Ontario Police Records Checks Reform Act Passed

The Ontario Legislature passed the Police Records Checks Reform Act, 2015, (Bill 113) on December 1, and it was given Royal Assent on December 3. No date has been set for the coming into force of this legislation; however, during hearings on Bill 113, the Hon. Bas Balkissoon, MPP and Parliamentary Assistant to the Ministry of Community Safety and Correctional Services stated that 60 percent of police forces were already complying with the rules contained in the legislation.

An overview of Bill 113 was contained in a previous Tracker Post on August 25. When this statute comes into force, it will limit the types of information that are disclosed in response to a records check request and will bring greater uniformity to records checks in Ontario. Essentially, there will now be consistency within Ontario in defining three types of police records checks:

• Criminal Records Checks that will show criminal convictions for which a pardon (now called a records suspension) has not been issued or granted.
• A Criminal Record and Judicial Matters Check, which will also show court orders made against the individual, except for certain mental health-related orders. Recent absolute and conditional discharges will also be included.
• A Vulnerable Sector Check, which will show recent discharges for being not criminally responsible on the basis of a mental health disorder and which may also show non-conviction records depending on regulations that are still being drafted. A Vulnerable Sector Check is limited to situations in which an individual will be working with children or vulnerable persons.

In late November, the Standing Committee heard some concerns from stakeholders about the contents of the bill. In this post, we will examine those concerns and explain what changed and what issues remain to be addressed before the legislation comes into force.

New Exemption for Children’s Aid Societies

The Association of Children’s Aid Societies scored a victory during the Committee hearings. Mary Ballantyne, CEO of the association, told the committee that Bill 113 interfered with the ability of the Children’s Aid Societies to get the complete picture when assessing child safety. Under the Police Records Checks Reform Act, 2015, non-conviction information is only provided in very limited circumstances. The offence must be one that is specified in regulations (not yet prepared), the alleged victim must be a child or a vulnerable person, and there must be reasonable grounds to believe that the individual has engaged in a pattern of predation (s. 10). The association was concerned that this meant that the societies would not be able to obtain complete information relating to mental health and domestic violence, the presence of restraining orders and youth records when assessing the fitness of an alternative caregiver when a child is no longer safe in his or her home and the societies are evaluating the capabilities of relatives to provide care.

One option for the government would have been to use the regulation-making power under s. 2(2) to exempt searches by the societies in respect of the carrying out of their duties under the Child and Family Services Act. This regulation could have been tailored to specific needs of the societies. However, the association was successful in entrenching this exemption in the legislation itself in a new paragraph 8 of s. 2(2). This exemption is very broad and exempts the societies from the restrictions of the legislation when performing functions such as investigating allegations of a need for protection, providing protection, providing guidance, counselling and other services to families for the protection of children, and many other functions.

No Relief for the Professional Background Screeners

Although the National Association of Professional Background Screeners (NAPBS) believes that its members conduct about 90 percent of the third-party background checks performed in Canada, NAPBS appears not to have been consulted during the development of Bill 113. This was a very serious omission by the Ministry of Community Safety and Correctional Services.

NAPBS explained that its members account for approximately 8 million records checks every year. These records checks are conducted through relationships with police services and a memorandum of understanding with the Royal Canadian Mounted Police (RCMP), which grants access to information from the Canadian Police Information Centre (CPIC). NAPBS essentially receives three responses when it conducts a records check: yes, there is a police record matching this individual’s name; no, there is no match, or maybe there is a match and more information is required to confirm the identity of the person. In other words, NAPBS does not receive information about the content of a records check only that there is a record that appears to match the individual or not. If the response is a yes or a maybe, the individual may have to attend at a police station to obtain a records check.

NAPBS raised a number of concerns with Bill 113. First, it was not clear to NAPBS how its members will fit within the legislative scheme. NAPBS members have no way of knowing what information was used to generate the report or whether  there is a hit. NAPBS members may be concerned about potential liability if they inadvertently report a hit when the underlying record should not have been included in the records check.

Second, NAPBS noted that the legislation introduced a potential data-integrity problem because the record check would be provided to the individual, instead of to the individual and the NAPBS client (the employer or non-profit) who might be requesting the check. NAPBS argued that the legislation should provide for the ability of dual consent—that is, for the individual to consent to the records check and to the provision of a copy of the records check to a third party.

When the committee conducted a clause-by-clause analysis of the legislation, Conservative MPP Randy Hillier attempted to introduce an amendment that would have exempted a criminal record check done for employment purposes from the requirements of the bill if it did not reveal any details of a conviction or a judicial matter. This would allow the types of reports produced by NAPBS members to continue to be produced directly to employers or prospective employers to continue.

However, this motion failed. It remains unclear, therefore, how this bill will affect the vast number of records checks that are conducted by NAPBS members. It is possible that the application of the legislation to NAPBS members’ records checks may be clarified in forthcoming regulations.

No Clear Answer to U.S. Border Access to Mental Health Information

One of the situations that prompted the enactment of the Police Records Checks Reform Act, 2015, was a highly reported case in which a Canadian citizen was prevented entry to the United States from Canada because her partner had made a telephone call reporting her suicide attempt. The suicide attempt had occurred four years earlier. News reports suggested that this was not a one-off occurrence.

However, during the committee hearings, Laura Berger, Program Director with the Civil Liberties Association, noted that U.S. law enforcement authorities, including U.S. Border Services would continue to have information that is entered into CPIC by local police forces. Therefore, if police continue to enter sensitive information relating to mental health calls, this information will be accessible to U.S. authorities, which could be used to refuse entry to the United States.

During the committee deliberations, New Democratic Party MPP Jennifer French attempted to introduce an amendment that would preclude disclosure of information to a government in Canada or a foreign country (and their agencies) except as might be relevant to an active police investigation. As was pointed out by other members of the committee, it was unclear how this would actually be effective given that CPIC is under federal jurisdiction and is accessed directly by foreign law enforcement agencies. Nevertheless, the amendment would have restricted those entities under provincial jurisdiction from providing that information to foreign governmental agencies. This proposed amendment was defeated.

No Harmonization of Cost and Timelines—Yet

The Ontario Nonprofit Network, an association of non-profit organizations, did not make any headway during the committee hearings on how to handle the cost and length of time necessary to conduct a police records check. The network drew the committee’s attention to the wide divergence in cost and processing times for records checks across Ontario. Some police forces charge for records checks while others do not. In addition, the network noted that records checks are performed in a matter of days in some places and can take 10 weeks or more in others. The network called on the government to harmonize cost and processing time. Although the network held out hope that this may be addressed in regulations, it will be interesting to see whether the ministry believes that there is regulation-making power included in the legislation to permit it to do so.

Another issue identified by the network was that non-profit organizations were not equipped to evaluate vulnerable sector checks. The network called on the Ontario government to set up a centralized process for reviewing and adjudicating whether a person should be disqualified from volunteering or employment in a position involving access to vulnerable persons instead of the responsibility being borne by the non-profits.

What’s Next?

The Police Records Checks Reform Act, 2015, provides the minister of community safety and correctional services and the lieutenant-governor in council with a number of regulation-making powers. The most important of these, in order to make the legislation operational, is to develop a list of non-conviction records that may be included in a Vulnerable Sector Check. It is widely expected that this regulation will be based on the list of offences for exceptional disclosure contained in the Ontario Association of Chiefs of Police and Law Enforcement and Records (Managers) Network (LEARN) Guideline, upon which the legislation was based.

The LEARN Guideline contains a lengthy list of offences that will show up on a Vulnerable Sector Check if certain criteria are met even if the individual has not been convicted. These non-conviction records will appear if the victim or alleged victim was a child or vulnerable person and there are reasonable grounds to believe that the person has engaged in a pattern of predation such that the individual presents a risk of harm to a child or a vulnerable person.

The minister of community safety and correctional services will also need to pass regulations relating to the manner in which disclosure of these records will be subject to reconsideration when the affected individual seeks that reconsideration. This may also be based on the LEARN Guideline. Under the LEARN Guideline, a person has 60 days to request a reconsideration. A reconsideration panel of at least three people (e.g. the police records unit manager, the operations superintendent and a major crime staff sergeant, or their designates) must process reconsideration requests within 30 days. Under the LEARN Guideline, the reconsideration panel should take into account the age of the individual at the time of the incident; the nature of the non-conviction incident, including whether there were repeated alleged offences towards more than one person and whether those persons were vulnerable persons; whether there was a pattern of alleged offences, and the reason that the particular incident did not result in a conviction.

Finally, it remains possible that the government will meet with NAPBS to clarify how the legislation will apply to NAPBS members when they perform records checks. The government has the power to do this by regulation and could attach conditions.