On December 1, 2015, the Ontario government passed the Police Record Checks Reform Act, 2015 (the “Act”), which has not yet come into force. The Act will apply to searches used to screen individuals for both employment and volunteer positions. Once in force, the Act will impact the information that can be released by police record checks.
Previously, Ontario did not have a standardized framework for conducting police record checks. The information collected and disclosed by police varied considerably across the province. Police record checks sometimes revealed information about an individual’s mental health or personal circumstances. This gave rise to complaints and privacy concerns, and occasionally it created barriers to employment.
New Framework for Limited Disclosure
The new legislation creates a uniform standard for criminal record checks in Ontario and limits the information that may be disclosed. Except in limited circumstances, the law prohibits disclosure of mental health records and non-conviction information, such as withdrawn or dismissed charges and acquittals. The new law 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 can only disclose criminal convictions for which a pardon has not been issued or granted, and findings of guilt under Canada’s Youth Criminal Justice Act;
- Criminal record and judicial matters checks can also disclose 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;
- Vulnerable sector checks can only be performed when an individual is in a position of trust or authority over vulnerable persons like children or the elderly. These checks permit additional disclosure of charges where the individual was found not criminally responsible on account of mental disorder and certain additional non-conviction information. This additional disclosure must, however, meet the criteria for “exceptional disclosure”, which considers how long ago the incident occurred and whether the incident involved a vulnerable person.
A police record check provider cannot conduct a police record check unless the individual provides prior written consent. Once the record check has been conducted, 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 process available.
What is the Potential Impact of the Act on Condominium Corporations?
The new standardized process will limit the information an organization will receive in response to a criminal record check. Information in police record checks will only be disclosed by the authorities where an individual has reviewed the results and consented to the disclosure. Organizations should be aware of the new rules in the Act, update their policies to adapt to the new requirements, and retrain any staff conducting criminal record checks.