CHANGES COMING TO ONTARIO POLICE RECORD CHECKS - LCP Criminal Lawyers

CHANGES COMING TO ONTARIO POLICE RECORD CHECKS

by Mindy Caterina

On November 1, 2018, the Police Record Checks Reform Act (“the PRCRA”) will become law in Ontario. This law will create rules for the police that limit what can be disclosed about Ontarians to prospective employers, volunteer agencies and foreign governments.

Currently, police services across Ontario create their own policies and exercise their own discretion about when “non-conviction information” can be disclosed.

Without clear rules, police agencies have the discretion to release information about people who have never been convicted of a crime. For those of us in careers that require regular background or vulnerable sector checks – such as teachers, nurses, fire-fighters and social workers – the release of information about allegations that never resulted in convictions, or information from dated occurrence reports, has ended the careers of many Ontarians.

A former client of mine dealt with the stress of worrying that her non-conviction information could be disclosed and pose a risk to her nursing career. She had called the police in the midst of a domestic dispute wherein her partner placed his hands around her throat. She struck back at him, asked him to leave, and then called the police when he refused. When the police arrived and learned that she had struck her partner, they charged her with assault.

I assisted her with getting the assault charge withdrawn. However, because she was a nurse and subject to regular vulnerable sector checks, she wanted the associated records and non-conviction information destroyed. Without a law like the PRCRA, her information was subject to being disclosed if the Toronto Police Service, which laid the assault charge, exercised its discretion to do so.

My client applied for the destruction of the records and non-conviction information associated with the withdrawn charge of assault. Yet the Toronto Police Service refused her request because of its policy to not destroy materials related to “secondary designated offences” – such as assault.

I assisted my client with successfully appealing this decision. However, it took almost two-and-a-half years from the time of the assault allegation for her to receive confirmation that the records had been destroyed. Because there was no law like the PRCRA to prevent the Toronto Police from disclosing the withdrawn charge, obtaining confirmation that the records would be destroyed was the only way for her to obtain peace of mind that her career would no longer be at risk.

The PRCRA is a welcome change. Police record check providers will be prevented from disclosing non-conviction information except in accordance with a clearly delineated schedule. Police record check providers will only be permitted to disclose non-conviction information when it relates to specified offences, and the alleged victim is a child or vulnerable person, and the police record check provider has reasonable grounds to believe that the individual has engaged in a “pattern of predation”.

Where non-conviction information meets the new criteria for disclosure, affected individuals can apply for reconsideration and must be informed of how and when they can do so. By defining when non-conviction information can be disclosed and mandating a reconsideration procedure, the PRCRA brings long-awaited clarity and consistency to an issue that profoundly affects the livelihood of many Ontarians.

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