January 31st, 2019 | Sterling

3 Pillars of PRCRA and Integration with Sterling

The Police Record Checks Reform Act of Ontario (PRCRA) came into force on November 1^st, 2018.  We have received many questions from Sterling clients regarding the three types of checks that the PRCRA prescribes and how these work with Sterling’s Canadian Criminal Record Check (CCRC) and Enhanced Police Information Check (EPIC) services. This article illustrates how Sterling’s processes seamlessly integrate with the PRCRA.

First, let’s recap the objectives of the PRCRA. It is to:

• Standardize three types (levels) of checks that police in Ontario provide:
  • Criminal Record Check (CRC)
  • Criminal Record and Judicial Matters Check (CRJMC)
  • Vulnerable Sector Check (VSC)
• Provide applicants a review and consent opportunity prior to their information being disclosed
• Provide applicants with a process for reconsideration of a disclosure of information about them
• Allow police to apply exceptional disclosure of non-conviction information in relation to Vulnerable Sector Checks when specific criteria are met

Generally, the PRCRA prescribes that applicants be provided an opportunity to review their information and provide consent for disclosure and specifically allowing exemptions for certain sectors as listed in the Act’s regulations.  In the case of third party background screeners like Sterling, an exemption is granted by the regulations.  The rationale for our exemption is that Sterling’s processes do not disclose applicant information.

Discovery vs disclosure of information is an important concept when examining how Sterling’s processes seamlessly mesh with those prescribed by the PRCRA.  I’ve commented in previous blogs on the functions of discovery vs disclosure.

The demarcation between discovery and disclosure only applies in the minority of cases when Sterling’s processes result in an outcome of: Unable To Complete (UTC).  What this result means is that potentially relevant information about the applicant has been discovered. A Police Service is then required to make decisions about disclosure of that information – often in cooperation with other police jurisdictions when the information concerned belongs to them. This “handoff” occurs in all jurisdictions in Canada.  What the PRCRA has done in the case of Ontario, is define the parameters for disclosure.

Two critical questions to be examined from the perspective of our clients:

1. Does Sterling’s process seamlessly integrate with three levels of checks now prescribed by PRCRA?
2. Are there gaps between Sterling’s UTC outcome and what an Ontario police service might ultimately disclose about an applicant?

Breaking Down Ontario Police’s 3 Levels of Checks

1. PRCRA Criminal Record Check and Sterling’s Canadian Criminal Record Check

   The base level check defined by the PRCRA is a search of the National Repository of Criminal Records as maintained by the Royal Canadian Mounted Police (Criminal Record Check). This search involves the discovery of adult criminal convictions. Whether performed by an Ontario police service per the PRCRA or by Sterling through one of its Canadian Police Partner Agencies, is the same process. Owing to federal policy that permits an applicant to declare his/her adult convictions, all police services – including Sterling’s Canadian Police Partner Agencies (PPA) – are authorized to generate a standard response confirming the applicant’s declared conviction(s) where it is determined that they match.  Note that this is not a disclosure since it is information that the applicant already declared.

   A word about Youth Convictions:  Although the PRCRA identifies Youth Convictions as being disclosed, any such disclosure is subject to the provisions of the Youth Criminal Justice Act.  These provisions are narrow in the context of background screening and limited to positions with the federal, provincial or municipal government. Sterling’s processes do not disclose youth convictions.

2. PRCRA Criminal Record and Judicial Matters Check and Sterling’s Enhanced Police Information Check

   A CRJMC builds upon a CRC by also searching for pending criminal charges, arrest warrants, absolute and conditional discharges that are in effect, and prohibition and probation orders associated to convictions.

   The tools used to conduct these searches by Ontario police services are identical to those used by Sterling’s PPAs. In the case of a Sterling EPIC, when information about the applicant is discovered, the process ends as Unable To Complete with the applicant being referred to their police service of jurisdiction so that disclosure of relevant information may occur. In the case of Ontario police services, the applicant will undergo a CRJMC. Elsewhere in Canada, the equivalent is generally referred to as a Police Information Check (PIC).

3. Vulnerable Sector Check

   Federal policy currently prevents third party background screeners from initiating VSCs. I’ve written extensively on the limited value of VSCs and encourage readers to review previous blogs. The only distinction of a VSC over an EPIC is the search of the Pardoned Sex Offender Data Base pursuant to the Criminal Records Act. There is no one in the pardoned sex offender data base born before February 28^th, 1986.

   It’s worthy to note that the PRCRA has a provision for exceptional disclosure of non-conviction information from local police records but only for Vulnerable Sector Checks. It is a narrow provision and to understand when it can be applied, one must review the criteria set out in the PRCRA. The Local Police Information searches that are included in Sterling’s EPIC service cover the non-conviction information types that may be disclosed by Ontario police services when they conduct a VSC.

   This means that when organizations are advised that an Ontario EPIC applicant must be referred to their police service, they may then choose to request a VSC.

   If the police service agrees that running a VSC is lawful, it could result in additional disclosure of non-conviction information about the applicant.

Conclusion

Sterling’s processes align with the Police Record Check Reform Act of Ontario.

Sterling’s processes support the important distinction between discovery and disclosure of applicant information. Well over ninety percent of applicants have no criminal or adverse police information about them. The value of Sterling’s services is reaching that determination rapidly, securely and conveniently. Ontario legislators recognize that Sterling’s processes do not disclose information about applicants and therefore, we are exempt from the requirement to obtain additional consent prior to sharing results.

The objectives of the PRCRA are laudable. They complement Sterling’s long-established processes seamlessly as is evidenced by the fact that no substantive changes to Sterling’s services has been required.

If you have questions about the PRCRA and Sterling’s products, we’re here to help.

Sources:

http://www.mcscs.jus.gov.on.ca/english/police_serv/PoliceRecordsChecks/PS_records_checks.html

http://www.rcmp.gc.ca/en/types-criminal-background-checks

This content is offered for informational purposes only. First Advantage is not a law firm, and this content does not, and is not intended to, constitute legal advice. Information in this may not constitute the most up-to-date legal or other information.

Readers of this content should contact their attorney or lawyer to obtain advice concerning any particular legal matter. No reader, or user of this content, should act or refrain from acting on the basis of information in this content without first seeking legal advice from counsel or lawyers in the relevant jurisdiction. Only your individual attorney or legal advisor can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this content does not create an attorney-client relationship between the reader, or user of this presentation and First Advantage.