The Ontario Government has passed legislation which imposes new restrictions on criminal record checks. All employers that rely on such checks should take note.
Bill 113, An Act Respecting Police Records Checks restricts the type of information that can be disclosed in criminal records checks for various purposes, including screening of job applicants, volunteers and employees. It also creates a uniform approach for how police records checks are requested and disclosed and how the information may be used.
Prior to Bill 113, criminal record checks could disclose non-conviction information, including mental health information, about the individual. Due to concerns arising out of this overly broad disclosure, including human rights issues, Bill 113 was introduced. Bill 113 sets out what information may be obtained under three categories of criminal record checks:
- Criminal Record Checks: A criminal record check may disclose all criminal convictions for which a pardon has not been issued or granted, with the exception of summary convictions (if the request has been made five years after the conviction date) and findings of guilt under the Youth Criminal Justice Act.
- Criminal Record and Judicial Matters Checks: In addition to the above, a criminal record and judicial matters check may disclose absolute discharges (if the request is made within one year), conditional discharges (if the request is made within three years), and court orders made against the individual with some exceptions, such as court orders made under the Mental Health Act and court orders made in relation to a charge that has been withdrawn.
- Vulnerable Sector Checks: Further information may be provided with respect to vulnerable sector checks; however, restrictions still apply. For instance, non-conviction information may be disclosed if specific criteria for “exceptional disclosure” are met.
The legislation puts in place a standardized process governing how requests are made, and when the information will be disclosed. It stipulates that the individual who is the subject of the search is entitled to see the results prior to disclosure to the person or organization making the request. It is only after the results have been disclosed to the individual and the individual consents in writing that the results will be disclosed to the requesting party. When a person or organization does receive information through this process, it cannot use the information for any other purpose except that for which it was requested.
Employers that conduct criminal records checks should ensure that when using a third party screening provider, the provider complies with the new obligations under the legislation. Employers that require criminal record checks must also keep in mind their human rights obligations. Under the Ontario Human Rights Code, employers are prohibited from discriminating against an employee or prospective employee with respect to a criminal conviction for which a pardon has been granted. Human rights legislation in other provinces dictates different standards. Employers with employees in multiple jurisdictions should ensure they are familiar with the human rights requirements in each applicable province.
This blog was first published on First Reference Talks.