Reforms to the police reference checks will become effective on November 1, 2018. Prior to the enactment of this statute, this issue has been a complex one, often leading to unfair and unexpected consequences.
The Need for Reform
It has been the practice of the police in the province to record contacts with innocent persons, even where no charges have been laid. This could include cases in which charges were commenced but later dropped by the Crown Attorney or “stayed” by a judge. It could also include investigative notes due to allegations which did not result in the commencement of a criminal case. These records could also show 911 calls made to the police by persons in emotional distress or in a suicidal state, or where persons are the victim of criminal conduct or a witness to it. Also included are details of any “carding” incidents, which tend to be racially biased. The decision of what information to record and then to be released by a police records search has not been a provincial standard. This decision of what to release has been one of policy determined by each local police force.
The New Law
These factors have led to this new statute. Employers seeking a criminal records check will no longer be given access to information about mental health orders or non-conviction records, except in limited circumstances. Employees will also have more control over the process of the release of such information to a potential employer.
The new law considers three types of police records checks. The rules for disclosure are more lenient where the public need to know is enhanced. The three classifications are (1) criminal records checks, (2) criminal record and judicial matter checks, and (3) vulnerable sector checks.
All three form of police record checks will require the consent of the individual to the specific type of check requested. Generally speaking, non-conviction details will not be provided, except to a vulnerable sector check and even then, there are specific criteria for such exceptional disclosure. One such example may be where the alleged victim was a child and the employment opportunity is related to work involving children.
The results of the check must be disclosed initially only to the individual in question. That person may then decide whether or not to release the results to the prospective employer. Once so disclosed, these results must be used by this recipient only for the purpose for which they were requested.
Some of the details are as follows:
1. Request for record of criminal offence for which there has been no pardon:
For all three types of requests, these must be disclosed, except a summary conviction offence where more than 5 years have past.
2. Request for record of criminal offence where there has been an absolute discharge granted:
For (1) no disclosure is required. For (2) and (3), disclosure is required except where one year has passed after the date of the absolute discharge.
3. Request for record of criminal offence where there has been a conditional discharge granted:
Save as above, save the time period for (2) and (3) is three years from the date of the conditional discharge.
4. Request for criminal records where the person was found not criminally responsible due to a mental disorder:
No disclosure for (1) and (2) but required for (3) except where 5 years have passed from the date of the finding.
5. Request for every court order made against the person:
Not required for (1). For (2) and (3) no disclosure for court orders made under the Mental Health Act or court orders with respect to a charge which has been withdrawn, nor restraining orders made with respect to matrimonial or child issues.
6. Request for non-conviction information:
For (1) and (2) no disclosure is required. For (3) disclosure may be allowed in exceptional circumstances.
7. Request for records of a conviction for which a pardon has been granted:
For all matters, disclosure is not required, save in exceptional circumstances.
Human Rights Considerations
Ontario’s Human Rights Act protects individuals who have been found guilty of a criminal act and subsequently pardoned. The same law denies adverse treatment in employment due to a conviction of a provincial offence, such as a speeding or similar issue.
The Act does not address criminal charges which have resulted in an acquittal (i.e a finding that a person is not guilty). Case law in British Columbia, interpreted similar legislation and concluded that it would not make sense to protect a person found to be guilty (and later pardoned), but expose a person who had been found not guilty to adverse treatment. For that reason, a “criminal conviction” was also read to include a criminal charge which resulted in an acquittal. It has been expected that the same interpretation would apply to Ontario law.
Proposed Reform to Human Rights Code
A revision has now been proposed to the Human Rights Act, Bill 164 The Human Rights Code Amendment Act. This bill passed second reading in October of 2017. If made into law, this will create substantive amendments to the law.
The proposed Bill seeks to create a new protected right of “police records” which includes any pending charge, any conviction (even where there has been no pardon) and any details of police involvement, including any “non-criminal contact” with police. This would thus prevent an employer from using in its decision-making process any prior criminal convictions an employee may have. It is expected that there will be further amendments to the proposed law, at the very least for situations involving the employment of people in trusted and sensitive positions such as teachers, coaches, or the care of the elderly.
Lessons for All
Employers must understand what information may be obtained and also the limits of the use of this information.
Employees should be knowledgeable about the type of information which must be revealed and that they have the right to see the results of the search prior to disclosure.
It is expected that the request for a criminal records search would be one made in the course of an employment application or a request for a promotion. Employers likely are not able to insist on such a records check during the course of active employment. That latter issue is one of employment law, not the statute.
Get Advice and Know Your Rights
Whether you be employer or employee, it is important to know the law and your rights and remedies. This issue is particularly complex. For advice on this issue from either side, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.
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