As of December 1, 2015, the new Police Record Checks Reform Act, 2015, (the Act) is passed as law in Ontario.
This will affect how employers, for example, conduct criminal background checks for new and existing employees and the information that will be available for these checks.
The Act brings into law fairly sweeping and comprehensive standards across Ontario dictating the type of information that can be disclosed by police in response to record check requests.
The goal of the Act is to remove barriers to employment, suitability to hold a license or office, application to an educational program and participation in volunteer activities.
The underlying policy motive of the Act is to prevent inappropriate disclosure of: (a) non-conviction and non-criminal records, such as information obtained from street checks or carding; and (b) mental health information.
The Act imposes three new categories of record checks:
- Criminal record checks;
- Criminal record and judicial matters checks; and
- Vulnerable sector checks.
For each of these, the Act both limits and standardizes the information that may be released by police agencies.
Generally, employers historically rely on criminal record checks in their screening of new, potential employees. Under the Act (section 9), the disclosure of non-conviction information is effectively prohibited (subject to a few exceptions) for criminal record checks, while non-conviction information is defined as including criminal offences for which an absolute or conditional discharge has been granted, criminal offences for which there are outstanding charges or warrants (such as, for example, outstanding charges for which no conviction has been entered), court orders made against individuals, and criminal offences that result in a finding of not criminally responsible due to mental disorder, for example.
Since vulnerable sector checks are historically done where the individual will be in a position of trust or authority over vulnerable persons, including children, the Act permits more extensive disclosure in response to this category of records checks. For example, each of the kinds of non-conviction information identified above could be disclosed by a vulnerable sector check, subject to certain limitations (time period, etc.).
The Act also permits the exceptional disclosure of non-conviction information with respect to a vulnerable sector check if certain conditions are satisfied.
For all of these categories, convictions for which a pardon has been granted will generally not be disclosed, although there is an exception where disclosure is authorized under the Criminal Records Act (Canada).
Arguably the most important change brought about by the Act is, pursuant to section 12, that it requires that the individual at issue is entitled to initially receive and have an opportunity to review the information and, after doing so, consent to the disclosure. If there is potentially inappropriate non-conviction information included in a record, sub-section 10(4) of the Act allows the individual to request a reconsideration of the disclosure. Therefore, employers will only likely be provided the results of the checks they request disclosed to them by authorities, if the employee at issue has consented to the disclosure.
Accordingly, employers should know and understand the Act, because it will impact what back ground (criminal) information can be obtained about existing or potential employees in the hiring and screening process.
The Act is not yet formally in force in Ontario, but will soon be.
This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.
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