Police checks in Ontario – what you need to know

One leading employment lawyer explains the recent changes and offers his expert advice.

For many employers, police record checks are part of the application process for new employees.  For those employers asking for a Criminal Record Check, this has always been a fairly cursory process. 

However, for those employers who do work with clients in the vulnerable sector (e.g. child care, assisted living), the more involved – and more intrusive – Vulnerable Sector Check is often contentious.  This is due to the fact that, in Ontario, the Vulnerable Sector Check has allowed the police to disclose a much broader array of “non-conviction” information; that information could be – and, at times, was – used by employers to disqualify otherwise qualified applicants from employment.  One of the largest issues centered around the mental health information that these particular checks disclosed, and in particular the potential for improper discrimination on that basis, contrary to Ontario’s Human Rights Code.

In an effort to address this issue, and to bring a standardized way of approaching the broader “police record check” requirements across the province, in December, 2015 the Ontario Legislature passed the Police Record Checks Reform Act, 2015 (the “Act”).  Prior to the passing of the Act, each police service had its own criteria and its own manner of handling the various types of police check requests, a haphazard system that meant for different treatment of individuals based on where they lived.  For employers, this often led to disputes as to why some employees were subject to stricter conditions than others.

Now, the Act sets out a process governing requests for searches of the Canadian Police Information Centre databases, or other police databases, in connection with screening an individual for certain purposes, including employment.  Not only does the Act specify the manner in which anyone requesting a police record check must request that check, but also sets out how a police record check provider must respond to any such request. 
There are three types of police record checks that police forces can conduct under the Act:
  1. Criminal Record Checks;
  2. Criminal Record and Judicial Matters Checks; and
  3. Vulnerable Sector Checks.
The Schedule to the Act (reproduced here) sets out the type of information that is authorized for disclosure for each type of police record check, but essentially each successive level of “check” authorizes the disclosure of a bit more information, as set out below.

Criminal Record Checks: A criminal record check may disclose all criminal convictions for which a pardon has not been issued or granted, with the exception of summary convictions (if the request has been made five years after the conviction date) and findings of guilt under the Youth Criminal Justice Act.

Criminal Record and Judicial Matters Checks: In addition to the above, a criminal record and judicial matters check may disclose absolute discharges that have occurred within one year of the request, conditional discharges within three years of the request, and some court orders made against the individual: however, court orders made under the Mental Health Act and court orders made in relation to a charge that has been withdrawn are specifically not disclosed.

Vulnerable Sector Checks:  In addition to the above, further information may be provided with respect to vulnerable sector checks; however, non-conviction information may only be disclosed if specific criteria for “exceptional disclosure” are met.  These criteria are focused on ensuring that the information is relevant and/or applicable to the vulnerable sector and/or the purpose for which the check is being requested.  This restriction is intended to specifically address the previous concerns with respect to the broad scope of information that was previously being disclosed under the Vulnerable Sector Checks.

While this legislation should make the administration of the police record check process much easier for employers, at the end of the day those employers who require Vulnerable Sector Checks will still be obligated to balance and assess any information they receive against the duty to accommodate under Ontario’s Human Rights Code

The lawyers at CCPartners can help you navigate this particularly difficult topic, whether at the recruitment/hiring stage or in dealing with existing employees.

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