October 26, 2018

Reminder: Reforms to Police Record Checks Coming into Force on November 1, 2018

The Police Record Checks Reform Act, 2015 (“Act”), which was passed in December 2015, will become law on November 1, 2018. The Act will standardize the request and disclosure procedure for police record checks, and limit the type of information that can be released in order to prevent the disclosure of unnecessary information. Specifically, the Act will limit how police record checks can be requested, how a police service is to respond, as well as the proper scope and manner of disclosure.

The Act will apply to employers who require a police record check to determine suitability for employment. Employers requesting criminal record checks will no longer be provided with information about mental health orders or non-conviction records, except in limited circumstances, and employees will have more control over the process of the release of information to a potential employer.

Police Record Checks Reform Act, 2015

  1. There will be three types of police record checks (s. 8(1)) (see the table below regarding authorized disclosure for each type of check):
    • Criminal record checks;
    • Criminal record and judicial matter checks; and
    • Vulnerable sector checks.
  2. A police record check in respect of an individual will not be conducted unless the request contains the individual’s written consent to the particular type of check (s. 8(3)).
  3. Non-conviction information in response to a vulnerable sector check request will only be provided if specific criteria for exceptional disclosure is met (e.g., the alleged victim was a child, etc.) (s. 10).
  4. The results of a police record check must only be disclosed to the individual who is the subject of the request (s. 12(1)). If the individual provides written consent after receiving the results of a check about himself or herself, the results may be provided to another person or organization (s. 12(2)).
  5. The results of a police check that are provided to a person or organization with the individual’s consent under s. 12(2) must only be used or disclosed for the purpose for which it was requested or as authorized by law (s. 13).
  6. Any person or organization that wilfully contravenes the Act is guilty of an offence (s. 19(1)). A person convicted of an offence may be fined up to $5,000 (s. 19(2)).

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).

LEGAL DISCLAIMER: This article is for informational purposes only and is not intended to provide legal advice, which in all circumstances must be tailored to the specific facts of any problem. You should obtain a proper legal consultation in order to determine how this article applies to your specific situation.
Please feel free to contact Israel Foulon LLP to learn more at 416-640-1550.

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