The Ontario Government has passed
legislation which imposes new restrictions on criminal record
checks. All employers that rely on such checks should take
Bill 113, An Act Respecting
Police Records Checks restricts the type of information
that can be disclosed in criminal records checks for various
purposes, including screening of job applicants, volunteers and
employees. It also creates a uniform approach for how police
records checks are requested and disclosed and how the information
may be used.
Prior to Bill 113, criminal record
checks could disclose non-conviction information, including mental
health information, about the individual. Due to concerns arising
out of this overly broad disclosure, including human rights issues,
Bill 113 was introduced. Bill 113 sets out what information may be
obtained under three categories of criminal record checks:
Checks: A criminal record check may disclose all criminal
convictions for which a pardon has not been issued or granted, with
the exception of summary convictions (if the request has been made
five years after the conviction date) and findings of guilt under
the Youth Criminal Justice Act.
Criminal Record and Judicial
Matters Checks: In addition to the above, a criminal
record and judicial matters check may disclose absolute discharges
(if the request is made within one year), conditional discharges
(if the request is made within three years), and court orders made
against the individual with some exceptions, such as court orders
made under the Mental Health Act and court orders
made in relation to a charge that has been withdrawn.
Checks: Further information may be provided with
respect to vulnerable sector checks; however, restrictions still
apply. For instance, non-conviction information may be disclosed if
specific criteria for "exceptional disclosure" are
The legislation puts in place a
standardized process governing how requests are made, and when the
information will be disclosed. It stipulates that the individual
who is the subject of the search is entitled to see the results
prior to disclosure to the person or
organization making the request. It is only after the results have
been disclosed to the individual and the individual consents in
writing that the results will be disclosed to the requesting party.
When a person or organization does receive information
through this process, it cannot use the information for any other
purpose except that for which it was requested.
Employers that conduct criminal
records checks should ensure that when using a third party
screening provider, the provider complies with the new obligations
under the legislation. Employers that require criminal record
checks must also keep in mind their human rights obligations. Under
the Ontario Human Rights Code, employers are
prohibited from discriminating against an employee or prospective
employee with respect to a criminal conviction for which a pardon
has been granted. Human rights legislation in other provinces
dictates different standards. Employers with employees in multiple
jurisdictions should ensure they are familiar with the human rights
requirements in each applicable province.
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Receive expert guidance from experienced employment lawyers as to how your organization can comply with this new law painlessly and address workplace harassment effectively
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