After three years of sitting in legal limbo, the Police Record Checks Reform Act (“Act”) came into force on November 1, 2018. The Act standardizes the procedures for conducting police record checks and the types of information these checks will disclose. The Act places clear limits on the type of information reported and how employers may receive the requested information.
There are now three standard types of police record checks: the criminal record check; the criminal record and judicial matters check; and, the vulnerable sector check. For more information on when and how to conduct these types of checks and other background checks see our previous blog post here.
Each of these police record checks will disclose particular information in accordance with the Act. Below is a table outlining the specific information provided by each type of police record check:
|Type of Information||Criminal Record Check||Criminal Record and Judicial Matters Check||Vulnerable Sector Check|
|Criminal offence for which no pardon has been granted||Disclosed; except for summary convictions that occurred at least 5 years prior to the police record check request.||Disclosed; except for summary convictions that occurred at least 5 years prior to the police record check request.||Disclosed; except for summary convictions that occurred at least 5 years prior to the police record check request.|
|Criminal offence for which a person was found guilty and received an absolute discharge (where a person is found guilty but discharged with no conditions)||Not disclosed.||Disclosed, unless the request is made at least 1 year after the absolute discharge.||Disclosed, unless the request is made at least 1 year after the absolute discharge.|
|Criminal offence for which a person was found guilty and received a conditional discharge (ex. probation)||Not disclosed.||Disclosed, unless the request is made at least 3 years after the conditional discharge.||Disclosed, unless the request is made at least 3 years after the conditional discharge.|
|Every criminal offence for which there is an outstanding arrest warrant||Not disclosed.||Disclosed.||Disclosed.|
|Every court order||Not disclosed.||Disclosed, with exceptions for mental health and family law matters.||Disclosed, with exceptions for mental health and family law matters.|
|Every offence that a person was charged with but found not criminally responsible on account of mental disorder||Not disclosed.||Not disclosed.||Disclosed, unless the request is made at least 5 years after the finding or if the person received an absolute discharge.|
|Any conviction for which a pardon was granted.||Not disclosed.||Not disclosed.||Not disclosed.|
Standardized Disclosure Procedure
If an employer wishes to have any of these types of checks conducted for one of their employees, they must obtain the employee’s written consent to have the specific type of check conducted.
After the police record check is conducted the police record check provider can only disclose the results to the individual. After the individual has a chance to review the results, they can provide their written consent to have the results disclosed to the employer.
The results of a criminal record check may be sent directly to the employer if the following criteria are met:
- the employee signs a declaration outlining their Canadian criminal conviction history;
- prior to conducting the check, the individual provides their written consent to conduct the check and have the results disclosed to a specific employer; and,
- there is a match between the declaration and the results of the criminal record check.
If there is no match between the declaration and the criminal record check, the employer will be advised that it is not possible to complete the check.
Vulnerable sector checks cannot be disclosed directly to the employer using the above process and additional rules apply when dealing with a criminal record and judicial matters check.
The foregoing is for informational purposes only, and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyer’s by email or telephone.