Criminal Record Check? Why?
I’ve been asked to provide a Criminal Record Check…
When you apply for some jobs or to obtain a licence to engage in certain businesses and professions, you may be asked to agree to have the police check their records for information about you and provide a report on their findings to the employer or regulator. The purpose of this check is to assist an organization in determining whether you have engaged in any past conduct that would suggest that you are not a suitable candidate because of concerns about your honesty and integrity or the safety of others in your care. Typically, the Criminal Record Check forms part of an organization’s screening process that also includes other methods of assessing suitability such as interviews and reference checks.
What you may not know is 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. The Bill 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such as court orders made under the Mental Health Act and court orders made in relation to a charge that has been withdrawn.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.