By: David G. Bayliss – August 31, 2019. RECORDS DISCLOSURE IN ONTARIO[1]

The disclosure to third parties of an individual’s police records has become exponentially more problematic with the advent of interconnected digital databases.  With today’s ease of storage and access to personal records, disclosure of private information in the hands of law enforcement agencies takes very little effort.

As supply begets demand, everyone is asking for background checks—employers, volunteer organizations, social clubs, landlords, educational institutions etc.  Companies specializing in facilitating the hunger for candidate background information proliferate. The number of police records being disclosed to third parties in Canada is mindboggling. The Canadian Civil Liberties Association (CCLA), in its seminal 2012 report Presumption of Guilt? The Disclosure of Non-Conviction Records in Police Background Checks[2], noted:

  • In 2010 alone, Calgary and Edmonton police ran over 140,000 individual background checks

The consequences for individuals affected can be devastating; nightmare stories abound[3].  Employment and volunteer applications are rejected, housing refused, club or organization membership vetoed, even school admission declined.  Often, the individual affected may not know that incorrect or unsubstantiated police records are the cause of their serial misfortune.  The problem, in part, stems from a misunderstanding of what a “police record” is. Many assume a police record means a criminal record, that is, a record of actual convictions for criminal offences. Hence, it is also assumed that, if there have been no findings of guilt, there is nothing to fear when a potential employer asks for a police background check. Not so, as the CCLA also wrote:

  • Contrary to popular belief, however, the information that is revealed in these background checks is not limited to criminal convictions. A wide range of “non-conviction” records can be disclosed, including information about criminal charges that were withdrawn, cases where an individual was found not guilty or even complaints where charges were never laid. Even non-criminal interactions, such as experiences with police due to mental health needs, are recorded in police databases and may show up on background checks.[4]

To this list of what can get you onto a police data base could be added—making a call to 911, being present when the police attend on a 911 call, being interviewed as a person of interest or witness to a crime, having a dispute with a cranky neighbour who reports to the police (even if the police don’t tell you about it) or making a missing persons report. Any interaction or report in which the police have your name may result in creation of a narrative that is digitally filed. The information in your police records will not necessarily be accurate.

Compounding the problematic nature of non-conviction records, has been the lack of a consistent policy or legally binding framework to deal with the release and dissemination of information in the hands of the police.  While individual police services have begun to develop internal guidelines for the handling of non-conviction records, the decision as to whether and what records are released is a haphazard process in which local police forces and the personnel manning their records departments have great discretion.  The results of background check requests can vary widely.  In Toronto a records request may not be granted, but in Oshawa the same request might be. Or vice versa; depending on who’s on duty when the request is made.

The Police Record Checks Reform Act (Ontario)

In November of 2018, after three years on the parliamentary to-do list, The Police Record Checks Reform Act[5] (PRCRA, the Act) became law in the Province of Ontario. While the PRCRA is by no means a complete solution to the problem of non-conviction records disclosure, it does provide some structure and consistency to the records disclosure process within which police services, organizations and individuals must operate in the province of Ontario.

Take-aways from the PRCRA

  • The Act applies to:
    • any Ontario police force having access to the Canadian Police Information Centre (CPIC) databases (and other entities specifically designated or authorized by the Act) (see Section 1 definition of “police record check provider”, and Subsection 2(4)).
    • Any person who desires a police record check to screen for “suitability for employment, volunteer work, a licence, an office, membership in any body or to provide or receive goods or services; or for the purposes of assessing his or her application to an educational institution or program” (Section 2, 5).
    • Subsection 2(2) exempts specified government officials from compliance with the Act and permits other exemptions to be designated in the Regulations to the Act. Regulation 347/18[6] imports a long list of exemptions to the entire Act or discrete parts of the Act for specified entities or in relation to specified positions being applied for. This regulation must be reviewed by anyone applying for a position to determine if the PRCRA applies to their specific situation.
  • Non-conviction information” is narrowly defined as “information concerning the fact that an individual was charged with a criminal offence if the charge (a) was dismissed, withdrawn or stayed, or (b) resulted in a stay of proceeding or an acquittal”. (subsection 1 (1)).
  • The Act prohibits the disclosure of any information in possession of the police that is not either a finding of guilt or related to a criminal offence actually charged (non-conviction information). The countless other records compiled in day-to-day police work, and which concerned the CCLA and other privacy advocates, cannot be disclosed in response to background check requests. (Section 9) (subject to Regulation 347/18 exemptions to the Act-see above)
  • Three levels of police background checks can be requested under the Act:

 

    • Level 1—Criminal Record Check (actual findings of guilt);
    • Level 2—Criminal Record and Judicial Matters Check; or
    • Level 3—Vulnerable Sector Check.

 

  • The information that can be disclosed pursuant to any level of background check is limited to what is specified in the Schedule to the Act:

SCHEDULE

Mobile Users: Turn phone to landscape mode for complete view of Schedule.

 
Item Type of Information Criminal record check Criminal record &  judicial matters check Vulnerable sector check
1. Every criminal offence of which the individual has been convicted for which a pardon has not been issued or granted. Disclose. However, do not disclose summary convictions if the request is made more than five years after the date of the summary conviction. Disclose. However, do not disclose summary convictions if the request is made more than five years after the date of the summary conviction. Disclose. However, do not disclose summary convictions if the request is made more than five years after the date of the summary conviction.
2. Every finding of guilt under the Youth Criminal Justice Act (Canada) in respect of the individual during the applicable period of access under that Act. Disclose. Disclose. Disclose.
3. Every criminal offence of which the individual has been found guilty and received an absolute discharge. Do not disclose. Disclose. However, do not disclose if the request is made more than one year after the date of the absolute discharge. Disclose. However, do not disclose if the request is made more than one year after the date of the absolute discharge.
4. Every criminal offence of which the individual has been found guilty and received a conditional discharge on conditions set out in a probation order. Do not disclose. Disclose. However, do not disclose if the request is made more than three years after the date of the conditional discharge. Disclose. However, do not disclose if the request is made more than three years after the date of the conditional discharge.
5. Every criminal offence for which there is an outstanding charge or warrant to arrest in respect of the individual. Do not disclose. Disclose. Disclose.
6. Every court order made against the individual. Do not disclose. Disclose. However, do not disclose court orders made under the Mental Health Act or under Part XX.1 of the Criminal Code (Canada). Do not disclose court orders made in relation to a charge that has been withdrawn. Do not disclose restraining orders made against the individual under the Family Law Act, the Children’s Law Reform Act or the Child, Youth and Family Services Act, 2017. Disclose. However, do not disclose court orders made under the Mental Health Act or under Part XX.1 of the Criminal Code (Canada). Do not disclose court orders made in relation to a charge that has been withdrawn. Do not disclose restraining orders made against the individual under the Family Law Act, the Children’s Law Reform Act or the Child, Youth and Family Services Act, 2017.
7. Every criminal offence with which the individual has been charged that resulted in a finding of not criminally responsible on account of mental disorder. Do not disclose. Do not disclose. Disclose. However, do 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.
8. Any conviction for which a pardon has been granted. Do not disclose unless disclosure is authorized under the Criminal Records Act (Canada). Do not disclose unless disclosure is authorized under the Criminal Records Act (Canada). Do not disclose unless disclosure is authorized under the Criminal Records Act (Canada).
9. Any non-conviction information authorized for exceptional disclosure in accordance with section 10. Do not disclose. Do not disclose. Disclose. Set out the information in the prescribed form (if applicable).

Frequently Asked Questions About the PRCRA and Police Records Disclosure

How can I find out what records about me are in police databases?

A :The PRCRA (Section 7) permits an individual to request a police records check for their own records. Note that the results of such a check would only return actual findings of guilt or non-conviction information as defined in Section 1 (criminal charges that did not result in convictions). As of the time of this writing, the fee for a personal records check is $75.  An individual may also apply for a more comprehensive records check about him or herself under the Ontario Freedom of Information and Protection of Privacy Act[7] or the Municipal Freedom of Information and Protection of Privacy Act[8]  (or under equivalent federal legislation).

Does the PRCRA allow me to ask for information about me in police databases to be modified?

A: Yes, but to a limited degree. Section 15 of the Act permits an individual to request that information in police databases be corrected if they believe there is an “error or omission” in the information. Section 10 (and an associated regulation to the Act) outlines a detailed process for challenging information that might be released in response to a vulnerable sector check.

Does the PRCRA permit me to ask for my information in police databases to be removed?

A: The PRCRA does not provide for expunging of information from police databases. However, pursuant to the Canadian Charter of Rights and Freedoms, requests can be made directly to police services for destruction of records such as fingerprints, mugshots and CPIC entries, in cases where a criminal offence has been charged but no finding of guilt is made. Refusals by police services to expunge such records can be challenged in court[9].

What is a “vulnerable person” according to the PRCRA and when is a vulnerable sector check likely to be required?

A:The PRCRA defines a vulnerable person as “a person who, because of his or her age, a disability or other circumstances…is in a position of dependency on others or is otherwise at greater risk than the general population of being harmed by a person in a position of trust of authority towards them”. Although the PRCRA does not specify who can request a vulnerable sector check, it has historically been required when an individual is applying to work with young people, the elderly, the disabled or other persons or groups who fall within the definition of vulnerable person.

Is my consent required for the disclosure of my records in a police database?

A: Subsection 8(3) of the Act prohibits a police records check unless the subject of the records has given written consent to the specific type of police records check that has been requested. Section 12 requires that the results of the search be provided to the subject of the search first and not provided to a third party unless the subject consents.

If I have an outstanding criminal charge (one that has not yet been decided by a court), can it be disclosed in a police records check?

A: Field 5 of the Schedule to the PRCRA permits disclosure of an unresolved criminal warrant or prosecution in level 2 and 3 records checks. This appears to be an anomaly that is not sanctioned by the wording of the PRCRA (see discussion below).

Can an absolute or conditional discharge be disclosed in a police records check?

A: Yes, but only within 1 year of an absolute discharge and within 3 years of a conditional discharge and only in response to a level 2 or 3 check (see fields 3 and 4 of the Schedule to the Act).

Can a peace bond be disclosed in a police records check?

A: In most cases a peace bond cannot be disclosed. A peace bond is a court order and is therefore covered by field 6 of the Schedule. It is prohibited from disclosure in a level 1 records check. Since a peace bond is almost always imposed in connection with a charge that has been withdrawn, disclosure will usually be prohibited in level 2 and 3 records checks as well. Although a relatively rare occurrence, a peace bond can be imposed in relation to a charge that has been stayed or even after a finding of not guilty. In such cases, the bond would be disclosable in level 2 and 3 checks.

Can a conviction for which I have received a pardon (or records suspension) be disclosed on a police records check?

A: No. Do not disclose unless disclosure is authorized under the Criminal Records Act (Canada). (See field 8 of the Schedule to the Act).

Can records relating to persons under the age of 18 years be disclosed on a police records check?

A: According to field 2 of the Schedule to the PRCRA, on all 3 levels of police records checks, any “finding of guilt” against a person under the age of 18 may be disclosed “during the applicable period of [records] access under the [federal] Youth Criminal Justice Act (YCJA)[10]. Accordingly, any record of proceedings against a young person which did not result in a finding of guilt is not disclosable.  Moreover, the PRCRA may conflict with the federal statute such that even findings of guilt may not be legally disclosable either.  Part 6 (Sections 110 to 129) of the YCJA is a self-contained regime for the collection and disclosure of YCJA records. This regime does not contemplate disclosure of youth records to private persons or entities requesting police records checks. One important exception to this generality is that Part 6 of the YCJA will cease to apply to YCJA records if the young person is sentenced as an adult (this requires an order by a Youth Court Judge) or, in some circumstances, if the young person is later convicted of an offence committed as an adult. In these scenarios, any conflict with the provincial PRCRA evaporates.  The YCJA privacy and disclosure provisions are complex; legal advice should be obtained if you have questions about disclosure of youth court records where a finding of guilt was made.

Practical problems with the PRCRA regime

From the perspective of individuals whose records are of interest to a potential employer or other service provider, a practical concern with the PRCRA centres on the issue of consent. While the Act has provisions requiring the subject’s consent to the disclosure of the results of police records checks (see FAQs above), this is a pyrrhic victory in practice.

It is self-evident that position applicants will not get very far in the interview process if they refuse to consent to a potential employer’s request that they submit to a background check.  The PRCRA does not prohibit such consent requests, which continue to be a standard clause of professionally drafted employment or service applications. If you do not provide your consent to the employer, you don’t get the job. Other jurisdictions have addressed this inequity by prohibiting the potential employer from requesting police background checks until after a conditional offer of employment is made to the applicant[11],[12]. This approach ensures that candidates are honestly screened based on their qualifications before their past indiscretions can be considered.

The PRCRA is silent as to what level of police records check interested parties may request.   Thus far, no regulation to the Act addresses the issue either. The Act leaves the decision to the discretion of the person or organization seeking the background check. Some employers and service providers will be responsible in exercising this discretion; others may not be.  There will be a natural inclination to default to the most intrusive level of background check and the Act contains nothing to deter this tendency. Section 10 of the Act, dealing with vulnerable sector checks, provides criteria to be considered before making the ‘exceptional disclosure’ of non-conviction information, but does not include the type of employment, position or service being applied for as one of the considerations. Further, it is difficult to envisage scenarios in which an employer would prefer the level 1 criminal records check over the level 2 criminal records and judicial matters check.

The disclosure of actual criminal convictions remains unregulated. The PRCRA permits disclosure of criminal convictions as a matter of course, unless a pardon or records suspension has been granted.  Other jurisdictions have recognized that automatic disclosure of prior convictions is inappropriate and have passed laws to limit the practice[13].

The PRCRA also permits the disclosure of an outstanding criminal charge, except in a level one Criminal Record Check. This seems anomalous. First, an outstanding charge is disclosable in a level 2 Criminal Record and Judicial Matters Check and there are no restrictions on when the level 2 check can be requested. This renders the level 1 Criminal record check prohibition meaningless.  Second, an outstanding criminal charge does not fall within the definition of non-conviction information in Section 1. Since non-conviction information is the only information that can be disclosed beyond actual findings of guilt according the PRCRA, the inclusion of outstanding charges in the Schedule is not technically authorized by the Act. More fundamentally, a charged person is presumed to be innocent until proven guilty beyond a reasonable doubt.  From this perspective, it seems unprincipled to permit an outstanding charge to be relied on for any purpose.

Conclusion

The PRCRA is an improvement over the Wild West of police records disclosure that preceded it, but it is hardly a cutting-edge document when it comes to balancing  privacy rights and community safety concerns.

Helpful Links

Canadian Civil Liberties Association—what you need to know about the Police Records Checks Reform Act
https://ccla.org/need-know-new-police-record-checks-reform-act/

Canadian Civil Liberties Association—non-conviction records
http://www.ccla.org/recordchecks/doc/Non-Conviction%20Records.pdf

Office of the Privacy Commissioner of Canada
https://www.priv.gc.ca/en/privacy-topics/privacy-laws-in-canada/02_05_d_15/

Collateral Consequences of Criminal Conviction and Restoration of Rights in American jurisdictions
http://ccresourcecenter.org/2019/06/26/national-survey-of-law-enforcement-access-to-sealed-non-conviction-records/

Endnotes

[1] This article is written for consumption by persons not trained in the law.  It is intended for the layperson interested in general information about the subject. It is not intended to be legal advice for a specific legal problem. If you have a specific legal problem, call a lawyer.  Initial consultations, by phone or in person, are often free of charge.

[2] https://ccla.org/cclanewsite/wp-content/uploads/2015/02/Presumption-of-Guilt.pdf  at, p. 2

[3] See CCLA Non-conviction records-The Human Story https://ccla.org/recordchecks/humancost/

[4] Note 2 above at p. 2

[5] https://www.ontario.ca/laws/statute/15p30

[6] https://www.ontario.ca/laws/regulation/180347

[7] https://www.canlii.org/en/on/laws/stat/rso-1990-c-f31/latest/rso-1990-c-f31.html

[8] https://www.canlii.org/en/on/laws/stat/rso-1990-c-m56/latest/rso-1990-c-m56.html

[9] R. v. Dore https://www.canlii.org/en/on/onca/doc/2002/2002canlii45006/2002canlii45006.html?resultIndex=2

[10] https://laws-lois.justice.gc.ca/eng/acts/Y-1.5/index.html

[11] California Laws on Employer Use of Arrest and Conviction Records http://ccresourcecenter.org/2019/06/26/national-survey-of-law-enforcement-access-to-sealed-non-conviction-records/

[12] Washington Laws on Employer Use of Arrest and Conviction Records https://www.nolo.com/legal-encyclopedia/washington-laws-employer-use-arrest-conviction-records.html

[13] https://www.nolo.com/legal-encyclopedia/state-laws-use-arrests-convictions-employment.html