New "checks" on criminal record checks

On Nov. 1, 2018, new "checks" on the police record check system will be in force under Ontario's Police Record Checks Reform Act.  Organizations that rely upon police record checks as a method of determining suitability for employment or volunteer work will want to review related policies and procedures for the purposes of compliance.

The new Act introduces a framework of limited disclosure, which is more akin to the philosophy of "what you need to know", instead of "everything but the kitchen sink". For instance, under the new regime, only vulnerable sector checks meeting the threshold for exceptional disclosure would yield mental health and non-conviction information. Non-conviction information means information concerning the fact that an individual was charged with a criminal offence if the charge was dismissed, withdrawn or stayed, or resulted in a stay of proceedings or an acquittal. Before the new regime, a routine police record check could have yielded information relating to mental health detentions or even non-conviction information.

Takeaways:

Employers should take note of some of the following considerations in light of the new legislation:

• Consent to Conduct the Check: The Act prohibits a record check provider from conducting a record check without the subject's written consent to the particular check;
• Disclosure of Information: The Act prohibits a record check provider from disclosing information to any other person than the subject of the check, unless consent is obtained. Under the new regime, an added layer of consent is required. For instance, the subject of the check must now first receive the results and then consent to the disclosure to a third party, such as an employer.
• Limited Disclosure: Without a vulnerable sector check that satisfies the criteria for exceptional disclosure, employers will no longer be able to obtain non-conviction information.
• Use of Information: A person or organization that receives information from a record check provider, with the subject's consent, is prohibited from using or disclosing it except for the purpose for which it was requested or as authorized by law.

For all questions related to employer-side employment law, including police record checks, the Gowling WLG Employment, Labour & Equities Group would be pleased to assist.