Police Record Check Reform Act, 2015: What it means for charities in Ontario

Authored by Nevena Urosevic, Associate Director of Legal Affairs

On December 1, 2015, the Ontario government unanimously enacted the Police Record Checks Reform Act, 2015  (the “Act”), also known as Bill 113. While the Act is not yet in force, it is expected that the in force date will be announced shortly. The Act circumscribes and standardizes the information which may legally be disclosed in record checks. Police record checks are frequently used as a method for screening individuals seeking a work or volunteer position with a charity. Many charities work with vulnerable individuals and want to make sure their employees and volunteers are fit for the position. Furthermore, charities are generally held responsible for any wrongdoing on the part of their employees or volunteers when such wrongdoing is linked to the position.[1] This is another reason why charities resort to police record checks: they want to avoid the liability that may result from the criminal tendencies of potential applicants. Nonetheless, due to a long-standing public concern over the breadth and inconsistency of information provided in police record checks, the Ontario government, through the Act, seeks to limit such things as the disclosure of non-conviction and mental health information.

Essentially, the Act creates and authorizes only three types of police record checks:

  1. Criminal Record Check – A criminal record check would permit the disclosure of every criminal offence of which an individual has been convicted for which a pardon has not been issued or granted. It would not, however, permit disclosure of any court orders made against the individual, or criminal offences for which there is an outstanding charge or warrant to arrest.
  2. Criminal Record and Judicial Matters Check – This record check allows for more disclosure. It permits not only the disclosure of every criminal offence of which an individual has been convicted for which a pardon has not been issued or granted, but also the disclosure of court orders made against the individual and criminal offences for which there is an outstanding charge or warrant to arrest. However, it would not permit disclosure of any criminal offence for which the individual has been charged that resulted in a finding of not criminally responsible on account of a mental disorder.
  3. Vulnerable Sector Check – Of all the three types of record checks, this one would permit the most disclosure. The vulnerable sector check would permit disclosure of all types of information outlined in Appendix A (below), with narrow exceptions. However, the vulnerable sector check would not permit disclosure of any conviction for which a pardon has been granted. In exceptional circumstances, non-conviction information about an individual may be disclosed. The following conditions must be met:
  • the criminal charge to which the information relates is specified by a regulation (yet to be released)
  • the alleged victim was a child or other vulnerable person
  • the police record check provider determines that the individual has engaged in a pattern of predation that presents a risk of harm to a child or a vulnerable person by considering a number of specified factors

If non-conviction information is included in the record, the individual may request a reconsideration of the disclosure.

According to the Act, record checks can only be released to third parties with the consent of the individual to which the information relates, thereby providing such individuals with an opportunity to review the results of the check before allowing access to a requesting third party. It also prevents the disclosure of information relating to other police interactions, such as being questioned in relation to a crime, information obtained from “carding,” and mental health interactions, such as suicide attempts.

Finally, organizations that willfully contravene certain provisions of the Act would be guilty of an offence and liable to a fine of not more than $5,000. Charities should be aware of the potential changes so that they can work with the new system, if implemented, to ensure the safety of those they serve and the integrity and dignity of those they are hiring.

Appendix “A”

AUTHORIZED DISCLOSURE

 

Item Type of Information Criminal record check Criminal record and judicial matters check Vulnerable sector check
1. Every criminal offence of which the individual has been convicted for which a pardon has not been issued or granted. Disclose.

However, do not disclose summary convictions if the request is made more than five years after the date of the summary conviction.

Disclose.

However, do not disclose summary convictions if the request is made more than five years after the date of the summary conviction.

Disclose.

However, do not disclose summary convictions if the request is made more than five years after the date of the summary conviction.

2. Every finding of guilt under the Youth Criminal Justice Act (Canada) in respect of the individual during the applicable period of access under that Act. Disclose. Disclose. Disclose.
3. Every criminal offence of which the individual has been found guilty and received an absolute discharge. Do not disclose. Disclose.

However, do not disclose if the request is made more than one year after the date of the absolute discharge.

Disclose.

However, do not disclose if the request is made more than one year after the date of the absolute discharge.

4. Every criminal offence of which the individual has been found guilty and received a conditional discharge on conditions set out in a probation order. Do not disclose. Disclose.

However, do not disclose if the request is made more than three years after the date of the conditional discharge.

Disclose.

However, do not disclose if the request is made more than three years after the date of the conditional discharge.

5. Every criminal offence for which there is an outstanding charge or warrant to arrest in respect of the individual. Do not disclose. Disclose. Disclose.
6. Every court order made against the individual. Do not disclose. Disclose.

However, do not disclose court orders made under the Mental Health Act or under Part XX.1 of the Criminal Code (Canada).

Do not disclose court orders made in relation to a charge that has been withdrawn.

Do not disclose restraining orders made against the individual under the Family Law Act, the Children’s Law Reform Act or the Child and Family Services Act.

Disclose.

However, do not disclose court orders made under the Mental Health Act or under Part XX.1 of the Criminal Code (Canada).

Do not disclose court orders made in relation to a charge that has been withdrawn.

Do not disclose restraining orders made against the individual under the Family Law Act, the Children’s Law Reform Act or the Child and Family Services Act.

7. Every criminal offence with which the individual has been charged that resulted in a finding of not criminally responsible on account of mental disorder. Do not disclose. Do not disclose. Disclose.

However, do not disclose if the request is made more than five years after the date of the finding or if the individual received an absolute discharge.

8. Any conviction for which a pardon has been granted. Do not disclose unless disclosure is authorized under the Criminal Records Act (Canada). Do not disclose unless disclosure is authorized under the Criminal Records Act (Canada). Do not disclose unless disclosure is authorized under the Criminal Records Act (Canada).
9. Any non-conviction information authorized for exceptional disclosure in accordance with section 10. Do not disclose. Do not disclose. Disclose.

Set out the information in the prescribed form (if applicable).

References:

[1] The legal term is vicarious liability. It stands for the proposition that an organization is responsible for the deeds of their employees/volunteers in the course of their services for the organization.

Noteworthy is provided for general information purposes and does not constitute legal or professional advice. Every organization’s circumstances are unique. Before acting on the basis of information contained in this blog, readers should consult with a qualified lawyer for advice specific to their situation.