On November 1, 2018, the Police Record Checks Reform Act, 2015 (Ontario) came into force with little fanfare.
There was a last-minute change that has important procedural implications and limits the situations in which “double consent” is required from the individual that is the subject of the police record check.
This is good news for the background checking industry and will avoid a process that would have led to delays, particularly for individuals for whom the police record check might be the last hurdle to be hired by a prospective employer.
About the Police Record Checks Reform Act
The Police Record Checks Reform Act restricts the types of criminal records checks that are lawful in Ontario and the types of information that may lawfully be disclosed.
The legislation was enacted, in part, to combat the practice of some police departments revealing non-conviction records in the course of responding to requests for a background check. Non-conviction information might include interactions with police that did not lead to any criminal charges, including, for example, mental health distress calls.
In addition, the law was enacted to limit disclosure of “old” conviction records for summary convictions or convictions that resulted in absolute or conditional discharges.
The legislation creates a standardized approach to police record checks using three categories:
Criminal record check: this check will return a report on criminal convictions under the Criminal Code and other federal laws, as well as convictions under the Youth Criminal Justice Act. Summary convictions will not be reported if the conviction was more than 5 years before the criminal records check request. Convictions resulting absolute or conditional discharges would not be reported.
Criminal record and judicial matters check: this check will return all the information under a criminal record check plus information on absolute and conditional discharges, outstanding charges, arrest warrants and some types of court orders (judicial matters). Convictions with absolute discharges will not be reported if they are more than 1 year old. Conditional discharges will not be disclosed if they are more than 3 years old.
Vulnerable sector check: this check will return all of the information under a criminal record and judicial matters check as well as some non-conviction information. Non-conviction information will only be disclosed for specified offences if certain criteria are met. The criteria include a requirement that the victim was a child or vulnerable person and the police record check provider has reasonable grounds to believe that the individual has engaged in a pattern of predation that indicates that the person presents a risk of harm to a child or a vulnerable person. An individual can apply for a reconsideration of a determination to release non-conviction information.
Double Consent Model
The Police Record Checks Reform Act requires that the individual has given written consent to the police record check. Section 12 of the legislation was problematic for the background checking industry when it was enacted. This section requires that the police record check results must first be provided to the individual who is the subject of the request. Once the individual saw the results, the individual could then consent to the results being shared with a third-party such as a prospective employer.
Although the intent was to provide greater control to the individual, this double-consent was going to be cumbersome. It was also arguably unnecessary given the process generally used by employers and other organizations obtain criminal record checks through third-party background check providers. The typical form that a prospective employee would fill out would ask the prospective employee whether the employee had any past criminal convictions and to identify the type of criminal conviction. The police services then report on whether the self-declared information matches the information in the police records. The effect of the legislation would add an intermediary step of a second consent from the individual (even if the information matched) and would slow the process. This would inevitably lengthen the time required to hire employees.
The Ontario Government has fixed the double-consent issue by using its regulatory power to create an exemption under Ontario Regulation 347/18, s. 21.1.
Police record check providers are now exempt from the consent requirements in section 12 of the Act so long as:
- the check is not a vulnerable sector check
- the individual self-declares their criminal conviction history for the purpose of obtaining the check
- the individual has provided written consent to conduct the check and to disclose the results to specified third parties
A police record check under s. 21.1 of O. Reg. 347/18 will be limited to a report from the police service that:
- the self-declaration of no criminal convictions matches; or
- the self-declaration of criminal convictions matches;
- the self-declaration does not match
- there is a clear result or not clear result for judicial matters (certain types of court orders)
The result is a reasonable compromise. No substantive information is provided to the prospective employer or other person requesting the background check other than a report on whether the self-disclosed information about criminal convictions matches what is on file and whether the individual is subject to court orders.