Evolving Challenges with Police Record Checks

Published December 20, 2018

We last wrote about Criminal Record Checks – a Discussion for Every Sport Organization in January 2016 and its time to update our knowledge in this area. This blogpost will review the new Ontario Police Record Checks Reform Act, 2015, discuss some national best practices with regard to criminal record checks in different jurisdictions, and address whether minors can be asked to obtain a criminal record check.

Note: the police record checks process in Canada is complex. The blogpost below attempts to interpret multiple laws and multiple jurisdictions. If you feel we have made an error or a misinterpretation please feel free to contact us. This blog was originally posted in December 2018 and last updated in December 2018. Updates are noted.

NEW ONTARIO LEGISLATION

Although the Police Record Checks Reform Act, 2015 was passed three years ago, it finally came into force on November 1st, 2018. The Act introduces several new measures that clarify the police record check (“PRC”) process in Ontario.

First, and most importantly, the Act describes the three different PRCs that may be obtained:

1. Criminal Record check
2. Criminal Record and Judicial Matters Check
3. Vulnerable Sector Check (“VSC”)

The first two types of PRCs are similar. A criminal record check provides criminal convictions from the Canadian Police Information Centre (“CPIC”) databases, summary convictions for five years, and convictions where a record suspension has been granted under the Criminal Records Act or by another act or regulation.

The Criminal Record and Judicial Matters Check provides the above information as well as outstanding charges and warrants, judicial orders, peace bonds, probation and prohibition orders, as well as absolute and conditional discharges.

The VSC is the most comprehensive of the PRCs because it provides all the above information, along with convictions for which a pardon has been granted (when such disclosure is authorized by the Criminal Records Act) as well as any non-conviction information authorized for exceptional disclosure by the new Police Record Checks Reform Act.

In addition to clarifying the types of PRCs and disclosure requirements, the new Act also clarifies that an individual must consent to a) the PRC, and b) the disclosure of the results of the PRC. The police record check provider that conducts the PRC will only give the results of the PRC to an organization if the individual has been made aware of the results and consented to the disclosure in writing.

VULNERABLE SECTOR CHECK (“VSC”)

In Ontario, that the VSC provides “non-conviction information authorized for exceptional disclosure” is an important part of the new Act. The police record check provider that is providing the VSC now has the discretion to disclose non-conviction information if that information meets the following criteria:

1. The criminal charge was for one of these offenses;
2. The alleged victim was a child or vulnerable person; and
3. Based on the information, the police record check provider has reasonable grounds to believe the individual presents a risk of harm to a child or vulnerable person.

In Ontario, a VSC provides the same information as a Criminal Record and Judicial Matters Check with two important additions:

1. Disclosure of convictions for which a pardon has been granted (if such disclosure is permitted by the Criminal Records Act); and
2. Authorized non-conviction information, as described above.

For subsection a), we know that the VSC searches the now-inactive Pardoned Sex Offender database. That database contains the names of individuals who have successfully applied to keep their ‘pardon’ (or ‘record suspension’) separate from their other records. The database contains roughly 14,000 names and the youngest person on the list was born in February 1986. Because of that fact, many organizations have been asking individuals to obtain a VSC only once – new individuals are not being added to the database so a renewal of a VSC was not necessary. Once the individual obtained a VSC once, they could renew their screening requirements by simply obtaining a Criminal Record Check.

But now, for subsection b), above, we know that in Ontario the VSC is providing valuable information about non-conviction information. Organizations will need to consider whether individuals should renew their screening requirements with a new VSC.

Importantly, the VSC is more difficult to obtain. Depending on the police service, the organization will need to provide a written letter or complete an application package that describes the organization, its role within the vulnerable sector, and the reasons why the individual requires the VSC.

OTHER JURISDICTIONS

Everything is clear in Ontario! But what about other jurisdictions?

British Columbia likely has the most comprehensive criminal records check process. In fact, in BC you are required to obtain a criminal record review if you work with children or vulnerable adults and your sport organization receives provincial funding. The criminal record review is conducted by the Criminal Records Review Program (CRRP), which is a government program specific to BC, and with which provincial sport organizations and multi-sport organizations in BC must register. More information about BC’s criminal record check process is available on the ViaSportBC website.

Slightly complicating matters is that some volunteer organizations can choose to ‘opt-in’ to the CRRP and their volunteers would not be required to obtain criminal record checks in this manner. Instead, individuals can obtain a Police Information Check (“PIC”) from a local police service. This chart shows the differences between the CRRP criminal record review – which returns a ‘cleared’ or ‘not cleared’ status for the applicant – and the PIC.

We mentioned that in Ontario, the VSC reveals a) Disclosure of convictions for which a pardon has been granted (if such disclosure is permitted by the Criminal Records Act); and b) Authorized non-conviction information. For jurisdictions other than Ontario and BC, the VSC (also called a ‘Vulnerable Sector Search’ or ‘VSS’) may or may not come with additional police information, which may or may not include non-conviction information.

The differences in jurisdictions and available information severely complicates the development of a national standard for police record checks. In our 2016 blogpost, we noted the partnership between the Coaching Association of Canada (“CAC”) and SterlingBackcheck to provide an Enhanced Police Information Check (E-PIC). The E-PIC checks almost everything – except for the Pardoned Sex Offender database (which requires a VSC and more hands-on involvement from the organization).

BEST PRACTICES

Twenty-four (24) National Sport Organizations have signed on to the CAC-SterlingBackcheck program that provides E-PICs to members of the organization. The E-PIC, described in our 2016 blogpost, appears to be a comprehensive and inexpensive screening solution that can be renewed. Its one drawback – that it does not check the Pardoned Sex Offender database – can be remedied (if the organization chooses) by having the individual obtain a VSC once.

Signing on to the CAC-SterlingBackcheck program is not limited to National Sport Organizations. Provincial/Territorial organizations and clubs can also join the program even if their National federation has not done so.

For organizations in BC, the most popular option appears to be obtaining a criminal record review – which returns a ‘cleared’ or ‘not cleared’ result – from the Criminal Records Review Program. Organizations also have the option of obtaining a Police Information Check directly from a local police service.

For organizations in Ontario, the newly updated legislation provides some new options. Organizations can have individuals obtain and renew the VSC (since it returns non-conviction information, which may be new and recent) or have individuals obtain the VSC once and subsequent E-PICs which are cheaper and easier to obtain. Organizations should have discretion in their screening policies to require individuals to obtain any type of check at any time.

For organizations in provinces/territories other than Ontario and BC, the best practice appears to be similar to Ontario - to have the individual obtain a VSC once and renew screening requirements by obtaining an E-PIC.

CAN MINORS OBTAIN CRCS?

In federal law, a minor (or ‘young person’) is an individual who is younger than 18 years old. As organizations attempt to harmonize or align their screening requirements, one challenge they are facing is whether they can ask young people to obtain a criminal record check.

In Canada, individuals who are younger than 18 fall under the Youth Criminal Justice Act. If a young person is convicted under that Act and sentenced as a youth, they will receive a ‘youth record’.

Access to youth records is protected under the Youth Criminal Justice Act and restricted to certain individuals and groups. For example, a government entity can request a youth record as part of an employment offer – but a sport organization cannot make that same request. Further, a young person is restricted from showing their youth record to a sport organization or other individual – even if they wanted to. Essentially, since a young person cannot provide a sport organization with their youth record, there is no point for the organization to even ask for it.

In Ontario, the regulations to the Police Record Checks Reform Act helpfully clarified these restrictions about disclosure. If an Ontario sport organization asked a young person for a criminal record check, the check may return instructions to the young person saying that they are not allowed to disclose their youth record.

Once exception to the above paragraphs is if the young person was convicted for a crime but sentenced as an adult. In these cases, the young person would have a criminal record – not a youth record – which would be disclosed as part of a criminal record check. Also, if a person older than 18 years old is convicted of a crime and also has an open youth record, their youth record becomes part of their criminal record.

So what is the best practice here? We know that some organizations will ask young people for additional personal references, rather than ask them to obtain a criminal record check, and this seems to be a prudent exercise of an organization’s due diligence. Also, an organization should also be clear in its policies that it will never ask a young person for their youth record. However, an organization should want discretion to, in certain circumstances, ask a young person for a criminal record check if it suspects that the young person has previously been convicted and then sentenced as an adult.

FINAL CONSIDERATIONS

A ‘one size fits all’ approach to screening and police record checks throughout Canada is not very practical. In developing screening procedures, each organization must consider their jurisdiction, their capacity, their appetite for risk, their youth volunteers, and many more items discussed above and in our 2016 blogpost.

Given the ever-evolving landscape we expect to post another blogpost two years from now discussing even more new developments in this area! But in the meantime, we hope this post has contributed to advancing the conversation. Please let us know if you have any questions or would like assistance with your screening procedures.

Kevin Lawrie - KRL@sportlaw.ca
Steve Indig - SJI@sportlaw.ca