On November 1, 2018 the Police Record Checks Reform Act (the “Act”) will come into effect. This legislation has the potential to create new challenges and delays for Developmental Services (DS) agencies seeking to verify the criminal background of job candidates.

The objective of this legislation was to address systemic barriers to employment, education, volunteer work or other life opportunities for people who have had interactions with the criminal justice system. The Act sets out the province’s first-ever comprehensive set of standards to govern police record checks in Ontario and limits the release of information related to pending charges, court orders, conditional discharges and non-conviction information. The Act also changes the process for requesting police record checks, the consents required and mandates that results be provided to the person that is the subject of the check before being released to any other person or a prospective employer.



There are currently exemptions for certain sectors including, among others, adoption, residential and foster care under Child, Youth and Family Services Act, 2017 , police services, correctional institutions, financial institutions, justice sector, and lottery and gaming, and more limited exemptions for schools and child care providers. Unfortunately, no similar exemption is currently available for supports or services under the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act (i.e. developmental services organizations).

Under the new legislation, the records available and process for obtaining a Criminal Records Check (CRC) or a Criminal Records and Judicial Matters Check (CRJMC) will change. The information available will include: any convictions information, outstanding warrants and charges, conditional discharges in the last 3 years, and court orders under the Mental Health Act that haven’t been withdrawn, but does not include restraining orders made against the individual under the Family Law Act, the Children’s Law Reform Act or the Child and Family Services Act).  

Under the Act, a VSC will provide all of the same information as CRC and a CRJMC, but will also disclose non-conviction information such as every criminal offence with which the individual has been charged that resulted in a finding of not criminally responsible on account of mental disorder. However, the non-conviction information that is more pertinent to work in the DS Sector will be more difficult to obtain under a new 3-part test that will be applied before any non-conviction information is released.

 

The rigorous nature of the test makes is less likely that police record check providers will disclose non-conviction information during a vulnerable sector check and raises some very troubling questions. For instance: shouldn’t one incident of “predatory” behaviour for which a person was not technically convicted be enough? how many people must suffer and be victimized before a “pattern” exists? Furthermore, the exclusion of restraining orders made against the individual under the Family Law Act, the Children’s Law Reform Act or the Child and Family Services Act) poses real concerns given the nature of many of the relationships and work settings in the DS Sector, including, for example, Host Family arrangements and residential care worker relationships.

 

To make things even more troubling, even where a police records check provider considers this test to be satisfied, the person to whom the information relates will have the right to seek a reconsideration before any information is shared with the prospective employer. This process could take up to 75 days, if not longer. A prospective employer will have no opportunity to share its perspective on whether information should be shared, to challenge the refusal of disclosure in the first place, or to oppose the person’s request for reconsideration of a decision to share the information. In fact, it does not appear that the request for reconsideration will even be disclosed the prospective employer, though significant delays in processing VSCs would present a red flag.

In our opinion, the Developmental Services Sector (including families and agencies engaging workers to provide care and support for people with developmental disabilities) should be exempt from this new legislation, in the same way that other sectors supporting vulnerable people are exempt. The Act provides for the possibility of additional regulatory exemptions and we believe this should be a priority.

Until then, from a procedural perspective, agencies and families wishing to hire a worker to support a person with a disability should generally be requiring that candidates provide a VSC at the time of offer and under no circumstances should a candidate be permitted to work alone with people supported until your agency has received a satisfactory VSC. This applies equally to staffing agency/temp agency workers. 

The process requires the consent of the person about whom you are seeking the VSC, an opportunity for the candidate to review the results, and seek alterations before you see the results, as well as requests for reconsiderations of the inclusion of non-conviction information that indicates predatory tendencies – i.e. the information most valuable to a DS Sector agency. As always when accepting a copy of a VSC directly from a candidate instead of the police force, employers should be wary of altered or modified documents.

In addition, agencies should also anticipate that the extra level of consent built into the procedure as well as the opportunity for the person to review and request reconsideration of the results may result in some delays in the processing of police record checks. Agencies should plan their on-boarding and staffing appropriately and continue to carefully vet VSCs when received.

Finally, it is important for anyone who is seeking a VSC to understand their legal obligations under the Human Rights Code (keeping in mind recent proposals which would see the addition of police records as a prohibited ground of discrimination – See Bill 35, the Human Rights Code Amendment Act, 2018).

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