On December 3, 2015, the Ontario Legislature’s Bill 113, the Police Record Checks Reform Act, 2015, (the “Act”) received Royal Assent. The Act represents the first provincial legislation of its kind to provide a comprehensive framework aimed at establishing a consistent standard governing how a “police background check” (“PBC”) is requested, conducted and disclosed in the Province.
PBCs are often conducted as a conditional step, after an offer of employment is made. The scope of information potentially contained in police databases, and the limited restrictions vis-a-vis searches that were previously in place, provided few protections to prospective employees with a police record, and minimal guidance and structure for employers. This regime faced criticism because the release of non-criminal information was creating potential barriers to people’s education, employment, volunteering, and other opportunities. In response, Minister of Community Safety and Correctional Services, Yasir Naqvi, stated that “the main thrust of the legislation is to strictly limit the disclosure of non-conviction information and prohibit the disclosure of non-criminal information such as mental health information.”
Information in police records
The most common understanding of a PBC is that it confirms whether the subject has a “criminal record”—a record of crimes for which the individual has been convicted. However, the information contained in police databases varies considerably depending upon the particular municipal police force, and often includes information collected as a result of the individual coming into contact with the police for other reasons, such as:
- when they may have been assisted by police during a mental health crisis;
- when complaints or allegations have been made, either by or about the individual;
- when the individual has provided information as a witness or victim;
- when they have been the subject of surveillance or an investigation (whether or not charges were laid); and
- information about charges that may have resulted in an acquittal or other non-conviction disposition.
The previous framework for PBC disclosure
The restrictions that existed prior to the enactment of Bill 113 were a patchwork of legislative and common law rules. Each municipal police force set its own policies for conducting police record checks, leading to considerable variation between jurisdictions. While such policies generally did not provide for disclosure of all information held, they were also not limited to disclosure of criminal convictions. With the exception of the few limitations imposed by law or internal policies, the information provided could easily turn on the nature of the request submitted by an organization, and/or whether the record provider considered the information relevant to the request.
An employer’s potential exposure to information held by police is not without consequence. Background checks have the potential to give rise to claims for breach of human rights and privacy legislation, where an employer receives and is alleged to have acted upon information contained in the disclosure that is not directly related to the position at issue. This could include mental health information, pardons or provincial offences.
Disclosure Framework Under the Act
The Act establishes three types of record checks, which provide increasingly comprehensive disclosure:
- Criminal record check: as the most basic form of check, only permits the disclosure of criminal offences for which a pardon has not been issued or granted.
- Criminal record and judicial matters check: this intermediate level additionally permits disclosure of 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 check: this check extends the scope of information disclosed to include charges where the individual was found not criminally responsible on account of mental disorder, and non-conviction information, subject to enumerated exceptions.
Further, the Act requires the record check provider have written consent from the individual, specifying the type of check being consented to. Providers are not permitted to disclose the information provided to anyone other than the individual, unless so authorized. Finally, providers are also required to create and implement a process to respond to individual requests for corrections to information in respect of the individual.
Potential Impact of the Act
Unfortunately, the Act provides no guidance to employers regarding which checks may be appropriate for particular purposes. Therefore, it is unclear how this legislation will assist employers in obtaining the substantive assurances that they are looking for when completing a PBC.
Further, the entire regime is based on the consent of the individual. If an individual refuses to consent to a particular level of search, it is unclear as to whether this would be sufficient in all cases to withdraw an offer.
Additionally, under the “vulnerable sector check”, the Act permits disclosure of a criminal offence where the individual was charged within the past five years, but the charge resulted in a finding of not criminally responsible on account of a mental disorder. This creates a potential dilemma for employers, because acting on this information may constitute discrimination under human rights legislation.
Finally, while the Act requires record check providers to implement a process for corrections, there is no standardization or regulation in respect of information sharing between providers. This may potentially undermine the requirement, where incorrect information, once shared, continues to be returned under broad scope PBCs.