An important piece of legislation with practical privacy implications will be before the Ontario Legislature when it resumes sitting on September 14. Bill 113, the Police Record Checks Reform Act, 2015 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. This statute is a direct response to concerns about the practice of releasing non-conviction information and mental health information as part of criminal record checks.

Bill 113 was met with broad stakeholder support, including from the Ontario Association of Chiefs of Police, the Canadian Civil Liberties Association and the Centre for Addiction and Mental Health. In this post, we’ll examine Bill 113 in detail, including what a police records check will include and what it won’t when you request a police records check on a current or prospective employee or volunteer. We will also examine the role of judgment in relation to including non-conviction records in a vulnerable sector check.

Background on police records checks in Canada

In Canada, the largest group of criminal records are those in the Canadian Police Information Centre (CPIC) database. The CPIC database was established in 1972 and is maintained by the Royal Canadian Mounted Police (RCMP). Local provincial and municipal police forces have access to CPIC. In addition, CPIC is connected to the U.S. National Crime Information Centre (NCIC) and, through the Automated Canadian United States Police Information Exchange System, state police databases are connected to the CPIC system.

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CPIC is not the only sources of records. Other Canadian federal and provincial agencies, as well municipal and provincial police services, may create and maintain their own local records. Local police forces may enter information into CPIC but may not be consistent with respect to what information is entered or how quickly they enter the information.

It is important to understand that provincial offences charges and convictions will not usually be included in a police records check. Provincial offence convictions relate to a broad array of regulatory offences, including Highway Traffic Act offences, municipal by-law charges and charges laid under provincial legislation the Liquor Licensing Act, the Environmental Protection Act, the Occupational Health and Safety Act and other provincial statutes.

Who will be affected?

Bill 113 applies to any person or organization that requires that a search be conducted of the CPIC database or another police database in order to screen an individual for the purposes of determining the individual’s suitability for an officer or employment, volunteer work, a licence, membership in any body or to provide or to receive goods or services. It also applies to any person or organization who seeks this type of records check for the purpose of assessing an individual’s application to an educational program or institution.

It appears that the intention is for Bill 113 to apply even if the person or organization seeks a police record check outside of Ontario. In other words, the legislation will apply if either the person or organization requesting the records check is in Ontario or the records check will be conducted in Ontario. Indeed, s. 2(4) expressly states that the statute “applies in respect of records in the custody or under the control of a police force or in the custody or under the control of another agency responsible for providing police services in Canada.”

Not everyone is covered by Bill 113. The Ministry of the Attorney General and Crown Attorneys are not covered by the restrictions in Bill 113 when they are conducting searches in the course of fulfilling their duties.

In addition, certain types of searches are not affected by Bill 113. Many of the types of searches that are excluded are ones that are related to the protection of children or government programs. For example, a search required in respect of an application for custody of a child by a person who is not a parent of the child or a search in connection with the Office of the Children’s Lawyer’s involvement in a custody dispute are not subject to Bill 113. Police record checks required as part of the process of changing one’s name or as part of the administration of the Firearms Act (Canada) are not affected. Searches by Sheriffs in connection with determining whether a person is ineligible for jury duty are not covered.

Affected police records checks

Bill 113 will standardize the terminology and will define the type of information that can be disclosed in three types of police records checks:

  • Criminal Record Check (CRC): This is commonly used in connection with applications for employment or volunteer positions (other than those with vulnerable persons). This the most basic type of check and returns criminal convictions and those findings of guilt under the Youth Criminal Justice Act that are permitted to be disclosed.
  • Police Information Check (PIC): This form of records check includes the information in a CRC but also contains charges and warrants, judicial orders and peace bonds. It may also include non-conviction information as well as absolute and conditional discharges. If Bill 113 is enacted, the PIC will be known as a criminal record and judicial matters check (CRJMC).
  • Police Vulnerable Sector Check (PVSC): This type of records check is available if the person is going to be employed or is volunteering in a position that involves vulnerable persons. It will include the information that is contained in a PIC as well as information about offences for which the person was pardoned. It may also include non-conviction information.

Vulnerable persons include children (less than 18 years old) and any other persons who are in a position of dependence or risk because of their age, disability or other circumstances.

Consent to a records check

If enacted, Bill 113 will require that any person or organization seeking to acquire a police records check will require the written consent of the individual not only to the records check but also to the type of records check. It is implied that this consent will need to be free and informed. This likely raises the bar to current practice and may cause some police record check providers to revisit their forms to ensure that the individual understands what is being checked and what will be disclosed.

A police records check will only be provided to the individual making the request. Only if the individual then consents will a copy of the police records check be provided to a third party. This will allow the individual to consider whether any information was improperly included prior to the records check being provided to an organization that may be making a hiring decision about the individual.

Contents of the reports of police records checks

Bill 113 standardizes what types of information is permitted to be disclosed under the three types of police record checks. The following table is a summary of information that is contained in the schedule under the act.

Non-conviction records

Non-conviction records will not be disclosed except in connection with a vulnerable sector check. If a vulnerable sector check is conducted, Bill 113 provides that non-conviction information will only be disclosed if all of the following criteria are met:

  • The criminal charge is one that is listed in the regulations that will be made under Bill 113 if enacted. These have not been identified as yet but likely will involve sexual offences and offences that may disproportionately victimize vulnerable persons.
  • The alleged victim must have been a child or a vulnerable person. In the case of a vulnerable adult, this may require some additional review to determine.
  • 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.

In coming to the conclusion that the person presents a risk of harm to a child or vulnerable person, the following criteria are to be considered:

  • Whether the individual appears to have targeted a child or a vulnerable person.
  • Whether the individual’s behaviour was repeated and was directed to more than one child or vulnerable person.
  • When the incident or behaviour occurred.
  • The number of incidents.
  • The reason the incident or behaviour did not lead to a conviction.
  • Any other prescribed considerations.

This means that whether non-conviction information will be included in a vulnerable sector check will depend on the judgment of the party performing the records check. This places a significant onus on the police force or the third-party provider of criminal records checks. It is not clear whether a police force or third-party provider could be sued for negligence in failing to include non-conviction information in the event that a vulnerable person is later harmed.

Offences

As drafted, there is very little in the way of enforcement risk for breaches of the Act. If a police record check provider willfully breaches the Act by conducting a police records check without the consent of the individual or by including information that should have been withheld, the record check provider could be liable for an offence under the Act. However, the penalty is a maximum fine of CA$5,000 and no prosecution can be commenced without the consent of the Minister of Community Safety and Correctional Services.

Conclusion

Bill 113 is a modest reform to police record checks in Ontario. The types of police record checks that are available remains the same. The most significant difference is the approach to non-conviction information for vulnerable sector checks. The police force or third-party provider who is preparing the police records check will now have a significant decision to make regarding whether non-conviction information should be disclosed. Although Bill 113 provides some guidance, this will involve judgment.

photo credit: RCMP Impala via photopin(license)