Bill 113, Police Record Checks Reform Act, 2015

Naqvi, Hon Yasir Minister of Community Safety and Correctional Services

Current Status: Royal Assent received Chapter Number: S.O. 2015 C.30

Viewing: Royal Assent (current version) pdf

Bill 113                                                       2015

An Act respecting police record checks

CONTENTS

 

Interpretation and Application

 1.

 2.

 3.

 4.

Interpretation

Application, searches of Canadian Police Information Centre databases, etc.

Crown bound

Disclosure under other Acts

Manner of Request, Manner of Response

 5.

 6.

Manner of requesting police record check

Manner of responding to request for police record check

Procedures Governing Police Record Checks

 7.

 8.

 9.

10.

11.

12.

13.

14.

Request for police record check

Conducting police record check

Disclosure in accordance with Schedule

Exceptional disclosure of non-conviction information, vulnerable sector check

Manner of disclosure, youth records

Disclosure of results

Restriction, use of information

Form of disclosure

Additional Requirements

15.

16.

17.

18.

Corrections

Statistics

Agreements

Requirements respecting third party entities

Enforcement

19.

Offence

Administrative Matters

20.

21.

Directives

Review of Act

Regulations

22.

Regulations

Complementary Amendments

23.

24.

25.

26.

27.

28.

29.

Child Care and Early Years Act, 2014

Long-Term Care Homes Act, 2007

Ontario Labour Mobility Act, 2009

Police Services Act

Private Security and Investigative Services Act, 2005

Regulated Health Professions Act, 1991

Retirement Homes Act, 2010

Commencement and Short Title

30.

31.

Commencement

Short title

Schedule

 

______________

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Interpretation and Application

Interpretation

   1.  (1)  In this Act,

“authorized body” means a body authorized for the purposes of section 6.3 of the Criminal Records Act (Canada); (“organisme autorisé”)

“child” means a person under the age of 18 years; (“enfant”)

“criminal offence” means, subject to subsection (3), an offence under the Criminal Code (Canada), the Controlled Drugs and Substances Act (Canada), or any other law of Canada; (“infraction criminelle”)

“Minister” means the Minister of Community Safety and Correctional Services or such other member of the Executive Council as may be assigned the administration of this Act under the Executive Council Act; (“ministre”)

“non-conviction information” means, subject to subsection (4), 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 proceedings or an acquittal; (“données de non-condamnation”)

“police record check” means a search described in subsection 2 (1); (“vérification de dossier de police”)

“police record check provider” means,

  (a)  a chief of police,

  (b)  a member of a police force designated by a chief of police for the purposes of this Act,

   (c)  an entity permitted by the Royal Canadian Mounted Police to access the Canadian Police Information Centre databases,

  (d)  an authorized body, or

  (e)  a third party entity; (“fournisseur de vérifications de dossiers de police”)

“prescribed” means prescribed by the regulations under this Act; (“prescrit”)

“third party entity” means an entity that has an agreement with a police force to provide services related to conducting a police record check, such as intake of requests, performance of searches or disclosure of results; (“entité tierce”)

“vulnerable person” means a person who, because of his or her age, a disability or other circumstances, whether temporary or permanent,

  (a)  is in a position of dependency on others, or

  (b)  is otherwise at a greater risk than the general population of being harmed by a person in a position of trust or authority towards them. (“personne vulnérable”)

Same, expressions related to police forces

   (2)  Expressions used in this Act relating to police forces have the same meaning as in the Police Services Act.

Offence under Contraventions Act (Canada)

   (3)  An offence prosecuted under the Contraventions Act (Canada) is not a criminal offence for the purposes of this Act unless a conviction for the contravention is entered after a trial on an indictment.

Exception, non-conviction information

   (4)  Non-conviction information does not include information that is part of a record that may be kept under section 717.2 or 717.3 of the Criminal Code (Canada).

Application, searches of Canadian Police Information Centre databases, etc.

   2.  (1)  This Act applies to persons who require a search to be conducted of the Canadian Police Information Centre databases or another police database maintained by a police service in Canada to determine whether the databases contain entries relating to an individual in order to screen the individual, including without limitation,

  (a)  for the purposes of determining his or her suitability for employment, volunteer work, a licence, an office, membership in any body or to provide or receive goods or services; or

  (b)  for the purposes of assessing his or her application to an educational institution or program.

Exceptions

   (2)  This Act does not apply in respect of the following:

    1.  A search required under the Children’s Law Reform Act in respect of an application for custody of a child by a person who is not a parent of the child.

    2.  A search required for the purpose of the Office of the Children’s Lawyer representing a child or reporting to a court under section 112 of the Courts of Justice Act.

    3.  A check required under the Change of Name Act in respect of an application for a change of name.

    4.  A search requested by the sheriff under the Juries Act.

    5.  A search conducted in relation to the administration of the Firearms Act (Canada).

    6.  A search required for the purpose of carrying out the Attorney General’s functions under the Ministry of the Attorney General Act.

    7.  A search required for the purpose of fulfilling the duties assigned to Crown Attorneys and provincial prosecutors under the Crown Attorneys Act.

    8.  A search requested by a children’s aid society for the purpose of performing its functions under subsection 15 (3) of the Child and Family Services Act.

    9.  Any other searches that may be prescribed.

Provincial offences prosecutions

   (3)  For greater certainty, the functions referred to in paragraph 6 of subsection (2) include the prosecution of provincial offences.

Records

   (4)  This Act applies in respect of records in the custody or under the control of a police force or in the custody or under the control of another agency responsible for providing police services in Canada.

Crown bound

   3.  Except as otherwise provided in this Act or the regulations, this Act binds the Crown.

Disclosure under other Acts

   4.  For greater certainty, nothing in this Act,

  (a)  permits or requires the disclosure of information whose disclosure is prohibited under the Criminal Code (Canada), the Criminal Records Act (Canada), the Youth Criminal Justice Act (Canada), or any other law of Canada;

  (b)  affects the ability to collect, use or disclose personal information under clause 42 (1) (f) or (g) of the Freedom of Information and Protection of Privacy Act or clause 32 (f) or (g) of the Municipal Freedom of Information and Protection of Privacy Act;

   (c)  affects the ability to disclose personal information under the Police Services Act;

  (d)  affects an individual’s right to access personal information about himself or herself under the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act; or

  (e)  affects the power of a court or a tribunal to compel a witness to testify or compel the production of a document.

Manner of Request, Manner of Response

Manner of requesting police record check

   5.  A person to whom this Act applies shall not request a police record check in respect of an individual in any manner other than in accordance with this Act.

Manner of responding to request for police record check

   6.  A police record check provider responding to a request for a police record check from a person described in section 5 or from an individual who requests a police record check in respect of himself or herself shall respond to the request in accordance with this Act.

Procedures Governing Police Record Checks

Request for police record check

   7.  (1)  An individual may request in writing that a police record check provider conduct a police record check in respect of the individual or that the provider cause such a check to be conducted.

Same, request by person or organization

   (2)  A person or organization may request in writing that a police record check provider conduct a police record check in respect of an individual or that the provider cause such a check to be conducted.

Prescribed requirements

   (3)  A person making a request under this section shall comply with any prescribed requirements.

Type of check

   (4)  A request shall specify the particular type of police record check being requested.

Fee

   (5)  A request shall be accompanied by any applicable fee.

Conducting police record check

Police forces

   8.  (1)  A chief of police or a member of a police force designated by a chief of police for the purposes of this Act shall conduct the following types of police record checks:

    1.  Criminal record check.

    2.  Criminal record and judicial matters check.

    3.  Vulnerable sector check.

Others

   (2)  An authorized body, a third party entity or an entity permitted by the Royal Canadian Mounted Police to access the Canadian Police Information Centre databases may conduct any of the types of police record checks mentioned in subsection (1) if, under an agreement with a police force or under the laws of Canada, the body or entity is permitted to conduct the particular type of check.

Consent of individual

   (3)  A police record check provider shall not conduct a police record check in respect of an individual unless the request contains the individual’s written consent to the particular type of check.

Disclosure in accordance with Schedule

   9.  A police record check provider shall not disclose information in response to a request for a police record check unless the information is authorized to be disclosed in connection with the particular type of police record check in accordance with the Schedule.       

Exceptional disclosure of non-conviction information, vulnerable sector check

   10.  (1)  This section applies with respect to the disclosure of non-conviction information in response to a request for a vulnerable sector check in respect of an individual.

Criteria for exceptional disclosure

   (2)  Non-conviction information about the individual is not authorized for exceptional disclosure unless the information satisfies all of the following criteria:

    1.  The criminal charge to which the information relates is for an offence specified in the regulations made under subsection 22 (2) (c).

    2.  The alleged victim was a child or a vulnerable person.

    3.  After reviewing entries in respect of the individual, the police record check provider has reasonable grounds to believe that the individual has been engaged in a pattern of predation indicating that the individual presents a risk of harm to a child or a vulnerable person, having regard to the following:

            i.  Whether the individual appears to have targeted a child or a vulnerable person.

           ii.  Whether the individual’s behaviour was repeated and was directed to more than one child or vulnerable person.

          iii.  When the incident or behaviour occurred.

          iv.  The number of incidents.

           v.  The reason the incident or behaviour did not lead to a conviction.

          vi.  Any other prescribed considerations.

Format of disclosure

   (3)  When disclosing a record containing non-conviction information authorized for exceptional disclosure, the police record check provider shall ensure that the record contains the definition of “non-conviction information” found in this Act and that the information is clearly identified as such.

Reconsideration

   (4)  If the individual submits a request for reconsideration in accordance with the regulations, the provider shall, within 30 days after receiving the reconsideration request, reconsider its determination in accordance with any requirements prescribed by the Minister.

Result of reconsideration

   (5)  Non-conviction information shall not be disclosed if, after a reconsideration, the provider determines the information does not meet the criteria listed in subsection (2).

Manner of disclosure, youth records

   11.  If this Act authorizes the disclosure of a finding of guilt under the Youth Criminal Justice Act (Canada) in respect of an individual, the information shall be disclosed in a separate record from any record containing other information disclosed in respect of the individual in the prescribed form, if any.

Disclosure of results

   12.  (1)  A police record check provider shall disclose the results of a police record check to the individual who is the subject of the request and shall not disclose the results to any other person, subject to subsection (2).

Disclosure with consent

   (2)  If an individual provides written consent after receiving the results of a check about himself or herself under subsection (1), the police record check provider may provide a copy of the information to the person or organization who requested the check under subsection 7 (2) or to another person or organization the individual specifies.

Other requirements

   (3)  A police record check provider shall comply with any other requirements that may be prescribed respecting disclosure.

Restriction, use of information

   13.  A person or organization that receives information under subsection 12 (2) shall not use it or disclose it except for the purpose for which it was requested or as authorized by law.

Form of disclosure

   14.  The Minister may require the use of an approved form for any purpose under this Act.

Additional Requirements

Corrections

   15.  (1)  Every police record check provider shall create and implement a process to respond to a request from an individual to correct information in respect of the individual if the individual believes there is an error or omission in the information.

Prescribed requirements

   (2)  The process shall comply with any requirements the Minister may prescribe.

Statistics

   16.  Every police record check provider shall prepare and maintain the prescribed statistical information in connection with police record check requests and shall provide that information to the Minister on request.

Agreements

   17.  A police services board or the Commissioner of the Ontario Provincial Police shall ensure that any agreement the board or Commissioner enters into with a third party entity or authorized body in respect of police record checks includes provisions respecting the entity’s or body’s compliance with this Act and the regulations.

Requirements respecting third party entities

   18.  A third party entity shall comply with any prescribed requirements in connection with police record checks.

Enforcement

Offence

   19.  (1)  A person or organization that wilfully contravenes section 5, 8, 9, 10, 11, 12 or 13 is guilty of an offence.

Penalty

   (2)  A person convicted of an offence is liable to a fine of not more than $5,000.

No prosecution without consent

   (3)  A prosecution shall not be commenced under this section without the Minister’s consent.

Proof of consent

   (4)  The production of a document that appears to show that the Minister has consented to a prosecution under this section is admissible as evidence of the Minister’s consent.

Administrative Matters

Directives

   20.  The Minister may issue directives to police record check providers with respect to matters to which this Act applies.

Review of Act

   21.  The Minister shall conduct a review of this Act within five years after the day this section comes into force.

Regulations

Regulations

Lieutenant Governor in Council

   22.  (1)  The Lieutenant Governor in Council may make regulations,

  (a)  exempting any person or class of persons from any provision of this Act and attaching conditions to the exemption;

  (b)  defining, for the purposes of this Act and the regulations, any word or expression used in this Act that has not already been expressly defined in this Act;

   (c)  prescribing anything that, under this Act, may or must be prescribed or done by regulation, other than the matters in respect of which the Minister may make regulations under subsection (2);

  (d)  generally for carrying out the purposes and provisions of this Act.

Minister

   (2)  The Minister may make regulations,

  (a)  approving forms and requiring their use for any purpose under this Act;

  (b)  respecting statistical information that a police record check provider must prepare and maintain in connection with police record check requests;

   (c)  specifying offences for the purposes of the criteria for exceptional disclosure of non-conviction information under section 10;

  (d)  governing the process for conducting a reconsideration under section 10.

Incorporation by reference

   (3)  A regulation made under clause (2) (d) may adopt, by reference, in whole or in part, and with such changes as are considered necessary, one or more documents setting out standards or procedures for reconsiderations.

Complementary Amendments

Child Care and Early Years Act, 2014

   23.  (1)  The definition of “criminal reference check” in subsection 2 (1) of the Child Care and Early Years Act, 2014 is repealed.

   (2)  Subsection 2 (1) of the Act is amended by adding the following definition:

“police record check” means a police record check within the meaning of the Police Record Checks Reform Act, 2015. (“vérification de dossier de police”)

   (3)  Subsection 35 (1) of the Act is amended by striking out “a criminal reference check” in the portion before paragraph 1 and substituting “the results of a police record check”.

   (4)  Subsection 35 (2) of the Act is amended by striking out “a criminal reference check” and substituting “the results of a police record check”.

   (5)  Subsection 35 (3) of the Act is amended by striking out “criminal reference check” in the portion before clause (a) and substituting “police record check”.

   (6)  Clause 35 (3) (b) of the Act is repealed and the following substituted:

  (b)  must meet any other requirements prescribed by the regulations, including requirements relating to the type of police record check.

   (7)  Subsection 35 (4) of the Act is amended by striking out “criminal reference check” and substituting “results of the police record check”.

   (8)  Subclause 81 (2) (f) (i) of the Act is amended by striking out “criminal reference checks” and substituting “police record checks”.

   (9)  Subclause 81 (2) (f) (ii) of the Act is amended by striking out “criminal reference check” and substituting “police record check”.

Long-Term Care Homes Act, 2007

   24.  (1)  Subsection 75 (2) of the Long-Term Care Homes Act, 2007 is amended by striking out “criminal reference checks” and substituting “police record checks”.

   (2)  Clause 89 (2) (k) of the Act is amended by striking out “references checks” and substituting “police record checks”.

   (3)  Clause 89 (2) (l) of the Act is amended by striking out “criminal reference check” and substituting “police record check”.

Ontario Labour Mobility Act, 2009

   25.  Subparagraph 1 iv of subsection 9 (5) of the Ontario Labour Mobility Act, 2009 is amended by striking out “criminal background check” and substituting “police record check”.

Police Services Act

   26.  (1)  Clause 3 (2) (b) of the Police Services Act is amended by adding “or standards established under the Police Record Checks Reform Act, 2015” at the end.

   (2)  Clause 22 (1) (a) of the Act is amended by adding “or standards established under the Police Record Checks Reform Act, 2015” at the end of the portion before subclause (i).

   (3)  Subsection 23 (1) of the Act is amended by striking out “prescribed standards of police services” in the portion before paragraph 1 and substituting “prescribed standards of police services or standards established under the Police Record Checks Reform Act, 2015”.

Private Security and Investigative Services Act, 2005

   27.  Clause 11 (2) (c) of the Private Security and Investigative Services Act, 2005 is repealed and the following substituted:

   (c)  a criminal record and judicial matters check under the Police Record Checks Reform Act, 2015, or his or her consent for the Registrar to conduct such a check or have one conducted;

Regulated Health Professions Act, 1991

   28.  Subparagraph 1 iv of subsection 22.18 (5) of Schedule 2 to the Regulated Health Professions Act, 1991 is amended by striking out “criminal background check” and substituting “police record check”.

Retirement Homes Act, 2010

   29.  Subsection 64 (2) of the Retirement Homes Act, 2010 is amended by striking out “police background check” and substituting “police record check”.

Commencement and Short Title

Commencement

   30.  This Act comes into force on a date to be named by proclamation of the Lieutenant Governor.

Short title

   31.  The short title of this Act is the Police Record Checks Reform Act, 2015.

 

SCHEDULE

Authorized disclosure under s. 9 of the Act

   1.  (1)  For the purposes of section 9 of the Act, a police record check provider shall not disclose information of a type set out in Column 1 of the Table to this section as part of a police record check set out in Column 2, 3 or 4 in respect of an individual unless the information is authorized to be disclosed in accordance with the Table to this section.

Interpretation, “pardon”

   (2)  In the Table,

“pardon” includes a record suspension within the meaning of the Criminal Records Act (Canada).

TABLE
AUthorized Disclosure

 

Item

Column 1

Type of Information

Column 2

Criminal record check

Column 3

Criminal record and judicial matters check

Column 4

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 and Family Services Act.

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 and Family Services Act.

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).

 

EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 113 and does not form part of the law.  Bill 113 has been enacted as Chapter 30 of the Statutes of Ontario, 2015.

 

The Police Record Checks Reform Act, 2015 is enacted. Here are some of the Act’s major features:

The Act sets out a process governing requests for searches of the Canadian Police Information Centre databases, or other police databases, in connection with screening an individual for certain purposes. The Act does not apply in respect of certain searches conducted in respect of specified government activities.

A person to whom the Act applies shall not request a police record check in any manner other than in accordance with the Act. A police record check provider must respond to the request in accordance with the Act.

The Act authorizes police forces to conduct three types of police record checks: criminal record checks, criminal record and judicial matters checks, and vulnerable sector checks. Certain other parties are authorized to conduct those types of police record checks if they are permitted to do so under an agreement with a police force or under the laws of Canada.

The Schedule to the Act sets out the type of information that is authorized for disclosure for each type of police record check.

The Schedule to the Act indicates that non-conviction information about an individual cannot be disclosed in response to a criminal record check or in response to a criminal record and judicial matters check. Non-conviction information is authorized for disclosure only in a vulnerable sector check and only if it meets the test for exceptional disclosure set out in section 10.

The Act specifies that a person or organization that receives information in response to a police record check shall not use or disclose it except for the purpose for which it was requested or as authorized by law.

A person or organization that wilfully contravenes certain provisions of the Act is guilty of an offence and is liable to a fine of not more than $5,000. A prosecution cannot be commenced unless the Minister consents.

Complementary amendments are made to various Acts.

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