On December 1, 2015, the province of Ontario passed the Police Record Checks Reform Act, 2015 (“PRCRA”), which is intended to uphold public safety in conjunction with respecting privacy and removing barriers that individuals may face when inappropriate information is disclosed in police record checks. The Act will come into effect on November 1, 2018.
The legislation will limit police disclosure of “non-conviction records”, allegations found in police computers that were never proven and 911 mental health calls that police attended.
This legislation was drafted in response to the Toronto Star’s “Presumed Guilty Investigation” in 2014 that exposed that tens of thousands of Canadians have records in police databases despite never having been convicted of a crime. The investigation found that the disclosure of these records has damaged careers, squashed ambitions and limited international travel.
According to research from the Canadian Civil Liberties Association, one in three Canadians have some form of non-conviction information found on police computers. Police record checks disproportionately affect people who have more contact with the police, such as those individuals living in poverty or those with mental health or developmental disabilities.
Marie-France Lalonde, the Minister of Community Safety and Correctional Services, commented on the new legislation:
People in Ontario must not lose out on opportunities because of an inappropriate disclosure of non-criminal information. It is also vitally important that we have an up-to-date, rigorous record checks process that ensures that employers have access to appropriate information. …Once in force, this legislation will bring down barriers to opportunity and will help people across Ontario become more involved in their community.
WHAT IS A POLICE RECORD?
Police records originate from interactions with local police service related to both criminal and non-criminal matters. These interactions may include:
- An individual providing their name through informal contact with a police officer;
- An individual calling 911 or was present when the police officers responded to the call;
- An individual calling 911 for themselves or someone they know was experiencing a mental health crisis;
- An individual was involved in a police investigation as a witness, victim or suspect;
- An individual was arrested;
- An individual was charged with a criminal offence, but was not convicted;
- An individual was found guilty of a criminal offence; or
- An individual was convicted of a criminal offence.
WHAT IS A POLICE RECORD CHECK?
A police record check occurs when a search is performed in police databases regarding a particular individual. This “check” can be prompted to evaluate the suitability of an individual for a particular purpose, such as employment at a specific job, volunteer work, application for educational programs, adoption, immigration, or foreign travel.
As it stands today, information searched as part of a police record check can range from convictions to findings of guilty of non-convictions (i.e. an offender is found guilty of a particular offence, but made without conviction) and non-criminal information (i.e. when a person has an interaction with police, but is not charged).
WHAT ARE THE TYPES OF POLICE RECORD CHECKS?
There are three types of police record checks that are clearly defined in the PRCRA.
They are as follows:
- Criminal Record Checks;
- Criminal Record and Judicial Matter Checks; and
- Vulnerable Sector Checks.
A Criminal Records Check is a search of the RCMP databases and is usually required for bylaw licences, employment or immigration purposes. This type of screening will include information regarding criminal convictions and findings of guilt under the Youth Criminal Justice Act within the applicable disclosure period.
A Criminal Record and Judicial Matter Check is the most comprehensive type of police screening. This check includes information regarding convictions, outstanding warrants, charges and judicial orders available from a local police agency’s records. This screening is intended for applicants seeking volunteer or employment from organizations that require a criminal record check, but it is not intended for those seeking to work or volunteer with vulnerable persons.
A Vulnerable Sector Check screens individuals who are pursuing employment or volunteer opportunities with vulnerable people. A vulnerable person is defined as a person who, because of their age, disability, or other circumstances, are in a position of dependence on others or are at a greater risk than the general population of being harmed by a person in a position of authority or trust. Some of the positions that will require a Vulnerable Sector Check include teachers, social workers, taxi drivers, daycare workers, adoptive parents and sport coaches.
THE JOHN HOWARD SOCIETY OF ONTARIO REPORT
The John Howard Society of Ontario (“JHS”) is a criminal justice organization working to deliver services to those in conflict with the law and at risk throughout Ontario.
The JHS conducted in-depth surveys and interviews with employers and individuals with police records to empirically capture the negative effects of police records on employment.
The JHS report entitled “The Invisible Burden” concludes that a large number of Canadians have some form of police record, particularly Torontonians. These records are frequently requested by employers, and likely effect employer hiring practices and employment outcomes. Most importantly, police records disproportionately affect racialized, marginalized and other vulnerable populations.
Requiring a police records check is often part of an organization’s policy. According to their research, the JHS found that 60% of employers required police background checks for all new employees.
The JHS report offered various recommendations to balance employer interests and the need for an inclusive approach for people who need to gain employment. The JHS is a strong advocate of the new PRCRA as a means to standardize police records checks across the province.
If you have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.