Background checks of potential employees and volunteers has always been an important recruiting and screening tool for potential employers.
Ontario has overhauled its legislation, effective November 1, 2018. Now, the Ontario government has applied uniform, standardized checks available and the information that can be obtained. No more discretionary decisions by the local police service. Everybody now follows the same rules.
Firstly, now an employer can only request a potential employee to provide a “police record check” if the employee consents. If that consent is given, the information may only be disclosed initially by the police service to the potential employee whose background is searched. Only if the employee consents, after receiving and reviewing the results, may the police service give the information to a third party, such as a potential employer.
Accordingly, hiring employers can no longer obtain the background search results directly from the police service, even if the potential employee consents.
If, for example, an employer offer contains a condition for a background check, the employee candidate must: (a) consent; and (b) obtain and review the check results directly and, after doing so, deliver those directly to the employer.
Secondly, there are now three, specific kinds of checks available:
[1] Criminal Record Check:
The basic one, giving the least amount of information; namely:
- criminal convictions that have not been pardoned; and
- findings of guilt under the federal Youth Criminal Justice Act, but these records may only disclosed entirely separately and cannot be disclosed to a potential employer, unless expressly permitted by the Youth Criminal Justice Act (which is very restrictive and does not help most employers in Ontario).
[2] Criminal Record and Judicial Matters Check:
This check gives the information available from a criminal record check, but also access to:
- criminal convictions, where an absolute discharge was granted, if the request is made less than one year after the absolute discharge;
- criminal convictions, where a conditional discharge was granted on conditions in a probation order (if the request is made less than three years after the conditional discharge);
- every outstanding charge or arrest warrant for a criminal offence; and
- every court order made against the individual, with certain exceptions.
This check is the most common for employers to request when hiring a new employee.
[3] Vulnerable Sector Check:
The most robust yield of information, but the most restricted check. It can only be requested, effectively, for people with access to vulnerable persons, being anyone whose age, disability or other circumstances makes them dependent on others, or at a greater risk of being harmed by a person in a position of trust or authority.
The additional information from this check includes:
- every criminal conviction, where a finding of not criminally responsible on account of mental disorder was made (if the request is made less than five years after the date of the finding or absolute discharge); and
- any non-conviction information authorised for exceptional disclosure in accordance with the act – a very high test.
For exception disclosure, it only applies to offences:
- are defined by the specified offences regulation;
- for which the alleged victim was a child or vulnerable person; and
- when the police record check provider has reasonable grounds to believe that the person subject to the check has been engaged in a pattern of predation indicating that the person presents a risk of harm to a child or a vulnerable person, based on:
- whether the person appears to have targeted a child or a vulnerable person;
- whether the person’s behaviour was repeated and was directed to more than one child or vulnerable person;
- when the incident or behaviour occurred;
- the number of incidents; and
- the reason the incident or behaviour did not lead to a conviction.
Legislation:
Police Record Checks Reform Act, 2015, SO 2015, c. 30 (effective Nov. 1, 2018).
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