New background check rules in Ontario - Retail Council of Canada

What’s Happening

The Police Record Checks Reform Act came into effect in November 2018.

The legislation governs the types of record checks that can be conducted for screening purposes, defines three types of police record checks, and standardizes the type of information that can be released in each type of record check.

The Act does not say who needs to pay for the record check; that decision is up to the employer.

Types of Record Checks

There are three types of record checks that are allowed:

Criminal Record Check – includes applicable criminal convictions and findings of guilt under the federal Youth Criminal Justice Act.
Criminal Record and Judicial Matters Check – includes applicable criminal convictions, findings of guilt under the federal Youth Criminal Justice Act, absolute and conditional discharges, outstanding charges, arrest warrants, certain judicial orders.
Vulnerable Sector Check – includes the same type of information that is disclosed in a criminal record and judicial matters check as well as applicable findings of not criminally responsible due to mental disorder, record suspensions (pardons) related to sexually-based offences, and in certain circumstances, non-conviction charge related information (when a strict test is met).

About Consent

Before a police record check can be conducted about an individual, consent must first be provided by that person. The person who is the subject of the check must receive the results of their record check before they can be asked to consent that the results of that check be shared with the employer (or with the third party that requested the check in the first place).

There is an exemption to the above rule, however, when the person who is the subject of the check self-discloses to the employer (or to the third party requesting the check) their previous criminal convictions. In such a case, if the results of the record check match the self-disclosure, the police / record-check provider do not have to obtain consent of the individual before sharing the results with the employer.

Types of Information Disclosed by Record Check

Type of information disclosed	Criminal Record Check	Criminal Record and Judicial Matters Check	Vulnerable Sector Check
Criminal offence convictions, unless a pardon has been issued or granted	Disclosed. However, does not disclose summary convictions if the request is made more than five years after the date of the summary conviction.	Disclosed. However, does not disclose summary convictions if the request is made more than five years after the date of the summary conviction.	Disclosed. However, does not disclose summary convictions if the request is made more than five years after the date of the summary conviction.
Guilty findings under the federal Youth Criminal Justice Act during the applicable period of access under that act.	Disclosed. Disclosed in accordance with restrictions under the Youth Criminal Justice Act and Police Record Checks Reform Act requirements.	Disclosed. Disclosed in accordance with restrictions under the Youth Criminal Justice Act and Police Record Checks Reform Act requirements.	Disclosed. Disclosed in accordance with restrictions under the Youth Criminal Justice Act and Police Record Checks Reform Act requirements.
Every criminal offence of which the individual has been found guilty and received an absolute discharge.	Not disclosed.	Disclosed. However, not disclosed if the request is made more than one year after the date of the absolute discharge.	Disclosed. However, not disclosed if the request is made more than one year after the date of the absolute discharge.
Every criminal offence of which the individual has been found guilty and received a conditional discharge on conditions set out in a probation order.	Not disclosed.	Disclosed. However, not disclosed if the request is made more than three years after the date of the conditional discharge.	Disclosed. However, not disclosed if the request is made more than three years after the date of the conditional discharge.
Every criminal offence for which there is an outstanding charge or warrant to arrest in respect of the individual.	Not disclosed.	Disclosed.	Disclosed.
Every court order made against the individual.	Not disclosed.	Disclosed. However, does not disclose: court orders made under the Mental Health Act or under Part XX.1 of the Criminal Code (Canada) court orders made in relation to a charge that has been withdrawn restraining orders made against the individual under the Family Law Act, the Children’s Law Reform Act or the Child and Family Services Act	Disclosed. However, does not disclose: court orders made under the Mental Health Act or under Part XX.1 of the Criminal Code (Canada) court orders made in relation to a charge that has been withdrawn restraining orders made against the individual under the Family Law Act, the Children’s Law Reform Act or the Child and Family Services Act
Every criminal offence with which the individual has been charged that resulted in a finding of not criminally responsible on account of mental disorder.	Not disclosed.	Not disclosed.	Disclosed. However, does not disclose if the request is made more than five years after the date of the finding or if the individual received an absolute discharge.
Any conviction for which a pardon has been granted.	Not disclosed unless authorized under the Criminal Records Act (Canada).	Not disclosed unless authorized under the Criminal Records Act (Canada).	Not disclosed unless authorized under the Criminal Records Act (Canada).
Non-conviction information(charges that have been dismissed, withdrawn or stayed, or that resulted in a stay of proceedings or an acquittal).	Not disclosed.	Not disclosed.	Section 10 of Ontario’s Police Record Checks Reform Act outlines criteria that must be met for disclosing non-conviction information in circumstances set out in that section.

Questions?

Please feel free to contact Julian Portelli, Director of Government Relations (Ontario), at jportelli@retailcouncil.org or 416-467-3744