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July 24th, 2018 | Sterling
This spring, the Ontario government has passed regulations and proclaimed the Police Record Checks Reform Act (also known as Bill 113) effective November 1, 2018. Since then, there has been a provincial election and a change of government, which may change Ontario’s approach to regulating criminal record checks. Sterling Talent Solutions’ Mark Sward, Assistant Vice President, Global Privacy and Sophia Blanc, Director of Global Product Management presented “Ontario’s New Police Record Checks Reform Act (Bill 113): What Happens on November 1st?” They explained the history behind the regulation, the changes that could impact the criminal records check process, important regulation details and possible future changes.
The Police Record Checks Reform Act, passed by the Legislative Assembly of Ontario, is intended to prevent the disclosure of unnecessary information in police record checks in Ontario. The province is establishing additional rules to govern police record checks to protect public safety and to strengthen individual civil liberties by removing unnecessary barriers to employment, education and volunteer opportunities. The Act standardizes the process and specifies the information that can be released by defining three types of police record checks:
Canadian Criminal Record Checks, consisting of a search of convictions in the National Repository of Criminal Records, are a search of adult convictions registered in the National Repository of Criminal Records, which are retained until the subject of the record reaches 125 years of age or has been confirmed deceased. The only other way an adult conviction may be removed from the National Repository of Criminal Records is if the individual applies for and is successfully granted a record suspension (formerly termed a pardon). A criminal record and judicial matters check is a criminal record check that also includes local police information, such as pending charges, discharges and court orders. Finally, a vulnerable sector check includes criminal records, local police information and a search for certain pardoned sexual offences.
The Police Record Checks Reform Act was introduced as Bill 113 in the Ontario legislature in June 2015 following publicity and regulatory attention to privacy and human rights implications of criminal record checks. In December 2015, it passed through the legislature and received royal assent, but was not proclaimed into law pending the publication of regulations. In March 2018, a rough outline of potential regulations was posted by the ministry and by April 2018, final regulations were passed without a comment period.
This is a provincial law which applies to the organizations or individuals that request background checks and the organizations that deliver them. Normally, provincial laws do not apply to federally regulated industries, such as airlines, telecommunications companies and banks. However, where the activity is not a core part of the federally-regulated activity, provincial laws may apply.
The Police Record Checks Reform Act applies to criminal records held by police services and other law enforcement agencies in Canada. It does not apply to records held by courts or records held by authorities outside of Canada. The law applies to organizations that need to run a Canadian Criminal Record Check (CCRC) or local police search on an individual for screening purposes, CCRC or local police search providers, or individuals running a search on themselves.
There are some types of activities that are exempt from all or part of the law. They include:
There are crucial details of the Police Records Checks Reform Act that must be complied with when the law goes into effect on November 1, 2018. The Act regulates the type of information disclosed based on the type of search. Non-conviction information cannot be released unless it meets specific criteria. The criminal record check provider must release the results to the individual and cannot share results until the individual has reviewed the results and provided written consent to share them. CCRC or local police search providers must keep certain records, but this has not been specified as of the webinar. Contracts between providers and police services must document compliance with the law. There is a fine of a maximum of $5,000 per offense for non-compliance with the regulations.
As of June 2018, a new Progressive Conservative government was elected in Ontario which could have a different approach to regulating police criminal record checks. The law allows the responsible minister and cabinet to change exemptions, forms, statistical recordkeeping requirements, processes, definitions, etc., without approval from the legislature.
The Police Record Checks Reform Act requires candidates to provide consent after viewing the results of the criminal record check in order to share the CCRC results with the organization that requested it. Sterling and any other third-party background screener must obtain written consent from candidates after they have viewed their results. Consent cannot be obtained by phone meaning that an online experience may be the only viable one. The new step of written consent can create a delay before the end user can see the result. If a candidate refuses to consent to results, a check may be closed as “unable to complete” even though it was in fact completed, because the law does not permit the results to be delivered to the requestor.
As a third-party screening company, Sterling does not receive details of criminal records or local police records; our services only flag whether those records may exist and confirm whether the candidate has disclosed them accurately. We do not currently disclose non-conviction information. The Act restricts the release of certain types of non-conviction information, such as mental health interventions by police. Sterling implemented these restrictions in the way we flag the existence of records in our products, including the Enhanced Police Information Check (E-PIC), before this bill was introduced in the Ontario legislature, so the passage of the Act does not affect the information that Sterling provides to clients. Obtaining a person’s consent before running the criminal record search is already built into our processes. The most significant change arising out of this new law is the requirement to obtain consent a second time after the results are received from the police.
For more information on the changes required under the Police Records Checks Reform Act, listen to an OnDemand version of the “Ontario’s New Police Record Checks Reform Act (Bill 113): What Happens on November 1st?” webinar. Also, stay tuned for a follow-up blog post with answers to some of the many questions we had during the presentation.
Please note: Sterling Talent Solutions is not a law firm. The material available in this publication is for informational purposes only and nothing contained in it should be construed as legal advice. We encourage you to consult with your legal counsel to obtain a legal opinion specific to your needs.
This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.