On December 1, 2015, the Ontario government passed Bill 113 the
Police Record Checks Reform Act, 2015 (the
"Act"), which will come into force at a date to be
determined in the near future. The Act applies to persons who
require a search to be conducted in order to screen an individual
for the purposes of determining his or her suitability for
employment, volunteer work, a license, or admission to an
Once in force, the Act will impact how employers conduct police
record checks and the information that can be released by those
checks. Organizations will be required to request police record
checks in the specific manner as set out in the Act. The Act will
limit the disclosure of non-conviction and non-criminal records,
such as arrests where no criminal charges were laid, as well as
mental health information.
Prior to the enactment of Bill 113, a standardized framework for
conducting police record checks did not exist. The information
collected and disclosed varied considerably between municipal
police forces, and advocates took issue with the broad scope and
inconsistent practices. Much of the criticism pertained to the
adverse effect background checks have on the individual. The
concern was that the information collected and disclosed was broad
enough to create privacy concerns and barriers to employment for
New Framework for Limited Disclosure
The new framework provides a comprehensive standard for limiting
the information that may be disclosed. The Act specifically
prohibits disclosure of mental health records, non-conviction
information such as withdrawn or dismissed charges and acquittals,
except in limited circumstances.
The Act establishes three categories for police record checks
and sets out the type of information that will be disclosed in
response to each check:
Criminal record checks;
Criminal record and judicial matters checks; and,
Vulnerable sector checks.
For each of these categories, the Act limits and standardizes
the information that may be disclosed by police.
In a standard criminal record check, only criminal convictions
for which a pardon has not been issued or granted and findings of
guilt under the Youth Criminal Justice Act are permitted
to be disclosed.
A criminal record and judicial matters check additionally
permits the disclosure of court orders made against the individual,
criminal offences for which the individual was found guilty but
received a conditional or absolute discharge, and criminal offences
for which there is an outstanding charge or warrant to arrest.
For vulnerable sector checks which are performed when an
individual is in a position of trust or authority over vulnerable
persons like children or the elderly, the scope of information
disclosed is extended to include charges where the individual was
found not criminally responsible on account of mental disorder, and
certain additional non-conviction information. The disclosure,
however, must meet the criteria for "exceptional
disclosure". The criteria to be considered in making that
determination includes the nature of the incident, how long ago the
incident occurred, and whether the incident involved a vulnerable
In addition to limiting disclosure, the Act also prescribes a
system for how to disclose information in police record checks. It
describes how to request a police record check, how police respond,
selecting which type of check is to be performed, as well as the
proper scope and manner of disclosure. A police record check
provider cannot conduct a police record check unless the individual
provides prior written consent and the information may only be
disclosed to the person or organization he or she authorizes. The
individual is given an opportunity to review the results first, and
must provide written consent before the authorities can disclose
the information. If the individual believes that non-conviction
information is unjustly included, there is a reconsideration
Anyone who wilfully contravenes the Act is liable to a fine of
not more than $5,000.
What is the Potential Impact of the Act on Employers?
It is clear that the standardized process will limit the
information an organization will receive in response to a criminal
record check. The new framework is based on consent and the
protection of an individual's privacy. As a result, information
in police record checks will only be disclosed by the authorities
where an individual consents. Organizations should be aware of the
new rules in the Act, update their policies to adapt to the new
requirements, and retrain staff conducting criminal record
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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