On December 1, 2015, the Ontario government unanimously enacted the Police Record Checks Reform Act, 2015 (the “Act”). The Act limits the types of information that can be released in each of three different types of police record checks. Notably, it prohibits disclosure of mental health records and records from police “carding” checks and other non-conviction records, except in limited circumstances. It also standardizes the disclosure procedure.
The Act is not yet in force, but will come into force on a date to be named by proclamation of the Lieutenant Governor. The Act will impact the information made available to employers, such as school boards and independent schools, when obtaining background checks, and may change the system in place for requesting them.
The Act was introduced after lobbying efforts from various civil liberties advocacy groups, who protested the broad scope and inconsistent practices of police record check disclosure. These checks had included more than convictions: they disclosed records of suicide attempts, mental health detentions, complaints where charges were never laid, withdrawn charges, and acquittals. This information became available when individuals attempted to cross the US border or when checks were conducted for volunteer, employment, educational, or licensing applications. The release of these non-conviction records was viewed as creating barriers to education, employment, volunteering, and other opportunities, and was criticized as counter to the presumption of innocence.
The Act generally applies to checks conducted as part of applications for employment, volunteering, licencing, office, group membership, and education. It does not affect searches conducted for child custody, youth criminal justice, change of name, juries, firearms, or Crown prosecution purposes.
The Act authorizes police forces to conduct three defined types of police record checks: (1) criminal record checks, (2) criminal record and judicial matters checks, and (3) vulnerable sector checks (performed when an individual is in a position of trust or authority over vulnerable persons like children or the elderly). Each category has specific disclosure permitted and standardized, as discussed below.
LIMITED DISCLOSURE PERMITTED
The Act sets out a schedule that outlines when disclosure is permitted. The schedule addresses information relating to mental health orders, convictions, absolute and conditional discharges, outstanding charges or arrest warrants, pardoned convictions, and other non-conviction information. Generally, the most disclosure is permitted for vulnerable sector checks, while the least disclosure is permitted for standard criminal record checks.
School boards are most often conducting vulnerable sector checks, as employees and volunteers will usually be working with children. Subject to certain temporal and other limits, most “non-conviction information” – meaning discharges, outstanding charges, court orders, and not criminally responsible findings – would be disclosed in a vulnerable sector check, but not for a standard criminal record check.
The Act’s most significant limitation on disclosure is in the areas of mental health and non- conviction information. Non-conviction information (such as complaints where no charges were laid, acquittals, etc.) can only be disclosed in a vulnerable sector check and only if it meets the test for exceptional disclosure, discussed below
Court orders made under the Mental Health Act or Part XX.1 of the Criminal Code generally may not be disclosed under any of the three types of records check. Criminal offences for which the individual has been found not criminally responsible on account of mental disorder generally may only be disclosed under a vulnerable sector check that is made within five years of the finding. Restraining orders made under the Family Law Act, Children’s Law Reform Act, or Child and Family Services Act, and court orders relating to charges that have been withdrawn, generally may not be disclosed under any type of check.
However, there are provisions in the Act for exceptions to these disclosure rules for vulnerable sector checks. Non-conviction information may be disclosed in a vulnerable sector check if it meets the test for “exceptional disclosure”. This test requires police to consider factors such as how long ago an incident took place, if the record relates to predatory behaviour around a vulnerable person, and whether the records show a pattern of such behaviour before deciding whether to release those records in a vulnerable sector check.
STANDARDIZED DISCLOSURE PRACTICES
In addition to limiting disclosure, the Act also prescribes a system for how to disclose information in record checks. It lays out requirements for how to request a record check, how to respond, selecting which type of check is to be performed, obtaining consent, proper scope and manner of disclosure, implementing a process for correcting errors, tracking statistics, and holding third parties accountable.
One significant implication of the Act’s disclosure process is that the subject of the check has an opportunity to review the results of a check before it may be disclosed to another person or organization. The results of a check may not be provided to the employer who requested the check unless the individual subject of the check provides his or her written consent after receiving the results.
A person or organization that willfully contravenes certain provisions of the Act is guilty of an offence, and is liable to a fine of not more than $5,000. A prosecution cannot be commenced unless the Minister of Community Safety and Correctional Services consents.
While the Act is not yet in force, it will likely be proclaimed in the near future. Given the implementation of different types of checks that carry different disclosure permissions, as well as the opportunity for the check’s subject to review the results before consenting to their disclosure, there may need to be changes to the system for requesting background checks. This means that school boards and independent schools should be prepared for new logistical and organizational steps in order to adapt.
Employers requesting record checks will no longer be provided with information about mental health orders or non-conviction records, except in limited circumstances.