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How New Rules for Police Record Checks Affect Ontario Employers

OVERVIEW

On Nov. 1, 2018, Bill 113, the Police Record Checks Reform Act, 2015, came into force in Ontario. Among other things, Bill 113 (the Act) standardizes the process for conducting police record checks, including checks requested by employers when screening an individual for employment purposes. The Act also limits the type of information that may be disclosed in response to a check.

These new changes could have a direct effect on employers, so it’s important to have a basic understanding of the Act.

BILL 113’s IMPACT ON POLICE RECORD CHECKS

As previously mentioned, Bill 113 looks to standardize how police record checks are performed. To accomplish this, the Act:

  • Outlines and defines three types of record checks—Under Bill 113, police officials may conduct three types of police record checks:
    • Criminal record checks (includes applicable criminal convictions and findings of guilt under the federal Youth Criminal Justice Act)
    • Criminal record and judicial matters checks (includes applicable criminal convictions and findings of guilt under the federal Youth Criminal Justice Act, absolute and conditional discharges, outstanding charges, arrest warrants and certain judicial orders)
    • Vulnerable sector checks (includes information disclosed in a criminal record and judicial matters check, applicable findings of not criminally responsible due to a mental disorder, record suspensions related to sexually based offences and non-conviction-related information when a strict test is met)
  • Requires consent before a check can be conducted—In order for a record check to occur under Bill 113, record check providers must receive written consent from the individual the record check pertains to:
  1. Before the check is conducted; and
  2. Before the record check provider discloses information authorized for disclosure by the Act to the requesting organization or person
  • Specifies the type of information that can be disclosed in a record check—Bill 113 allows for the disclosure of certain types of information in relation to each type of check. However, Bill 113 only permits the disclosure of non-conviction information in response to a vulnerable sector check, provided the information satisfies the prescribed criteria for “exceptional disclosure.” Non-conviction information refers to details in instances where an individual was charged with a criminal offence, but the charge was dismissed, withdrawn, or resulted in a stay of proceedings or an acquittal. In the past, when potential employers carried out a police record check, they could receive a variety of non-conviction information, such as records of mental health detentions, complaints where charges were never laid, withdrawn charges and acquittals. This is no longer the case.
  • Limits the use of information—Bill 113 prevents individuals and organizations from disclosing the results of a check. However, information may be disclosed should it be requested or authorized by law.

CONSIDERATIONS FOR EMPLOYERS

Employers need to ensure that policies and procedures related to police record checks are in accordance with the new, standardized process. Of all the changes made by Bill 113, the following are the most noteworthy for employers:

  • Employers will no longer be able to obtain non-conviction information, unless the employer conducts a vulnerable sector check and the criteria for exceptional disclosure has been met.
  • Employers may not use or disclose the results of the check, unless it is requested or authorized by law.
  • Individuals being screened will be able to control the type of information disclosed.
  • Written consent for checks must specify the type of check that the individual is consenting to.
  • If a police record check is necessary, an employer will need to prepare for potential delays in obtaining the required information during the recruitment process.
  • Employers must take their Human Rights Code obligations into consideration when requesting or performing police record checks.

To learn more about Bill 113, employers should visit the government’s official page on police record checks.

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