As of Nov. 1, employers in Ontario face new decisions when it comes to requesting police record checks for potential employees.
That’s because the government’s Police Record Checks Reform Act has come into force, looking to establish “clear and consistent rules” and protect public safety while strengthening civil liberties “by removing unnecessary barriers to employment, education and volunteer opportunities.”
“People in Ontario must not lose out on opportunities because of an inappropriate disclosure of non-criminal information,” said Marie-France Lalonde, minister of community safety and correctional services.
“It is also vitally important that we have an up-to-date, rigorous record checks process that ensures that employers have access to appropriate information.”
The move is a step in the right direction, said Abby Dreshman, director of the criminal justice program at the Canadian Civil Liberties Association in Toronto.
“What we were seeing before this law came into force was a real patchwork for practices that could vary from police service to police service in terms of what would be released on police record checks. And this does bring a measure of consistency and some evidence-based rationale to what police are releasing on different levels of checks,” she said.
“Those are very important in ensuring that employers (and) volunteer managers aren’t relying on irrelevant, discriminatory information when making hiring choices.”
3 types of checks, 2 stages of consent
The new act includes three types of police record checks — criminal record checks, criminal record and judicial matters checks, and vulnerable sector checks.
A criminal record check includes applicable criminal convictions and findings of guilt under the federal Youth Criminal Justice Act.
A 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, and certain judicial orders.
And a vulnerable sector check includes the same type of information disclosed in a criminal record and judicial matters check as well as applicable findings of not criminally responsible due to a mental disorder, record suspensions (pardons) related to sexually based offences and, in some circumstances, non-conviction, charge-related information.
Employees will also have more control over the process when it comes to releasing information to a potential employer because all requests for a police record check must now contain the concerned individual’s written consent to the check. And the results of the check must be disclosed to the potential employee before being provided to the employer, and can only be disclosed to the employer with the individual’s written consent.
The government also introduced a new exemption in the regulations that’s intended to streamline the process and alleviate some concerns as to what the employer is given, said David Foster, a labour and employment lawyer at Hicks Morley in London, Ont.
“If a check gets performed through an authorized third party, it can be done on a self-disclosure basis… so the employee would tell the record check agency if they have any criminal convictions and if they did, what the conviction was. The record check agency would then send that in to the police service and the only result that would come back from the police service is confirming if the records match that or not.”
From a timeline perspective, the standard process with that two-stage consent could now take longer because the results have to go back to the employee first, he said.
“So this new exception through the self-disclosure process can actually speed up that process because there’s no requirement for records to go back to the employee first.”
Police records are widely used as a tool to assess applications for employment, said Paula Osmok, executive director of the John Howard Society of Ontario in Toronto.
“(Previously) decision-makers who utilize police records were receiving information irrelevant to the opportunity being pursued,” she said.
“The (new act) should remove barriers and create greater levels of fairness.”
Through these checks, police have disclosed information about non-criminal and non-conviction interactions, said Osmok.
“Though most (people) don’t realize it, simply calling 911 for help during a mental health crisis can trigger a police report. So too can being stopped and questioned about a robbery in your neighbourhood. This information is often used by employers to judge a candidate’s character and as blanket screening of potential candidates.”
Revealing these non-criminal interactions has had devastating consequences, she said.
“There is little in the way of human rights protection for these types of records, and employers may not appreciate the differences between conviction and non-conviction records.”
It’s possible the new system will expedite the process for HR professionals and hiring managers as they won’t be inundated with unnecessary information, according to Osmok. And the new act standardizes what can be disclosed on a record check.
Previously, information released could vary widely, said Dreshman. In one city, a check could include a person’s convictions or guilty charges, while in another, it could include mental health apprehensions.
“We were seeing and hearing from many people who’d been really discriminated against on the basis of information that was completely irrelevant,” she said.
Implications for employers
The changes alleviate much of the burden for employers because they no longer have to worry about whether the information they receive is relevant, said Alexandra Hobson, an associate at Sultan Lawyers in Toronto.
“It will be a bit more standardized in terms of what information they’re given... which is, of course, one of the big problems for employers because they have to be careful under the Ontario Human Rights Code if they receive information that someone has been connected by has received a pardon. That cannot be a source of discrimination under human rights law, it’s specifically one of the enumerated grounds for which discrimination is prohibited.”
As to deciding which check to request, that should be logically assessed on a case-by-case basis, she said.
“You want to make sure there’s a justification for which level you’re asking for,” said Hobson.
“Pointing to a solid policy that shows there’s a logical connection between the role or industry and the kind of criminal record check that is requested is really something that’s going to save employers a lot of headaches later on in terms of trying to retroactively explain away arbitrary behaviour or potential invasions of privacy by the people conducting these interviews and screening potential employees.”
Employers should make sure they’re not asking for more than they need, said Foster.
“It’s important not to overshoot in those cases. They should consider the nature of the role, what type of information would be relevant to them assessing the candidate’s ability to perform the job. And, in most cases, a criminal records check or criminal records and judicial matters (check) would be more than sufficient.”
It’s expected similar restrictions will make their way to other parts of Canada, he said.
“It’s telling that it received all-party support here, so it’s not a partisan issue.”
But the new rules should serve as a note of caution that a police records check is not a very good screener when it comes to figuring who is and who isn’t going to be a reliable employee, said Dreshman.
“The social science evidence is really clear there’s no reliable connection between a person’s criminal record and their likelihood to commit a crime while on the job or their job performance... It’s a tool, but I do think it’s a tool that’s relied on disproportionately to what it’s actually useful for.”
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