Late this Spring, the Toronto Police Services Board and the Ontario Human Rights Commission each released new policies and procedures dealing with the process for obtaining police reference 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 candidates who are asked to consent to police reference or criminal background checks prior to employment. Together, these developments have clarified what kind of criminal background information employers can request from employee candidates and what can be done with the results of those inquiries.
Police Reference vs. Criminal Records Checks What is the Difference?
Many employers require that candidates for employment (and, in some cases, volunteers) submit to criminal background checks, prior to hiring or starting work. 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”) does prohibit 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
As a result, in most cases, it is possible for an employer in Ontario to refuse employment to a candidate who has criminal convictions for which a pardon has not been granted. Indeed, in Ontario, a candidate who does have an unpardoned criminal record can sometimes be refused employment on the basis of that record, even where the criminal record is not relevant to the job the candidate has applied to do.
There are, however, 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, organizations or agencies “responsible for the well-being of one or more children or vulnerable persons” (employers or agencies in the “vulnerable sector”).2 These are known as vulnerable sector screens or vulnerable persons searches. Such searches are conducted pursuant to section 6.3(2) of the Criminal Records Act (“CRA”).3 Vulnerable sector screens provide information about persons who have received a pardon for a sexual offence.
In addition to criminal records searches and vulnerable sector screens, most police services agencies can also conduct police reference 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
Accordingly, in Toronto, employers and agencies engaged in the vulnerable sector can request candidates to consent to police reference checks, prior to commencing employment. In fact, the Toronto Police Service (“the Police Service”) has relationships with approximately 2600 agencies and employers to conduct this type of inquiry.
Recent Changes to the Procedures for Obtaining Police Reference Checks.
The Police Service has recently amended the process by which agencies and employers in the vulnerable sector can obtain police reference checks. The changes now require an employer to specifically request, and to justify, its need for information about the candidate’s apprehensions, if any, under the Mental Health Act6 (the “MHA”). Without such a specific request or justification, MHA information about a candidate contained in the police files will be suppressed.7
In addition, each employer or agency who wants a candidate to submit to a police reference check must have, or apply for, a Memorandum of Understanding with the Police Service and must complete a Certification of Compliance. The compliance certificate certifies, 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 Code and the Agency’s obligation thereunder with respect to recruitment;
(iii) 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;
(iv) the Agency/Employer has extended a conditional offer of employment for the position to the applicant;
(v) 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 reference check program.
Although agencies and employers who request candidates to submit to a police reference check must have a Memorandum of Understanding with the Police Service before such a check can be ordered, police reference checks can only be authorized by the individual applicant him or herself. Similarly, the results of such searches are now only provided to the applicants themselves. Accordingly, employers/agencies in the vulnerable sector will no longer be provided copies of the result of the reference check by the Police Service and must seek that information, or copies of the report, from the applicants themselves.
The changes to the Police Service’s procedure for conducting police reference checks 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 Checks.10 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 Reference 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 and organizations in the vulnerable sector must give particular thought to whether or not they need MHA information to assess the candidate’s suitability and be prepared to justify any request for any such information.
For agencies and employers outside of Toronto, the above considerations are equally relevant, however the specific procedure by which an employer or employee can request that a police record check can be performed may vary. Employers are encouraged to consult with their local or regional police service for more information.
For employers outside the vulnerable sector, one of the good news results of the recent focus on police reference 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 Ontario Human Rights Tribunal, 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, particularly in that case, 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 reference check in relation to prospective employment as a counsellor with various group homes. As a result of the police reference 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 reference check, there had been no violation of either statute.
For employers generally, the recent discussions, caselaw and policy publications respecting police reference checks are relevant in several ways: (i) they have confirmed that criminal background inquiries relating to unpardoned criminal offences are entirely legitimate and employers can request and rely upon an applicant’s criminal history when assessing suitability for employment (or for a volunteer opportunity); (ii) the Code only protects candidates for employment from discrimination on the basis of their record of offences if the would-be employer relies on pardoned criminal convictions, or provincial offences. There is no Code-based protection for unpardoned convictions, or for criminal charges, pending or otherwise; and (iii) police reference (or record) checks are distinct from criminal background checks and employers will need to justify, by providing evidence of a bona fide occupational requirement, if they insist upon a candidate’s consent to a police reference check, prior to, or during, employment. In accordance with recent policies issued by the Toronto Police Service and the Ontario Human Rights Commission, it is likely only to be employers engaged in the vulnerable sector that are going to be successful in proving that such a bona fide requirement exists.
For employers in the vulnerable sector, it is crucial that those persons involved in recruitment, and specifically those who are involved in requesting or assessing criminal background and police reference check information, read, understand and follow closely the policies of the Toronto Police Service and the Commission. 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 reference check is actually necessary. Even if a police reference check is required, 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 agency or employer of the results of a police reference 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. Wording to the effect that the offer is conditional on the successful completion of a police reference check may not be sufficient.