On December 1, 2015, Ontario passed the Police Record Checks Reform Act, 2015, (the “Act”) which will have concrete implications for the ways in which employers conduct criminal background checks, and the information that will be made available to employers pursuant to these checks.
The Act establishes comprehensive province-wide standards governing the type of information that can be disclosed by police in response to record check inquiries, and is intended to remove unnecessary barriers to employment, suitability to hold a license or office, application to an educational program and participation in volunteer activities. The policy rationale underlying the Act is concerned with preventing the inappropriate disclosure of non-conviction and non-criminal records, such as information obtained from street checks or “carding”, as well as mental health information.
This new legislation creates three categories of record checks, as follows:
- 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 released by police authorities. From an operational perspective, employers most often rely upon the first category, criminal records checks, as a pre-employment screening tool. Pursuant to section 9 of the Act, the disclosure of “non-conviction information” is now largely prohibited in the context of criminal record checks, with “non-conviction information” being 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 (i.e. outstanding charges for which no conviction has been entered), court orders made against individuals, and criminal offences that resulted in a finding of “not criminally responsible” on account of mental disorder, among other information.
Because vulnerable sector checks are carried out in contexts where the individual in question will be in a position of trust or authority in relation to vulnerable persons, such as children, the Act permits more extensive disclosure in response to this category of records checks. For instance, each of the types of “non-conviction information” listed above would be disclosed pursuant to a vulnerable sector check, subject to certain temporal and other limits. The Act also permits the “exceptional disclosure” of non-conviction information in relation to a vulnerable sector check where certain conditions are satisfied (see s. 10.1).
In all three 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).
Perhaps the most significant implication of the Act is the fact that it requires that the individual about whom requested information relates first receive and have an opportunity to review the information, and then consent to its disclosure (see s. 12). In the event that potentially inappropriate non-conviction information is included in a record, subsection 10(4) of the Act provides that the individual may request a reconsideration of the disclosure. As a result, employers who conduct pre-employment criminal record checks will now only have the results of the checks disclosed to them by authorities where the prospective employee has consented to the disclosure. Employers should therefore familiarize themselves with the Act, and assess its implications for existing pre-employment background check practices.
The Act received Royal Assent on December 3, 2015, and comes into force on the date proclaimed by the Lieutenant Governor. Its full text can be found here.