What You Need To Know About The New Police Record Checks Reform Act

On November 1, 2018, the Police Records Checks Reform Act (PRCRA) comes into force. Police record checks are searches of police databases that are conducted in order to screen a person to help determine their suitability for things like employment, volunteer position, a licence, etc.

The new Act will standardize most police record checks in Ontario, including regulating the type of information that police services release on these checks. For information on when a record check might be exempt from various PRCRA requirements see the section on “Exemptions” below.

WHAT LEVELS OF RECORD CHECKS ARE THERE?

Under the PRCRA there are three levels of record checks:

1. A criminal record check
2. A criminal record and judicial matters check
3. A vulnerable sector check

WHO CAN REQUEST A RECORD CHECK?

An individual must give their consent before the police can run a record check.

The most privacy-invasive type of check – a vulnerable sector check – can only be run if:

• the request is made by a person or organization responsible for the well-being of a child or vulnerable person;
• the request is made in the context of a specific application for a paid or volunteer position;
• the position being applied for is one of trust or authority towards a child or vulnerable person; and
• the applicant has given their consent in writing.

A vulnerable person is a person who, because of their age, a disability or other circumstances, is in a position of dependency on others or is at a greater risk than the general population of being harmed by a person in a position of trust or authority towards them. Not every position that involves contact with a vulnerable person will meet the requirements for a vulnerable sector search. The position must be one that creates either authority (power) over, or special trust with, a vulnerable person.

WHAT INFORMATION CAN BE RELEASED ON A RECORD CHECK?

At each level of record check more information can be released.

Under a criminal record check, the police can release:

• Criminal convictions that are not subject to a pardon or record suspension. Summary convictions, even if they are not sealed by a pardon or record suspension, can only be disclosed for five years.
• Findings of guilt under the Youth Criminal Justice Act where permitted by that Act (although note that these cannot be passed on to most employers – see section on Youth Records below)

Under a criminal record and judicial matters check, the police can release:

• Everything in the previous level of check:
• Criminal convictions that are not subject to a pardon or record suspension. Summary convictions, even if they are not sealed by a pardon or record suspension, can only be disclosed for five years.
• Findings of guilt under the Youth Criminal Justice Act where permitted by that Act (although note that these cannot be passed on to most employers – see section on Youth Records below.

And this information:

• Criminal offences where the person has been found guilty and received an absolute discharge within the past year
• Criminal offences where the person has been found guilty and received a conditional discharge within the past three years
• Criminal offences where there is an outstanding criminal charge or arrest warrant
• Some types of outstanding court orders

Under a vulnerable sector check, the police can release:

• Everything in the previous level of check:
• Criminal convictions that are not subject to a pardon or record suspension. Summary convictions, even if they are not sealed by a pardon or record suspension, can only be disclosed for five years.
• Findings of guilt under the Youth Criminal Justice Act where permitted by that Act (although note that these cannot be passed on to most employers – see section on Youth Records below)
• Criminal offences where the person has been found guilty and received an absolute discharge within the past year
• Criminal offences where the person has been found guilty and received a conditional discharge within the past three years
• Criminal offences where there is an outstanding criminal charge or arrest warrant
• Some types of outstanding court orders

And this information:

• Criminal convictions where a pardon or record suspension has been granted, if authorized under the federal Criminal Records Act
• Criminal offences where a person has been found not criminally responsible on account of mental disorder, except if over five years has passed since a person received an absolute discharge
• Non-conviction information where a person was charged with a criminal offence, but never found guilty because the charge was dismissed, withdrawn or stayed. In order to disclose this information the charge must meet the “exceptional disclosure test”, which requires that:

1. The criminal charge be on a list of offences (set out in Regulation);
2. The alleged victim was a child or vulnerable person; and
3. The information provides reasonable grounds to believe that the individual has been engaged in a pattern of predation indicative of a risk of harm to a child or vulnerable person.

No police record check can ever disclose police contact where there hasn’t been a criminal charge laid. This includes police apprehensions under the Mental Health Act, instances where a person was investigated but never charged, and police interactions where information was recorded but no charges were laid. Police record checks also will not reveal findings of guilt under provincial acts (eg. Liquor Licence Act offences, Highway Traffic Act offences, etc.).

WHO RECEIVES THE RESULTS OF A RECORD CHECK?

In most cases the results of a record check must be returned to the person applying for the check, who can then decide whether or not they want to share the information with anyone else.

For the first two levels of check (criminal records check, criminal records and judicial matters check), the regulations allow for a self-declaration process where the results can be sent to you or, if you consent, directly to a specific employer or organization.

Under this self-declaration process, a person is asked to declare his or her Canadian criminal conviction history to the records check provider.

For a criminal records check, if the self-disclosure matches what is in the police database will be disclosed. In situations where there are no criminal convictions this will be a confirmation that there is a match with no criminal convictions. If the person does have a record of criminal convictions, the record check provider will disclose the fact that there is a match along with the self-declaration form.

A criminal records and judicial matters check can include not only criminal convictions but also a range of ‘judicial matters’ (for details see the section on What information can be released on a record check?). Self-disclosure works the same way for the criminal convictions portion of this check. If there are no ‘judicial matters’ to disclose, the records check provider will also be able to state that there is a clear result for judicial matters. If, however, the police databases reveal any ‘judicial matters’ that could be disclosed on this level of check, the record check provider will only state that there is not a clear result for judicial matters.

WHAT ABOUT YOUTH RECORDS?

Youth who are under 18 when they (allegedly) committed a criminal offence are dealt with under the Youth Criminal Justice Act (YCJA). Unless a young person is found guilty and sentenced as an adult, the YCJA governs the disclosure of youth records.

Under the YCJA, although a youth can request their own record for a certain period of time, the only time a youth record can be included on a police record check is when that check is being conducted for employment with or provision of services to a government (municipal, provincial, or federal). Even government employers cannot see youth records once the “access period” is closed. The length of the access period depends on many different factors.

• For more information on how youth records work and how long access periods are see http://www.justice.gc.ca/eng/cj-jp/yj-jj/tools-outils/sheets-feuillets/recor-dossi.html.

In order to ensure that youths’ rights are protected, the PRCRA requires that any youth record that is disclosed be printed on a separate page. The page will also include a statement directing the youth to remove the page before sharing the police record check with anyone else, including a potential employer or volunteer organization.

EXEMPTIONS

Some types of record checks are exempt from the requirements of the PRCRA. This doesn’t mean that police services will necessarily release more information on these searches – it just means that this particular law does not govern the disclosure of records in some situations. There will still be other laws that govern these record checks, and police services may still decide to follow the ‘normal’ three levels of record checks as a matter of policy.

The list of searches and record check products exempted from the Act include:

• A police record search under the Children’s Law Reform Act regarding an application for child custody by a person who is not the child’s parent
• A search for the Office of the Children’s Lawyer when it is representing a child or reporting to a court
• A check required under the Change of Name Act
• A search requested by a sheriff under the Juries Act
• Searches related to the administration of the Firearms Act
• A search required for the purpose of carrying out the Attorney General’s functions under the Ministry of the Attorney General Act
• A search required to fulfill duties assigned to Crown Attorneys and provincial prosecutors under the Crown Attorneys Act
• Some searches requested by children’s aid societies
• Some searches related to adoption, residential and foster care
• Screening certain individuals working in or providing goods or services in the Child and Parent Resource Institute
• Screening of employees, volunteers or students in some electricity generation facilities
• Some searches requested by or on behalf of the Ontario Securities Commission
• Screening of certain individuals in connection with police services, probation and parole offices, correctional institutions, inspectors or investigators charged with investigating offences or enforcing the law, the Special Investigations Unit, the Independent Police Review Director, a local corrections monitoring board, and the Provincial Security Advisor for Ontario
• Screening certain individuals involved in the “administration of justice sector”, adjudicative tribunals, the Office of Public Guardian and Trustee, the Children’s Lawyer, the Office for Victims of Crime,
• Some searches requested by the Criminal Injuries Compensation Board
• Some searches performed in connection with licensing and regulation in financial services

Some records checks conducted in connection with a school or the Child Care and Early Years Act do not have to follow the rules about what information can be released at each level of check.

For all the details of exemptions from the Act you can look at the Regulations.

WHAT IF I DISAGREE WITH WHAT IS BEING RELEASED ON MY RECORD CHECK?

If you think the information that the police have on file is not accurate, you can make a complaint to the Information and Privacy Commissioner.

If the police have decided to disclose non-conviction information under the “exceptional disclosure exemption”, the police must also include information on how you can apply to have the disclosure reconsidered. You need to provide a request for reconsideration in writing no later than 45 days after receiving your record.

If you think that the police are releasing information in contravention of the PRCRA, you should speak to a lawyer and get in touch with the CCLA!