Comments:

The Criminal Records Act is a federal piece of legislation that regulates, among other things, the procedure for record suspensions (or what were formally known as “pardons”). Section 6.3 of the Criminal Records Act allows a police force “or other authorized body” to disclose the fact of a record suspension in limited circumstances (i.e. in relation to an applicant for a paid or volunteer position with an organization responsible for the well-being of a child or vulnerable person). Using this definition for “authorized body” harmonizes this legislation with the Criminal Records Act.

Comments:

The purpose of this legislation is to achieve a balance between personal privacy and protection of the public. Personal privacy is protected by limiting the disclosure of non-conviction information to circumstances where it is necessary and relevant. The public is protected by allowing for the disclosure of sensitive information in appropriate circumstances.

Generally speaking, the legislation aims to limit the disclosure of non-conviction information. There is an exception for the disclosure of non-conviction information in circumstances where the applicant for a record check will be working with vulnerable persons and has a history of relevant non-conviction information (see s. 10). Children are a vulnerable group that require additional protection as compared to the ordinary public, such that there is a need to define this subgroup within the legislation.

Comments:

This definition limits the application of the disclosure regime to conviction and non-conviction information related to violations of federal statutes. Provincial/territorial offences, which are typically administrative and/or outside the scope of relevancy, are excluded from the disclosure regime.

The term “criminal offence” is used within the definition of “non-conviction information” in section 1. It is also found within the definition of “straight summary conviction” in subsection 1(3) of the Schedule.

Comments:

This definition is an essential component of the legislation as it defines the parameters of what non-conviction information may be disclosed once the disclosure criteria in section 10 are met. This definition limits the scope of nonconviction information that may be disclosed to matters which resulted in a criminal charge. This definition purposefully eliminates the disclosure of nonconviction information which did not result in criminal charges. This is an important limitation as it eliminates the most prejudicial types of non-conviction information from the disclosure regime. These prejudicial files include police interactions involving things like drug overdoses, mental health apprehensions, files where an individual is merely suspected of wrongdoing, etc. These prejudicial files are entered into police databases without much oversight and the person to whom they apply has little to no ability to have the file reviewed, changed or challenged. Limiting non-conviction information to matters which resulted in charges recognizes that charge approval standards involve some modicum of oversight, as well as a degree of analysis, thereby enhancing the reliability and relevance of this information.

Comments:

This definition, along with ss. 2(1) and 8, limit the kind of record checks that may be performed to those prescribed under the legislation. This will provide consistency across the jurisdiction in the type and manner of record check that may be performed, eliminating the unfairness that arises when different police forces apply different criteria when completing these checks.

Comments: This definition sets out who is permitted to access police databases for the purposes of conducting record checks under the legislation.

In this part of the act and elsewhere, the word “systems” is used to describe the online database connected to the Canadian Police Information Centre. In the Police Record Checks Reform Act, 2015, the word “database” is used instead. The ULCC Working Group on Criminal Record Checks was advised by Public Safety Canada that the word “systems” is more accurate.

Comments:

Under section 10, non-conviction information may only be disclosed when certain criteria are met. The criteria include a requirement that the non-conviction information in issue relate to a charge where the alleged victim was a “child” or “vulnerable person”. This definition provides guidance to police record check providers regarding the meaning of “vulnerable person” for the purposes of assessing the criteria in section 10.

This definition is identical to the definition of “vulnerable person” in subsection 6.3(1) of the Criminal Records Act. This will help harmonize the two pieces of legislation and adds clarity to the application of the legislation.

Comments:

The uniform act has been drafted using the same expressions related to police forces as Ontario’s Police Record Checks Reform Act, 2015. Under subsection 1(2) of the Police Record Checks Reform Act, 2015, the Ontario legislation specifies that these expressions have the same meaning as in the Police Services Act, an Ontario policing act. Other provinces may have policing acts which use different terminology. Jurisdictions may consider using this subsection to clarify the meaning of certain terms through a cross-reference to their policing act. If the jurisdiction uses different terms related to police forces, some further amendments to the act may be required to harmonize the wording of this act with other statutes.

For example, in British Columbia, the Police Act defines the leader of a municipal police department as the “chief constable”. In Ontario, the leader of a municipal police force is defined as the “chief of police”. The words “chief of police” are used in section 8 of the legislation and within the definition of “police record check provider” in section 1.

Comments:

This subsection identifies in what circumstances a conviction under the Contraventions Act will become disclosable under the legislation as a “criminal offence”. Disclosure is limited to convictions following a trial when the charge was proceeded by way of indictment. In other words, the legislation limits disclosure to only the more serious forms of convictions under the Contraventions Act.

Comments:

Sections 717.2 and 717.3 of the Criminal Code relate to records kept in relation to criminal charges that are resolved by way of alternatives measures (also known as “diversion”). In certain circumstances, a criminal charge will be withdrawn or stayed after an accused successfully completes a diversion program. This subsection prevents information recorded during this process from becoming disclosable under the act as “non-conviction” information. This provision will foster open and candid participation in diversion programs, as accused persons will be assured that this information will not be unnecessarily disclosed in the future should they successfully complete their diversion program.

Comments:

This subsection defines the scope of the legislation’s application. It clarifies that the legislation is focused on record checks performed for routine purposes such as backgrounds checks for volunteer or employment positions, membership in any body, and applications to educational institutions. Importantly, the legislation does not impact the ability of the police or other authorized bodies to conduct background checks for other legitimate purposes such as police investigations.

Comments:

This subsection allows each jurisdiction to incorporate exemptions to the regime where appropriate. In Ontario, this section has been used to exclude from the legislation’s scope record checks performed for, among other things, the purposes of: (i) assessing the suitability of an individual applying for custody of a child that is not their biological child; (ii) processing of an individual’s request to change their name legally; (iii) searches requested by sheriffs under the provincial Juries Act; (iv) searches conducted in relation to the administration of the Firearms Act; (v) searches required as part of Crown Counsel’s duty to make disclosure to the accused about witnesses and other relevant persons in criminal cases.

With respect to the exception regarding Crown Counsel’s duties in making disclosure, Ontario has included a further subsection clarifying that the exception applies to the Attorney General’s functions in prosecuting both federal and provincial offences (see subsection 2(3) of the Police Record Checks Reform Act, 2015). This may be a sensible provision to consider should each jurisdiction agree to exempt Crown disclosure obligations as part of their drafting of subsection 2(2).

Comments:

This subsection ensures that the legislation applies to information that may be obtained by a police record check provider from other jurisdictions across Canada.

Record checks rely predominantly on digitally recorded information that is easily shared across provincial and territorial boundaries. As such, for the legislation to remain effective, it must apply to data obtained by police forces within the jurisdiction, but also anything that may be received from other jurisdictions that are not governed by similar legislation.

Comments:

This section aims to further clarify the scope of the legislation. Nothing in the legislation will affect existing disclosure powers as set out in the acts referred to in the section, which are governed by their own criteria and exceptions. Specifically, subsection 4(a) recognizes the paramountcy of federal legislation that may impact upon record checks.

Subsections (b), (c) and (d) attempt to harmonize the act with other relevant legislation. For example, in Ontario, the Municipal Freedom of Information and Protection of Privacy Act and the Freedom of Information and Protection of Privacy Act are specifically mentioned under subsections (b) and (d), and the Police Services Act is mentioned under subsection (c). Under subsection (b), clauses 42(1)(f) and (g) of the Freedom of Information and Protection of Privacy Act are also specifically mentioned. Clauses 42(1)(f) and (g) are concerned with the sharing of information between law enforcement agencies. Other freedom of information acts contain similar clauses that jurisdictions may wish to specifically recognize in this part of the uniform act.

Comments:

Sections 5 and 6 require that all record checks subject to the legislation be performed in accordance with the legislation’s requirements. These sections ensure consistency in the manner and type of record checks that may be performed in the jurisdiction. One of the main criticisms of the status quo across Canada is that record checks are performed on an ad hoc basis, often with inconsistent search criteria and results from jurisdiction to jurisdiction, and even within a jurisdiction from police detachment to police detachment. Sections 5 and 6 will require everyone who falls within the scope of the legislation to comply with its requirements.

Comments:

Subsections 7(1), (2) and (3) set out the procedure to be followed to request a record check. The legislation allows both individuals and organizations to request a record check so long as the request is made in writing and its follows the prescribed requirements under the legislation. Subsection (4) requires the applicant to request one of the three kinds of checks provided for under section 8 of the legislation. Subsection (5) anticipates that all record checks will be at a cost to be borne by the applicant.

Comments:

This section limits and defines the three kinds of checks that will be permitted under the legislation. The list is exhaustive and is meant to bring consistency to the practice. This section must be read in conjunction with the Schedule, which sets out the kinds of records that may be disclosed under each type check. This section is important to standardizing record checks across the jurisdiction and brings much needed clarity and predictability to the process.

Comments:

This subsection ensures that no record check is done on an individual without that person’s consent. The legislation also requires that the individual consent to the “particular type of check” being requested. This will prohibit an employer or institution from obtaining a more intrusive type of record check without the applicant’s knowledge and consent.

Comments:

Read together with section 19, this section makes it an offence to disclose information beyond that which is permitted to be disclosed in the Schedule. This is a critical component of the legislation which protects the privacy of individuals subject to a record check. The section also requires police record check providers to adhere to the Schedule, thereby adding consistency and predictability to the process.

Comments:

Subsections 10(1) and (2) govern the circumstances under which “non-conviction information” may be disclosed. Non-conviction information may only be disclosed in response to a “vulnerable sector check” and only where the three criteria for disclosure in subsection (2) are met. The criteria are designed to limit the disclosure of non-conviction information to situations where the information may be considered truly relevant, such that it outweighs society’s interest in protecting privacy and the presumption of innocence. The criteria achieve this balance by limiting disclosure to circumstances where the non-conviction information relates to a relevant charge (as set out in the Regulations), and where the alleged offence involves a child / vulnerable victim, and where there are reasonable grounds to believe that the person in question has been engaged in behaviour indicating a risk of harm to a child or vulnerable person. To ensure consistency in the application of this final criterion, six factors are set out to help define what may constitute a behaviour that indicates a “risk of harm”.

These subsections will ensure that non-conviction information is not disclosed in routine record checks. These subsections also protect against the disclosure of irrelevant non-conviction information when a “vulnerable sector check” is performed.

In Ontario, the provincial government has proposed regulations for the Police Record Checks Reform Act, 2015, including a list of offences to be considered under subsection 10(2) of the legislation. The list of proposed offences includes crimes involving violence, as well as offences of sexual deviation. Other offences which speak to an individual’s trustworthiness are also included (e.g. theft, fraud, etc.).

The wording of subparagraph 10(2)(c) is slightly different than the Ontario act. The Ontario act requires reasonable grounds to believe that the person has engaged in a “pattern of predation” indicating risk. The less stringent standard in the uniform act was suggested following the plenary debate at the 2018 conference.

Comments:

This subsubsection requires police record check providers to clearly distinguish disclosable non-conviction information from conviction information. This should assist in ensuring that non-conviction information is not confused for an actual criminal conviction. There are important distinctions between the two kinds of records that ought to be apparent on the face of the document when such disclosure is authorized.

Comments:

Subsections (4) and (5) set out the requirement for a “reconsideration” process. Reconsideration allows the applicant to make submissions to the police record check provider regarding whether the non-conviction information meets the criteria for exceptional disclosure in subsection 10(2). Reconsideration affords a measure of procedural fairness which helps ensure that only truly relevant non-conviction information is permitted to be disclosed.

The reconsideration process, unlike the process referred to in section 15, does not necessarily involve disputing the accuracy of the information, but rather whether the information should be included in the vulnerable sector check having regard to the criteria set out in section 10.

In Ontario, the Ministry of Community Safety and Correctional Services has proposed regulations for the Police Record Checks Reform Act, 2015 setting out the requirements for their “reconsideration” process.

Comments:

The ULCC decided to leave subsection 10(6) in square brackets for each jurisdiction to consider. It was a proposal suggested at the 2018 conference and is intended to provide the police with an additional tool to protect individual privacy in circumstances where it may be warranted.

This subsection is arguably needed because the act places no limitation on who may request a vulnerable sector check. As such, it is possible, if not likely that some employers and institutions may require individuals to conduct the most intrusive kind of record check, even though they will not be working with children or vulnerable persons. To address this issue, subsection 10(6) would allow police record check providers to decline to disclose non-conviction information otherwise authorized to be disclosed where it is not relevant to the job or position being applied for. The language is permissive, ultimately leaving the decision to the discretion of the police record check provider.

Without subsection 10(6), an individual could theoretically be asked by an employer for a vulnerable sector check, and have non-conviction information disclosed about them, even though he or she would not be working with children or vulnerable persons. In practice, this would mean that the employer could be entitled to non-conviction information about the individual if the criteria in section 10 were met, but would not be entitled to receiving information about relevant pardoned offences due to section 6.3 of the Criminal Records Act (which prohibits the disclosure of such information in these circumstances because the position being applied for does not relate to children or vulnerable persons). In other words, without subsection 10(6), an employer could receive unproven allegations about a prospective employee, while still being prohibited from receiving information about an actual criminal conviction that happened to be subject to a pardon. This appears inconsistent and subsection 10(6) aims to remedy this anomaly.

The language of subsection 10(6) tracks the “vulnerable person” exception to the disclosure of record suspensions under section 6.3 of the Criminal Records Act. This would promote consistency between the two pieces of legislation on a related subject matter.

The protection offered by this subsection currently does not exist in Ontario’s Police Record Checks Reform Act, 2015. However, subsection 10(6) would be in line with the LEARN Guideline for Police Record Checks (i.e. the guideline for record checks which formed the basis of much of Ontario’s legislation). In particular, the LEARN Guideline states that the vulnerable sector check should be “restricted to applicants seeking employment and/or volunteering in a position of authority or trust relative to vulnerable persons in Canada only” (see Appendix C of the LEARN Guideline).

Legislators may alternatively consider limiting who may apply for a vulnerable sector check under section 8. However, this would necessarily require the police to have the power to refuse to conduct a vulnerable sector check. In practice, this would mean that some individuals, asked by their prospective employers to obtain a vulnerable sector check, would be refused this option. These individuals would then have to return to the prospective employer to explain the police’s refusal to conduct the record check. Employers who learn that a record check had been refused may misconstrue this outcome as somehow being reflective of wrongdoing or concealment on the part of the individual. Alternatively, the employer may be unsatisfied with the less intrusive forms of record checks available. Legislators may also consider crafting a provision prohibiting persons or organizations from requiring an applicant to obtain a vulnerable sector check where it would not be relevant to the position being applied for. However, this option may create an adversarial relationship between the employer and prospective employee, as to enforce this mechanism would require the prospective employee to report the employer.

It is hoped that the public will be better informed about what types of positions truly require a vulnerable sector check. In the meantime, subsection 10(6) will afford some additional protection against the unnecessary disclosure of nonconviction information.

Comments:

Findings of guilt under the Youth Criminal Justice Act (“YCJA”) are generally treated differently than adult criminal convictions. The YCJA has specific disclosure criteria that are recognized within the Schedule. Section 11 ensures that where a YCJA record is permitted to be disclosed in accordance with the Schedule, it is provided as a separate record and in a prescribed form. The Ontario government recently released regulations for the Police Record Checks Reform Act, 2015 aimed at standardizing this practice to ensure that youth records are handled appropriately.

Comments:

Subsections (1) and (2) require the results of a criminal record check to be provided directly to the individual. Other persons or organizations may only receive the results with the written consent of the individual.

These provisions allow the person to whom the information relates to retain control over the information. These provisions also allow the individual an opportunity to review the record check for errors or a potential application for “reconsideration” before it is disclosed to a third party. These are helpful procedural protections that promote fairness and accuracy in the process.

Comments:

This section prohibits the improper use of a record check. Along with section 19, this section makes it an offence to use or disclose a record check for a purpose beyond which was authorized by law, or which was agreed upon by the individual.

Given the sensitive nature of the information potentially disclosed in a record check, it is sensible to include some provision that protects against the unlawful dissemination of this information once it is disclosed.

Comments:

Section 15 requires that every police record check provider institute a process that will allow individuals to correct information that may be improperly included in a record check. Unlike the “reconsideration” process in subsection 10(4), this section is primarily focused on correcting information that is inaccurate, as opposed to withholding information that may be irrelevant. Conviction and non-conviction information can be improperly registered to an individual because they share a similar name and/or date of birth as someone else, or simply because of a clerical error. In addition, police databases suffer from backlogs which result in outdated information sometimes being included in a record check (e.g. a conviction that has been overturned on appeal). Section 15 mandates a process through which an individual can correct these kinds of errors.

Comments:

While most record checks are conducted by police forces, this work can be contracted out or delegated to third parties. Section 17 ensures that any third party entity or authorized body given the power to conduct these checks is required, by agreement, to comply with the legislation and its regulations. In Ontario, the Commissioner of the Ontario Provincial Police is one official who is permitted to make such agreements with third party entities or authorized bodies.

The terms “third party entity” and “authorized body” are defined in section 1.

Comments:

Section 19 creates an offence for violations of the enumerated sections. This section enforces the most important powers and obligations set out in the legislation, including rules regarding the kinds of records that may be disclosed (ss. 8-9), when non-conviction information may be disclosed and how (s. 10), the treatment of youth records (s. 11), and who may receive a record check and how it can be handled once disclosure is complete (ss. 12-13). This section also requires all record checks within the scope of the legislation to be conducted in accordance with the legislation (s. 5), and that third party entities comply with the act where they are permitted to work with police record checks (s. 18).

The Police Record Checks Reform Act, 2015 in Ontario has set the fine for violating section 19 at $5,000.

Comments:

Recently, the Ontario government issued draft regulations for the Police Record Checks Reform Act, 2015. These regulations outline temporary exemptions to the legislation to allow for an orderly transition to the new regime, the handling of youth criminal records, the process to be followed for “reconsideration” under subsection 10(4), and the proposed list of offences that would be specified under subsection 10(2) of the legislation. The Uniform Police Record Checks Act proposes one further area of possible regulation. Under clause 21(2)(e), the Minister may specify the period of validity for a police record check obtained under the Act. Individuals are often asked to obtain a record check for each employment or volunteer position they apply for. This can result in the same record check being paid for and reproduced repeatedly. Specifying a period of validity will reduce the burden on job/volunteer applicants who usually bear the cost of these checks. A period of validity would also necessarily reduce the number of record checks the police would have to complete, promoting greater efficiency in the process and reducing the burden on the police when conducting these checks.

Comments:

Together with sections 8 and 9, the Schedule sets out what is authorized to be disclosed under the three types of criminal record checks provided for under the legislation. The Schedule is the heart of the legislation, as it sets out in clear terms what kind of information may be disclosed under the three types checks. It represents a balanced approach to respecting privacy and protecting the public. It also provides clarity, consistency and predictability in the type of information that may be disclosed in a record check.

Comments:

The term “pardon” was changed to “record suspension” with amendments made to the Criminal Records Act in 2012. This definition clarifies that where the term “pardon” is used in the Table, it refers to both “pardons” received prior to the amendments, and “record suspensions” obtained after the change took place.

Comments:

This definition is an addition to the Ontario Police Record Checks Reform Act, 2015. Under the Ontario legislation, “summary convictions” are not disclosable within five years of the date of the summary conviction (see Table of Authorized Disclosure, Row 1). The term “summary conviction” is not defined in the Ontario act and could be construed to include any offence which is proceeded with by way of summary conviction. Under the Criminal Code, most offences including crimes of violence can proceed by way of summary conviction or indictment (e.g. sexual assault, assault causing bodily harm, etc.). These are known in the criminal law as “hybrid” offences.

It is unlikely that the Ontario legislature intended for all hybrid summary convictions to be subject to the five-year limitation period. The intention was likely to impose a five-year limitation period on what are known as “straight” summary convictions.

Straight summary convictions are offences which can only be proceeded with by way of summary conviction. Under the Criminal Code, there are approximately 47 such offences: ss. 66(1), 83, 89, 134, 174, 175, 176(2), 176(3), 177, 178, 179, 201(2), 206(4), 210(2), 211, 213, 250, 258.1, 335, 339(2), 364, 365, 393(3), 398, 401, 404, 425, 427, 447.1(2), 454, 456, 457, 462.2, 464(b), 465(1)(d), 486.6, 487.0197, 487.0198, 487.0199, 490.0312, 517(2), 539(3), 542(2), 648(2), 732.11, 742.31, 810.4.

Similarly, under the Controlled Drugs and Substances Act, subsection 4(5) is punishable only on summary conviction.

These offences are less serious in nature, thereby justifying a limitation on their disclosure to a five-year period. Some examples include being a member of an unlawful assembly, defacing a coin, operating a common gaming house, and possessing less than 30 grams of marijuana. Other straight summary offences relate to failing to comply with certain court orders like preservation demands and publication bans.

For a complete understanding of this definition, it should be read in conjunction with the definition of “criminal offence” in section 1 of the act.