Update on police record checks

Employers should be aware of changes in Ontario

Stuart Rudner

By Stuart Rudner 

Employers in Ontario should be aware of the fact Ontario recently passed the Police Record Checks Reform Act, 2015, which is intended to change the way employers conduct criminal background checks and will impact their ability to do so. All employers should be aware of the new laws before engaging in any such criminal background checks. 

To begin with, it is important to remember any type of background check, including police or criminal background checks, should not be conducted indiscriminately or without good reason. These checks impact the privacy rights of the subject individual and may be legally offside unless the infringement upon their privacy can be justified. 

Unfortunately, many employers continue to maintain policies which provide for across-the-board criminal or other background checks, regardless of the nature of the position in question. That will not be justifiable if challenged. 

Assuming a criminal background check is appropriate, the provisions of the new act must be followed. 

The act creates three types of record checks: 

  • criminal record checks
  • criminal record and judicial matters checks
  • vulnerable sector checks. 

The act is concerned, among other things, with restricting the disclosure of information unrelated to convictions. This would include outstanding criminal charges, charges that resulted in a finding the individual was not criminally responsible for her actions as a result of a mental disorder, convictions for which the individual has received a form of discharge, and other court orders that were not convictions. These are not to be disclosed. 

The act changes the process which is to be used in responding to criminal record checks. In accordance with the new legislation, any individual with respect to whom any of the forms of record checks listed above is carried out is entitled to receive and review the information first, before it is disclosed to the organization that requested that information. The subject individual must also consent to its disclosure before it is provided. 

As a result, employers seeking to conduct such background checks will only receive the information requested if the individual consents after having an opportunity to review the information that will be disclosed. 

This legislation should be a reminder to employers that they should consider their hiring practices and ensure any form of background checks they are conducting are relevant and justifiable in relation to the specific position. 

Where criminal record checks are appropriate, employers should ensure they comply with the new legislation, which will be coming into force shortly.

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