March 17, 2016 By: Jim Anstey
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After years of calls to address the inconsistent and often maligned approach of Ontario police services when it comes to issuing police record checks (“PRCs”), the Ontario legislature finally tackled this important issue last year with the passage of Bill 113 – An Act respecting police record checks. Bill 113 became law in December and will be proclaimed into force in the near future. The legislation goes a long way in standardizing the process for requesting PRCs, protecting individual privacy rights and helping to avoid discrimination under the Human Rights Code.

To understand why this legislation is needed, it is important to understand the nature of the information police services possess. In addition to records about offences for which an individual has been convicted, police services databases contain information about charges that were laid but later dropped (probably for want of evidence) and charges that remain outstanding (the individual’s innocence or guilt has not yet been decided by the court). In addition, complaints made against an individual for which charges have not been laid appear in these databases.

Aside from offences, police services retain information for other reasons as well. In particular, they record interactions with individuals for the purpose of carrying out their duties under the Mental Health Act. Typically, the assistance of a police service is requested when healthcare providers or the family of a mental health patient can no longer ensure the individual’s compliance with the treatment plan or becomes a risk to himself / herself or others. As well, an individual’s name may appear in a police services database because the individual was a witness or potential witness with respect to an investigation (though never a suspect).

Historically, police services have responded to requests for PRCs inconsistently, and have typically disclosed much more information than necessary. In more recent years, after outcries from organizations concerned with privacy and human rights, some police services have developed policies to govern this exercise; however, the result remains less than ideal and the policies in place differ significantly from one police service to another.

The result of the hodgepodge of inadequate PRC policies in our police services has had real consequences in the employment context. Individuals have been left to wonder if they have missed out on a new employment opportunity or promotion because of something disclosed in a PRC. For example, an individual may have been charged with theft many years ago but later acquitted or the charges may have been dropped. A potential employer may see a risk in hiring that individual and pick another candidate with a “clean” PRC. Likewise, an employer may assume that a candidate questioned in an investigation about illegal drug possession (where the candidate was not a suspect) associates with people who consume illegal drugs, leading to the candidate’s removal from contention.

Bill 113, which applies to all police services in Ontario, will largely remedy this situation. The information that a police service will be able to disclose on a standard PRC, called a “criminal record check”, will be limited to instances where the individual has been convicted of a criminal offence but has not been granted a pardon. However, summary convictions (for less serious offences) that are more than five years old cannot be disclosed. Findings of guilt under the Youth Criminal Justice Act (i.e. offences committed while a minor) are also to be disclosed.

Aside from standard criminal record checks, Bill 113 provides for situations where the disclosure of more sensitive information about an individual in a police service’s database may be disclosed. For example, a police service responding to a request for a “vulnerable sector check” will be permitted to disclose information about outstanding charges, convictions for which absolute and conditional discharges were granted, and potentially “non-conviction information” (where charges were dropped, stayed or an acquittal granted) if certain criteria are met. This type of disclosure is aimed specifically at protecting children, the elderly and the disabled.

Aside from limiting the kind of information that can be disclosed in a PRC, the Bill 113 framework will be beneficial in the following ways:

  • The legislation clearly provides that the individual who is the subject of the PRC must provide his/her consent. Importantly, obtaining a PRC is a two-stage process. The results of the PRC are provided initially to, and only to, the individual who is the subject of the PRC. The individual can then determine if the PRC is in compliance with Bill 113 and decide if he/she further consents to the disclosure of the information to the organization requesting the PRC.
  • Police services must put in place a mechanism for individuals to seek the correction of the records a police service holds about them. Presumably, the individual will have the opportunity to request a correction after receiving the initial PRC but before providing consent to disclose the PRC to the requesting organization.
  • Persons or entities (e.g. employers) that receive PRCs are specifically prohibited from using or further disclosing the information contained in a PRC.
  • It is an offence to contravene the new legislation, including the duties of employers, as described in the previous paragraph. Fines of up to $5,000 can be levied.

Bill 113 was long overdue and appears to go a good way in addressing the concerns of privacy and human rights advocates. While much of the detail about the framework for requesting and responding to PRCs will be determined by government regulations, the parameters put in place by the legislature appear to deal adequately with those concerns. Furthermore, while this blog post is concerned with employment relationships, Bill 113 will apply to PRCs in other contexts as well, including those seeking volunteer positions and individuals seeking a licence (e.g. a professional licence).

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law