Canada: New Rules Regarding Police Record Checks: Employers Take Note

On November 1, 2018, Bill 113, Police Record Checks Reform Act, 20151 (the "Act") will come into effect in Ontario. The Act standardizes the process for conducting police record checks, including checks requested by employers when screening an individual for employment purposes, and limits the information that may be disclosed in response to a check.

The Act standardizes the process by:

  • Defining Three Types of Record Checks. Police forces are authorized to conduct three types of police record checks: (i) criminal record checks; (ii) criminal record and judicial matters checks; and (iii) vulnerable sector checks.
  • Requiring Consent to Conduct the Check. The Act prohibits a record check provider from conducting a police record check in respect of an individual, unless the request contains the individual's written consent to the particular type of check.
  • Specifying Information that can be Disclosed. The Act permits the disclosure of certain types of information in relation to each type of check (e.g. a criminal record check discloses every criminal offence of which the individual has been convicted for which a pardon has not been issued or granted). However, the Act only permits the disclosure of "non-conviction information"2 in response to a vulnerable sector check, provided the information satisfies the prescribed criteria for "exceptional disclosure".3 In certain circumstances, the Act also prohibits disclosure of information that is more than a year old.
  • Requiring Consent to Disclose Results. The Act prohibits a record check provider from disclosing information to any other person aside from the individual who is the subject of the check, unless the individual is provided with an opportunity to review and consents to the disclosure of the same.
  • Limiting the Use of Information. The Act also prohibits a person or organization that receives the results of the check from using or disclosing the information except for the purpose for which it was requested or as authorized by law.
  • Setting out a Process for Reconsideration. An individual may make a request for a police record check provider to reconsider a determination with respect to any requirement set out in the Act. However, the Act prohibits disclosure of non-conviction information if, after reconsideration, the provider determines the information does not meet the criteria for "exceptional disclosure". The record check provider must reconsider its determination within 30 days of receiving the request.

Employers Take Note

An employer should take steps now to ensure that its police record checks policy and procedures are in compliance with the new standardized procedure. Employers should also note the following:

  • Employers will no longer be able to obtain non-conviction information, unless the employer conducts a vulnerable sector check and the criteria for exceptional disclosure have been met;
  • Employers will be prohibited from using or disclosing the results of the check except for the purpose for which it was requested or as authorized by law;
  • Individuals being screened will be able to control the type of information disclosed because a police record check provider must obtain the individuals' written consent: (i) before the check is conducted; and (ii) before the record check provider discloses information authorized for disclosure by the Act to the requesting organization or person.
  • The written consent provided by the individual before the check is conducted must specify the check being consented to.
  • If a police record check is necessary, an employer will need to prepare for potential delays in obtaining the required information during the recruitment process.
  • Employers must also continue to be vigilant of their obligations under Ontario's Human Rights Code in relation to police record checks.

If you have any questions regarding the impact of Bill 113, Police Record Checks Reform Act, 2015 on your workplace, please do not hesitate to contact a member of our Labour & Employment group.

Footnote

1 S.O. 2015, c. 30.

2 "Non-conviction information" means information concerning the fact that an individual was charged with a criminal offence if the charge was dismissed, withdrawn, or stayed, or resulted in a stay of proceedings or an acquittal. This does not include information that is part of a record that may be kept under section 717.2 or 717.3 of the Criminal Code.

3Section 10(2)  Non-conviction information about the individual is not authorized for exceptional disclosure unless the information satisfies all of the following criteria: 1. the criminal charge to which the information relates is for an offence specified in the regulations made under subsection 22(2)(c) (specifying offences for the purposes of the criteria for exceptional disclosure of non-conviction information under section 10); 2. the alleged victim was a child or a vulnerable person; 3. after reviewing entries in respect of the individual, the police record check provider has reasonable grounds to believe that the individual has been engaged in a pattern of predation indicating that the individual presents a risk of harm to a child or a vulnerable person, having regard to the following: i. whether the individual appears to have targeted a child or a vulnerable person; ii. whether the individual's behaviour was repeated and was directed to more than one child or vulnerable person; iii. when the incident or behaviour occurred; iv. the number of incidents; and v. the reason the incident or behaviour did not lead to a conviction.

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