The Toronto Police Services Board and the Ontario Human Rights Commission have recently released new policies and procedures dealing with the process for obtaining police record checks. Shortly thereafter, both the Ontario Court of Appeal and the Human Rights Tribunal of Ontario released decisions respecting the human rights and privacy protections afforded to employee-candidates who are asked to consent to police record or criminal background checks prior to employment. More recently, the Ontario Divisional Court has commented on the privacy implications related to updating criminal background information during an on-going employment relationship. Together, these developments have clarified what kind of criminal background information employers can request from employees and what can be done with the results of those inquiries.
Criminal Background v. Police Record Checks – What’s the Difference?
The Ontario College of Teachers Act, 1996 and the Education Act both require school boards and the Registrar of the College to obtain criminal background information pertaining to candidates for employment, or for certificates of qualification.
In most cases, the request for a criminal background check which verifies that the candidate has not been convicted of a crime (or a specific type of crime) is legally permissible. In fact, while the Ontario Human Rights Code (the “Code”) prohibits employers from refusing to hire, or retain, a candidate for employment on the basis of their “record of offences”, the Code defines “record of offences” narrowly.1
There are several different types of criminal background checks available. The most basic is what may be referred to as a criminal records search, or clearance letter. Typically, this is a printout of an individual’s criminal record, as it appears in the National Repository of Criminal Records maintained by the RCMP. A criminal records search therefore includes (only) unpardoned Criminal Code convictions and charges under the Criminal Code which are pending before the courts. A clearance letter typically confirms, if true, that the individual applicant has no criminal record.
An expanded criminal records search is also available for employers, like school boards, who are “responsible for the wellbeing of one or more children or vulnerable persons” (employers or agencies in the “vulnerable sector”).2 These are known as vulnerable sector checks. Such searches are conducted pursuant to section 6.3(2) of the Criminal Records Act (“CRA”).3 Vulnerable sector checks provide information about persons who have received a pardon for a sexual offence.
In addition to criminal records searches and vulnerable sector checks, most police services agencies can also conduct police record checks. Usually, these are much broader inquiries, which can disclose the candidate’s history of interaction with the police, including any interaction with the police under the Mental Health Act4 (i.e if the candidate has ever been apprehended and taken to hospital for assessment)5. Such checks gather information from a number of databases within the Canadian Police Information Centre (“CPIC”), also maintained by the RCMP.
The Ontario College of Teachers Act, 1996 and the Education Act both specifically require the collection, or submission, of criminal background information that includes national data from the CPIC database. Such collection is required both at the time that an individual is applying for a certificate of qualification, or applying for a job, and on a regular basis (usually yearly) following the commencement of employment. As such, most teachers and other school board employees (or service providers) with direct contact with students must submit to regular police record checks.
Recent Changes to the Procedures for Obtaining Police Record Checks.
Including school boards, the Toronto Police Service (the “Police Service”) has relationships with approximately 2,600 agencies and employers (hereinafter, collectively, “employers”) to conduct police record checks. Late in the Spring of 2009, the Police Service amended the process by which such employers can obtain police record checks. Chiefly, the changes now require an employer to specifically request, and to justify, its need for information about a candidate’s (or an employee’s) apprehensions, if any, under the Mental Health Act6 (the “MHA”). Without such a specific request or justification, MHA information about a particular candidate or employee will be suppressed.7 Toronto employers affected by these changes should have received correspondence directly from the Police Service.
In addition, each employer who wants to obtain police record check information about a candidate (or employee) must have, or apply for, an updated Memorandum of Understanding with the Police Service and must complete a Certification of Compliance. Both certify, among other things, that :
(i) at least one member of the Agency/Employer who is responsible for recruitment has (or will within 120 days from the date of execution) received training on the Ontario Human Rights Code and the Agency’s obligation thereunder with respect to recruitment;
(ii) the Toronto Police Service will not conduct a search of its data banks for information pertaining to the applicant’s interaction with the police under the MHA unless the agency/employer specifically certifies that the information is required because it is related to a bona fide occupational or volunteer requirement;
(iii) the Agency/Employer has extended a conditional offer of employment for the position to the applicant; and
(iv) the Applicant has completed a Consent to Disclosure and the Agency/Employer has provided the applicant with a copy, or the opportunity to review a copy, of the Police Service’s policies with respect to the police record check program.
It is important to note that police record checks can only be authorized by the individual applicant (or employee) him or herself. Similarly, the results of such searches are now only provided to the applicants. Accordingly, employers, including school boards, will no longer be provided advance notice of the results of any record check, or copies of any resulting report. Employers, including school boards, must seek that information from the applicants or employees themselves.
The changes to the Police Service’s procedure for conducting police record check are in response to recent publications and policy statements issued by the Ontario Human Rights Commission (the “Commission”).8 Key among these are the Commission’s Interim Guide on Police Record Checks for the Vulnerable Sector Screening9 and the, draft, Policy on Mental Health Discrimination and Police Records Checks10. Together these policies and publications emphasize the following relevant considerations:
(i) Police Record Checks should not be used where a Criminal Record Check/Clearance Letter would be more appropriate, and unless a bona fide occupational requirement exists.11
(ii) Police Record Checks (or Police Record Checks) may be needed for some high-risk jobs or volunteer positions (importantly, the Education Act and school boards are specifically used as examples here) but they must be used carefully and only as one possible tool in the overall assessment of a candidate;
(iii) Police Record Checks should only be requested after the candidate has been given a conditional offer of employment; and
(iv) Employers in the vulnerable sector must give particular thought to whether or not they need MHA information to assess a candidate’s (or employee’s) suitability and be prepared to justify any request for any such information.
For school boards and other employers outside of Toronto, the above considerations are equally relevant, however the specific procedure by which an employer or employee obtains police record information may vary. Employers are encouraged to consult with their local or regional police service for more information.
One of the good news results of the recent focus on police record checks is that the Commission has confirmed that requests for, and reliance on, criminal background or clearance letter inquiries are entirely legitimate, as long as pardoned convictions and provincial offences are not included.12 Moreover, a recent decision of Ontario Human Rights Tribunal has confirmed that the ground of record of offences, covers only those persons convicted of a criminal offence. As a result, in Mark David de Pelham v. Mytrak Health Systems Inc., et al13, the applicant's claim that he suffered discrimination in employment on the basis of his record of offences, as a result of being charged with a crime, was dismissed. In that case, Michael Gottheil, Chair of the Human Rights Tribunal of Ontario, held that he was without jurisdiction to consider the applicant’s claim.
There has also been a recent Ontario Court of Appeal case which has confirmed that disclosures by a police service of withdrawn charges relating to sexual assault and sexual exploitation, are not a violation of the Municipal Freedom of Information and Protection of Privacy Act. (“MFIPPA”)14. In Tadros v. The Peel Regional Police Service et al15 the plaintiff had signed authorization forms requesting a police record check in relation to prospective employment with various group homes as a counsellor. As a result of the police record check, which included evidence of the withdrawn charges, the plaintiff was denied employment. The plaintiff then sued the Peel Regional Police Service, arguing that collection and disclosure of the withdrawn charges was unlawful under MFIPPA and the Police Services Act. In the end, the Ontario Court of Appeal disagreed, finding that since the plaintiff had authorized the Toronto Police Service to undertake a police record check, there had been no violation of either statute.
There was a somewhat different result in another recent case, The City of Ottawa v. Ottawa Professional Firefighters Association16. At issue in that case was the City’s Criminal Records Check Policy which required individual firefighters to renew their police records check, at a minimum every three years. Both the arbitrator who heard the initial policy grievance respecting the policy and the Ontario Divisional Court agreed that the demand for mid-employment renewals of police record information was an unjustified invasion of the privacy rights of individual firefighters.
The decision at both levels focused on the fact that firefighting is not by its very nature the type of job that required ongoing scrutiny of the criminal history of employees. At the same time, it was specifically acknowledged by the arbitrator, at least, that there are some work settings where mid-employment renewals of police record checks could properly be expected. Specific examples cited by the arbitrator included social workers or others working closely with vulnerable children.
The latter case may have particular relevance to school boards who are required under the Regulations to the Education Act to collect offence declarations from each of its employees on a yearly basis. Since the thrust of the arbitrator’s concerns focused on the non-sensitive nature of a firefighters job, it is assumed that school boards would fall into one of the exceptions, as a work setting where the on-going scrutiny of an employee’s criminal history was to be expected.
For Toronto school boards and other employers in the vulnerable sector, it is crucial that those involved in requesting or assessing criminal background and police record check information, read, understand and follow closely the policies of the Toronto Police Service and the Ontario Human Rights Commission. Employers outside of Toronto are also bound by the Commission’s new policies. As noted above, this may include the necessity of a formal training program for an employer’s recruiters around the employer’s obligations under the Code with respect to recruitment and records of offences. Particular emphasis should be placed on considering how much information the employer actually needs to properly assess the suitability of a candidate and whether a police record check is actually necessary. Even if a police record check is required, as it is under the Education Act and the Ontario College of Teachers Act, 1996, employers must separately assess whether it is a legitimate and bona fide requirement that the report include information about the candidate pursuant to the MHA.
The new rules also emphasize the need for employers to make offers of employment conditional on the successful completion and disclosure of criminal background inquiries. While a conditional offer of employment is encouraged before asking any candidate to submit to a background inquiry, the fact that the Police Service will no longer advise an employer of the results of a police record check, or even that there is relevant information on file, highlights the need for employers to ensure that offers of employment are conditional on actually receiving a full copy of the report from the employee.