time limits on how long summary conviction matters and absolute and conditional discharges may be disclosed.  Very strict conditions will attach to the disclosure of non-conviction information in the context of vulnerable sector checks.

The Act is clearly an attempt to balance the need for employers and others to know about an individual’s background, and the interest of an individual to move on with their life without the stigma of interactions with the criminal justice system following them forever.

Margaret R. Truesdale is a lawyer and the firm’s Research Director. She can be reached at [email protected] or 613.566.2820.