March 28th, 2019 | Sterling

Confusion in Ontario regarding youth conviction records

The new Police Records Check Reform Act (PRCRA) has impacted some local practices – what organizations need to know

We continue to receive questions with regards to the Police Records Check Reform Act of Ontario, so I’d like to take this opportunity to address some of the recent inquires.

If you are with an Ontario organization used to receiving youth conviction information about the applicants under age 18 from your local police and now you’re no longer obtaining such information – purportedly because of the new Police Records Check Reform Act (PRCRA), you may be a bit confused. You’re not alone.

The PRCRA came into force on November 1^st, 2018. Within that legislation at Section 11, the Act deals with the manner of disclosure regarding youth records. It says:

If this Act authorizes the disclosure of a finding of guilt under the Youth Criminal Justice Act (Canada) in respect of an individual, the information shall be disclosed in a separate record from any record containing other information disclosed in respect of the individual in the prescribed form, if any.

The “if” hinges on what the federal law – the Youth Criminal Justice Act (YCJA) – allows with respect to disclosure of youth convictions. It is the YCJA which limits the disclosure of youth records for background screening purposes to a narrow provision involving employment or placement of an applicant within a federal, provincial, or municipal government. This has always been the case although perhaps, not always the practice at the local level. Nothing substantive has changed with the passage of the PRCRA – even though it may appear that way to some.

News articles like the recent one published in the Cambridge Times can create the impression that the advent of the PRCRA is the reason why local police services may no longer disclose youth records to non-government organizations such as the local YMCA for example. The fact is, such disclosure, if it was occurring, was always incorrect and contrary to the authority on the matter: The Youth Criminal Justice Act. Local organizations which may have relied on local police for such screening are left confused and perhaps now feel exposed by the realization that screening youth for criminality is not something that is generally supported by the law.

Indeed, the PRCRA provides for the disclosure of youth conviction records for all three levels of check that it prescribes: Criminal Record Check, Criminal Record and Judicial Matters Check and Vulnerable Sector Check. The requirement for disclosure is that it must be done in accordance with the provisions set out in the federal law – the Youth Criminal Justice Act. So, what are those provisions and how do they apply?

Generally, disclosure provisions for youth records are set out in Section 119(1) of the YCJA. Section 119(1) is lengthy, consisting of sub-subsections (a) through (s). Only sub-subsection (o) addresses a purpose associated to background screening; all others deal with criminal justice functions. Sub-subsection (o) states a person may be given access to a youth record if they are:

a person, for the purpose of carrying out a criminal record check required by the Government of Canada or the government of a province or a municipality for purposes of employment or the performance of services, with or without remuneration;

Note also that the YCJA prescribes various periods of time during which youth records may be accessed with these time limits being dependent on the disposition by which the criminal charge was disposed of in court. For example, for a stay of proceedings – one year, a finding of guilt for a summary conviction offence – three years, an indictable offence – five years. There are 10 different access periods that may be applied to a youth record depending on the disposition reached in court.

To sum up, here’s three key points for organizations to know:

1. Disclosure of youth records for background screening purposes is not permitted by law except for the narrow provision of federal, provincial or municipal government placement of an applicant. This has always been the case.
2. Even when the subject position is a placement within a government position, rules around periods of access to the youth records must be applied – rules that depend on the disposition of the charge in court.
3. Any other disclosure of youth records was illegal before the PRCRA was implemented and remains so.

Sterling does not expose its clients to youth record information. We have always complied with the Youth Criminal Justice Act with respect to all our processes and products. We deem the narrow exception of screening youth for government positions, combined with the complex access period provisions set out in the YCJA, as problematic and of little to no value in the context of our client’s lawful needs. It is simply “simpler” not to venture into this restricted area of disclosure given such limited application.

Local practices around information disclosure – whether for adults or youths – can vary widely by jurisdiction. Some may not be compliant with legislation, privacy or human rights. No greater evidence to support of this assertion exists than the fact that the government of Ontario saw a need to introduce legislation that compels police services in that province to adopt consistent practices. These include safeguards to prevent the inappropriate disclosure of youth records, non-conviction and mental health-related police contacts.

Sterling has always provided consistent processes that not only comply with federal laws but also with emerging provincial legislation like the PRCRA. Speak with us about how we can help your organization with centralized, compliant, consistent and secure background screening services.

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.