Ontario employers who conduct police record checks for hiring or other purposes should be aware that new legislation comes into force on November 1, 2018. The Police Record Checks Reform Act, 2015  and its Regulations will apply to checks conducted on a Canadian police database. At present, police record checks are not regulated and practices vary depending upon where the check is completed. As of November 1, the process and contents of police record checks will be standardized in Ontario. Below, we outline what you need to know about the new requirements.

Consent required at two stages

The subject individual must give his or her written consent at the following stages:

(i) Consent to Conduct the Check: at the outset, the individual must consent to the particular type of check to be conducted; and

(ii) Consent to Disclose the Results: after receiving the results of the check, the individual must consent to the police record check provider providing a copy to the organization or person requesting the check.

Types of checks

Where consent is given as described above, Ontario’s police services will provide three types of checks:

(1) criminal record check;

(2) criminal record and judicial matters check; and

(3) vulnerable sector check.

The Act specifies the type of information that a police record check provider can disclose in relation to each type of check. The applicable information for each check is outlined below.

Criminal Record Check Criminal Record and Judicial Matters Check Vulnerable Sector Check
Criminal offence for which a pardon has not been issued or granted (except summary convictions from more than 5 years ago) Criminal offence for which a pardon has not been issued or granted (except summary convictions from more than 5 years ago) Criminal offence for which a pardon has not been issued or granted (except summary convictions from more than 5 years ago)
Finding of guilt under the Youth Criminal Justice Act Finding of guilt under the Youth Criminal Justice Act Finding of guilt under the Youth Criminal Justice Act
Conviction for which a pardon has been granted only disclosed where authorized under the Criminal Records Act (Canada) Criminal offence where individual was found guilty and received an absolute discharge (except where request made more than 1 year after absolute discharge) Criminal offence where individual was found guilty and received an absolute discharge (except where request made more than 1 year after absolute discharge)
Criminal offence of which the individual has been found guilty and received a conditional discharge on conditions set out in a probation order (except where request is made more than 3 years after the date of the conditional discharge) Criminal offence of which the individual has been found guilty and received a conditional discharge on conditions set out in a probation order (except where request is made more than 3 years after the date of the conditional discharge)
Criminal offence for which there is an outstanding charge or warrant to arrest in respect of the individual Criminal offence for which there is an outstanding charge or warrant to arrest in respect of the individual
Court order made against the individual, with certain exceptions Court order made against the individual, with certain exceptions
Conviction for which a pardon has been granted only disclosed where authorized under the Criminal Records Act (Canada) Conviction for which a pardon has been granted only disclosed where authorized under the Criminal Records Act (Canada)
Criminal offence charge resulting in finding of not criminally responsible on account of mental disorder, with certain exceptions
Non-conviction information authorized for exceptional disclosure in accordance with s. 10 of the Act

Restrictions on information provided

A criminal record check would not contain information about a criminal offence for which the individual received an absolute discharge. Additionally, non-conviction information in response to a request for a vulnerable sector check cannot be disclosed unless it satisfies certain criteria for “exceptional disclosure.” The criteria are: (1) the offence is one of the offences enumerated in the Regulations (2) the alleged victim was a child or a vulnerable person and (3) the police record check provider has reasonable grounds to believe the individual presents a risk of harm to a child or a vulnerable person, having regard to certain factors.

Restrictions on disclosure

An organization or person may not disclose information provided in the check except for the purpose for which it was requested or as authorized by law.

Reconsideration request

Generally, a request for reconsideration must be made in writing, not later than 45 days after receiving the record and the request can be accompanied by written submissions to be taken into account by the police record check provider. The provider has 30 days from the day after it receives a request for reconsideration to reconsider its determination and notify the individual of its decision in writing. Non-conviction information will not be disclosed if after a reconsideration, the provider concludes that the information does not meet the criteria for “exceptional disclosure.”

Penalties

An organization or person that willfully contravenes certain sections of the Act can be liable for a fine of up to $5,000.

Key takeaways

Employers should take steps to ensure that their policies and practices for obtaining police record checks comply with the Act and Regulations. Employers should also keep the following in mind:

  • individuals being screened will need to consent in writing to the specific type of check to be conducted as well as to the disclosure by the police record check provider of the information to the employer;
  • employers will no longer have access to non-conviction information, unless they request a vulnerable sector check and the criteria for exceptional disclosure are satisfied;
  • the Act expressly prohibits requesting a police record check in respect of an individual in a manner other than in accordance with the Act or disclosing or using the information received other than for the purpose for which it was received or as authorized by law; and
  • employers who seek police record checks as part of the recruitment process should anticipate potential delays in obtaining the required information.

– Many thanks to Shereen Aly for her assistance with this article.