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OHRC submission to the MCSCS regarding mandating standards for police record checks

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Ontario Human Rights Commission submission 
to the Ministry of Community Safety and Correctional Services
regarding Mandating standards for police record checks

April 22, 2015

Overview

The Ontario Human Rights Commission (OHRC) welcomes the government’s commitment to find solutions to public concerns with police record checks.[1] The OHRC agrees that there is a lack of consistency with the various levels of record checks and their purposes, as well as the types of information disclosed, which creates confusion for everyone.

The OHRC is also concerned about the adverse effect that police record checks for employment, volunteer, tenancy and other purposes have on various groups protected from discrimination under Ontario’s Human Rights Code (Code) including people with mental health disabilities and addictions, Indigenous peoples and racialized communities.[2]

The OHRC has learned that the Ministry of Community Safety and Correctional Services is considering mandating the standards set out in the Ontario Association of Chiefs of Police’s (OACP) voluntary Guideline for Police Record Checks (2014).[3] The OHRC supports this approach. Mandating standards through legislation is a significant next step to ensure that employers, police services and other organizations, as well as third party police record checks services, are balancing respect for privacy and human rights with public safety.

In August 2014, the OHRC wrote to the OACP, and copied the Ministry of Community Safety and Correctional Services, endorsing the updated 2014 Guideline and its clearer presumption against disclosure of non-conviction records.[4] The OHRC also supported the OACP Board’s February 2014 motion calling for the development of an evidence-based procedure to determine when non-conviction information can be disclosed, as well as public education and legislative change to ensure consistency across police services.[5]

The OHRC was part of the stakeholder group that advised[6] on the development of the first OACP Guideline and endorsed[7] its release in 2011. The OHRC became involved with the initiative after learning through litigation[8] and public consultation[9] about the unfair impact of police records checks on people with mental health disabilities who had non-criminal contact with police.

Comment on mandating standards for police record checks

The OHRC supports disclosing only the minimum information necessary to achieve a legitimate purpose for each of the three levels of record checks – Police Criminal Record Check (PCRC), Police Information Check (PIC) and Police Vulnerable Sector Check (PVSC).

The OHRC understands that criminal convictions would be disclosed for all three levels of record checks. Summary convictions (less serious offences) would only be disclosed for a five-year period. Findings of guilt under the Youth Criminal Justice Act would be disclosed within the applicable disclosure period.

Cases of Not Criminally Responsible by Reason of Mental Disorder would only be disclosed on a PVSC for a five-year period. Otherwise, references to incidents involving mental health contact would not appear in the results of any level of record checks. Diversions (a lighter disposition of a criminal charge) would not be disclosed on any level of checks. Convictions under provincial statutes such as the Highway Traffic Act would not be disclosed either.

A PIC and PVSC would include convictions and other information such as outstanding warrants, charges and judicial orders as well as absolute and conditional discharges for one and three years respectively.

A record suspension (formerly known as a pardon) would not appear on a PCRC or PIC and could only appear on a PVSC if authorized for release by the Federal Minister of Public Safety for someone convicted of a sex offence.

In accordance with the federal Criminal Records Act,[10] a PVSC would be limited to employment and volunteer situations where an individual will be in a position of trust or authority relative to a child or vulnerable person. An agency requesting a PVSC must have this type of position and a police service should not release information if they have reason to believe otherwise.

The OHRC would also support exceptional disclosure criteria for non-conviction records under a PVSC where there is a pattern of financial or sexual predatory behaviour toward vulnerable people. Any non-conviction records that met the exceptional disclosure criteria for a PVSC would only be disclosed for a five-year period.

The OHRC also supports a requirement for reconsideration, as the OACP Guideline currently provides. This is important because a record of an incident is a snapshot in time and a person’s situation may change. Medical or other evidence may support suppression of certain incidents where it shows the person no longer poses a risk for public safety based on, for example, an applicant’s age at the time, or documentation of a person’s current medical or rehabilitative state. While an individual may be able to seek a judicial review of a police service’s reconsideration decision, consideration should be given to including a more accessible appeal mechanism. [11]

As the OHRC recommended to the OACP in 2014,[12] standards should not prohibit an individual from requesting a police record check at any time.[13] An individual may wish to know in advance what information would be disclosed if and when they apply for a position that requires a records check. An individual should also be able to ask for reconsideration at any time. This could help avoid unnecessary delays and unintended consequences. In some cases, individuals may not even be aware that police have information about them on record until it is too late.

Mandated standards should apply to any level of police record checks performed for employment or volunteer purposes. They should also apply to police record checks happening for other purposes including access to housing, jury selection,[14] education programs and other services, contracts or membership in vocational associations such as unions or professional associations.

Limitations of mandating standards for police record checks

While section 7 of the OACP Guideline says that an organization should have a bona fide and reasonable basis for requesting any level of police record checks, the Guideline is voluntary and provides no clear direction for what types of positions would warrant a PCRC or a PIC. The OACP Guideline is clear, however, that a PVSC can only be done for positions responsible for the wellbeing of children or vulnerable adults in accordance with the federal Criminal Records Act.

Because of the potential for adverse discrimination, the OHRC has taken the position that organizations must have a bona fide and reasonable basis for requesting any level of police record checks.[15] Various provincial statutes and regulations include requirements for police record checks in specific situations.[16] These laws should be reviewed to make sure their requirements are also bona fide and reasonable.[17] Municipal by-laws with police record checks requirements should be bona fide and reasonable as well.[18]

OHRC consultations,[19] inquiries,[20] and other research[21] show that police record checks have a negative impact on certain groups’ access to employment, housing, education and other services including people with mental health disabilities and addictions, Indigenous peoples and racialized communities. These groups face disproportionate contact with the criminal justice system and experience related discrimination such as racial profiling contrary to Ontario’s Human Rights Code.

Legislating standards like the OACP Guideline, while important and necessary, is not enough to help address these adverse effects as well as the increasing demand for police record checks. Having to disclose a criminal record or other non-conviction record exacerbates these challenges, inhibiting the successful rehabilitation and reintegration of these historically disadvantaged groups back into society.[22]

Section 11 of Ontario’s Human Rights Code exists to protect groups who experience adverse effect discrimination because of requirements, such as police record checks, if found not bona fide and reasonable in the circumstances.

Limitations of current protections and exceptions for record of offences under Ontario’s Human Rights Code

The Code provides no protection for people with a criminal record unless they have a “pardon” [23] (now a “record suspension” under the federal Criminal Records Act) and this only applies in employment. Even so, the Code provides an exception to protect public safety where an employer can show a bona fide and reasonable basis for treating somebody with a record of offences differently.[24]

Other provinces and territories such as British Columbia,[25] Prince Edward Island,[26] Newfoundland,[27] Quebec[28] and Yukon[29] have human rights legislation that provides more protection for persons with criminal records in the employment context. The Yukon Human Rights Act offers the most protection, prohibiting discrimination because of “criminal record or criminal charges” in all areas and provides a specific exception only where it is relevant to the employment. Unlike Ontario’s Human Rights Code, none of these statutes limit protection to only persons with a pardoned conviction (or record suspension). Similar to Ontario however, these human rights laws appear not to provide protection for other non-conviction information that might be collected, used or disclosed.

Federal changes to eligibility requirements for record suspensions as well as processing fees and backlogs have made it more difficult to obtain record suspensions.[30] This may further limit the number of individuals with a record of offence who can rely on protection against discrimination in employment under Ontario’s Human Rights Code.

Different legislative provisions across jurisdictions have also resulted in different outcomes in legal jurisprudence. The Human Rights Tribunal of Ontario has strictly interpreted the words of Ontario’s Code finding, for example, that it does not apply to someone who was charged with a criminal offence but does not have a criminal record.[31] There is a pending Charter challenge to the definition of record of offences in Ontario’s Code.[32]

Research[33] and media reports[34] show that people with a criminal record in general experience stigmatization, disadvantage and discrimination analogous to the types of differential treatment human rights legislation was intended to protect.

There is a broader view that changes to Ontario’s Human Rights Code could help support the objectives of mandating standards for police record checks as well as help bring about a more synergic balance to public policy goals for human rights, privacy, offender rehabilitation, crime prevention and public safety. Organizations such as the Canadian Civil Liberties Association and the John Howard Society of Ontario are calling for changes to Ontario’s Human Rights Code for these reasons.[35]

Changes might include, for example, amending the Code to:

  • Reflect the term “record suspension” now used in the federal Criminal Records Act
  • Provide basic protection against discrimination and harassment for anyone with a record of offences, including charges and convictions, with or without a record suspension, as well as non-conviction police records or other police contact information, and
  • Include these protections for record of offences in employment as well as vocational associations, housing, services and contracts.

The Code already has an exception for organizations that have a bona fide and reasonable basis to treat people with a record of offences differently in employment. Balancing human rights and public safety might require expanding this exception to apply to convictions (with or without a record suspension), charges and non-conviction information for record checks in housing,[36] services, contracts and vocational associations if a legitimate reason can be shown in these areas as well.

Clearer provisions in the Code for protection based on record of offences, as well as exceptions for public safety, could help everyone better understand and act on their legal rights and obligations.

Other related issues

The OHRC is monitoring other issues related to the negative effects of police records including efforts by the Information and Privacy Commissioner of Ontario to address the Toronto Police Service’s practice of uploading all attempted suicide information to the Canadian Police Information Centre (CPIC) database without an assessment of individual risk.[37]

The OHRC identified other related issues in its 2011 letter to the OACP including police perception, practice and training on how incidents involving mental health are recorded in police databases.[38]

The OHRC is also concerned about police perception of people with mental health disabilities and addictions, Indigenous peoples and racialized communities and how these perceptions impact on use of force and other interactions with these groups. The concerns extend to what information is collected about them; how it is used in policing; and, how all this may negatively impact these groups who subsequently undergo police record checks for employment or other purposes.[39]


[1] Mandate letter from the Premier of Ontario to the Minister of Community Safety and Correctional Services directing the Minister to undertake a review of police record checks (September 25, 2014), online: www.ontario.ca/government/2014-mandate-letter-community-safety-and-corre....

[2] The John Howard Society of Ontario’s report, Help Wanted: Reducing Barriers for Ontario’s Youth with Police Records (2014), found that young Ontarians from marginalized populations – Aboriginal peoples, racialized/immigrant communities, individuals with mental illness and addictions or developmental disabilities, etc. – are more likely to come into contact with the police and justice system, and thus, have a police record, which in turn is one of the most significant barriers to employment and employability. The Canadian Civil Liberties Association’s report, False Promises, hidden costs: The case for reframing employment and volunteer police record check practices in Canada (2014), raises similar concerns.

[4] Letter from the Chief Commissioner of the Ontario Human Rights Commission, to the President of the Ontario Association of Chiefs of Police (August 1, 2014), unpublished.

[6] Letter from the Executive Director of the Ontario Human Rights Commission to the Co-Chair, Law Enforcement and Records [Managers] Network LEARN, Ontario Association of Chiefs of Police (March 10, 2011). Online: www.ohrc.on.ca/en/re-oacp%E2%80%99s-draft-guideline-police-record-checks

[7] OHRC statement, “Police record checks guideline eliminates mental health descriptions” (July 25, 2011). Online: www.ohrc.on.ca/en/news_centre/police-record-checks-guideline-eliminates-...

[8] In 2010, the OHRC reached a settlement in human rights complaints against the Toronto Police Services Board involving their police record check policy and practices (see “Expanding mental health horizons” in OHRC 2009-10 Annual Report, online: www.ohrc.on.ca/sites/default/files/attachments/Annual_report_2009-2010_E...).

[9] See OHRC March 2011 letter, supra note 5. Also see Police Records Check Coalition, online: www.mentalhealthpolicerecords.ca. Also see “Criminal records and record of offences” under section 4.1 in Right at home: Report on the consultation on human rights and rental housing in Ontario (OHRC 2008) online: www.ohrc.on.ca/sites/default/files/attachments/Right_at_home%3A_Report_o....

[10] See “vulnerable person” under section 6.3 of the Criminal Records Act (R.S.C., 1985, c. C-47), online: http://laws-lois.justice.gc.ca/eng/acts/c-47/.

[11] See for example J.N. v. Durham Regional Police Service, 2012 ONCA 428 (CanLII).

[12] Supra, note 4.

[13] While the Criminal Records Act appears to limit the circumstances where police forces can perform a PVSC, in accordance with the principal that individuals should have access to information about themselves, the government should explore a mechanism that would permit individuals to find out what will be disclosed.

[14] Letter from the Ontario Human Rights Commission to the Ministry of the Attorney General (June 4, 2009), online: www.ohrc.on.ca/en/letter-attorney-general-regarding-police-record-checks....

[15] See section IV.6.f “Police Record Checks” in Human Rights at Work (OHRC 2008), online: www.ohrc.on.ca/en/iv-human-rights-issues-all-stages-employment/6-request.... Also, the Ontario Human Rights Commission wrote to the OACP, the Ontario Provincial Police and municipal police services province-wide about the matter (January 22, 2007, unpublished).

[16] Ontario Ministries of Community Safety and Correctional Services and Citizenship and Immigration, An Overview of Provincially Mandated Police Records Checks: A Resource for Ontario’s Not-for-Profit Sector (publication date unknown), online: www.citizenship.gov.on.ca/english/pp/police_records_checks/police_record....

[17] See Ontario Human Rights Commission letter to the Ministry of Community and Social Services (April 2010) regarding draft regulations for enactment Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008, online: www.ohrc.on.ca/en/re-draft-regulation-quality-assurance-measures-service.... Also see Submission of the Ontario Human Rights Commission to the Standing Committee on Social Policy on an Act to regulate retirement homes (May 2010), online: www.ohrc.on.ca/en/submission-ontario-human-rights-commission-standing-co....

[18] See Ontario Human Rights Commission letter to the Town of Ajax (November 2013) regarding proposed lodging house licensing bylaw, online: www.ohrc.on.ca/en/news_centre/proposed-lodging-house-licensing-bylaw-and....

[19] See “Police record checks and vulnerable person screening” and recommendation 22 under section 12.1, as well as “criminal records” under sections 11.2 and 13.4, in Minds that matter: Report on the consultation on human rights, mental health and addictions (OHRC 2012), online: www.ohrc.on.ca/sites/default/files/Minds%20that%20matter_Report%20on%20t.... Also see “Talking about Canadian experience” (fact sheet on OHRC consultation survey 2012), online: www.ohrc.on.ca/en/talking-about-canadian-experience-fact-sheet. Also see Right at Home report, supra note 7. Also see “Human Rights Commission releases draft policy on mental health discrimination and police record checks for consultation” (OHRC 2008), online: www.ohrc.on.ca/en/news_centre/human-rights-commission-releases-draft-pol... (note: ultimately the OHRC chose not to release a final policy and instead supported the development of the OACP’s Guideline).

[20] See “security clearance”, pages 7, 32 and 48 in "Paying The Price: The Human Cost of Racial Profiling" (OHRC 2003), online: www.ohrc.on.ca/sites/default/files/attachments/Paying_the_price%3A_The_h....

[21] See John Howard Society of Ontario and Canadian Civil Liberties Association reports, supra note 2.

[22] See John Howard Society of Ontario and Canadian Civil Liberties Association reports, supra note 2.

[23] Under section 10 of Ontario’s Human Rights Code, “record of offences” means a conviction for, (a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or (b) an offence in respect of any provincial enactment.

[24] See section 24 (1)(b) and (2) of the Code.

[25] British Columbia’s Human Rights Code provides for protection from discrimination in employment and in vocational associations “because a person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person”, online: www.bclaws.ca/Recon/document/ID/freeside/00_96210_01

[26] Prince Edward Island’s Human Rights Act provides for protection from discrimination in employment “because the individual has been convicted of a criminal or summary conviction offence that is unrelated to the employment or intended employment of the individual”, online: www.gov.pe.ca/law/statutes/pdf/h-12.pdf.

[27] Newfoundland’s Human Rights Act provides for protection from discrimination in employment “because of the conviction for an offence that is unrelated to the employment of the person”, online: http://assembly.nl.ca/Legislation/sr/statutes/h13-1.htm.

[28] Section 18.2 of Quebec’s Charter of Human Rights and Freedoms provides that “No one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence”, online: www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/C_12/C12_A.htm.

[29] Yukon’s Human Rights Act provides for protection from discrimination because of “criminal charges or criminal records” unless the treatment is “relevant to the employment”, online: www.yhrc.yk.ca/pdfs/Unofficial%20Consolidation%20ENG%20YHR%20Act%20may%2....

[30] See John Howard Society of Ontario report, supra note 2, at page 14: “[A]mendments to federal legislation have exacerbated the impact of having a record of conviction. For example, Bill C-23A, which came into effect in June 2010, placed restrictions on eligibility for record suspensions (formerly called pardons) in Canada, resulting in a marked decrease in the number of applications, submitted and/or processed, from 12,379 in 2010-11 to 3,546 in 2011-12 (PSC 2012).1212[T]he pardon regime was again amended in 2012 to even further restrict Canadians’ access to a record suspension (pardon).”

[31] See McKenzie v. Ontario (Government Services), 2010 HRTO 1186 – discharges not protected by the Code; de Pelham v. Mytrak Health Systems, 2009 HRTO 172; Hussey v. Big Brothers Big Sisters of Peterborough Incorporated, 2013 HRTO 16; Nyilas v. Toronto Police Service, 2010 HRTO 1965; Jamal v. First Student Canada, 2009 HRTO 2083 – Code only protects someone with a pardon; does not protect someone simply charged with an offence. However, in Clement v. Jackson (2006), 57 C.H.R.R. D/507 (BCHRT), the British Columbia Human Rights Tribunal found that protection is available to persons merely charged with an offence even though the explicit protection in that Code is for someone convicted of an offence. All decisions are available on CanLII: www.canlii.org.

[32] Pending Charter Application before the Superior Court of Justice; Mark de Pelham v. Ontario (Attorney General).

[33] See Canadian Civil Liberties Association report, supra note 2.

[34] Media accounts include a Toronto Star investigation highlighting stories of unproven allegations ruining lives (May 17, 2014), online: www.thestar.com/news/canada/2014/05/17/no_charges_no_trial_but_presumed_....

[35] See John Howard Society of Ontario and Canadian Civil Liberties Association reports, supra note 2.

[36] See section 4.2.9 “Criminal or other police record checks” in Policy on human rights and rental housing (OHRC 2009), online: www.ohrc.on.ca/sites/default/files/attachments/Policy_on_human_rights_an....

[37] OHRC’s letter to Toronto Police Services Chief and Chair (August 1, 2014, unpublished) and OHRC letter to Ontario’s Information and Privacy Commissioner (August 8, 2014, unpublished).

[38]Supra note 5.

[39] See OHRC submission to the Ombudsman’s Investigation into the direction provided to police by the Ministry of Community Safety and Correctional Services for de-escalating conflict situations (July 2014), online: www.ohrc.on.ca/en/submission-ohrc-ombudsman%E2%80%99s-investigation-dire.... Also see, “OHRC praises jury recommendations in Jardine-Douglas, Klibingaitis and Eligon inquest, calls for action” (February 2014), online: www.ohrc.on.ca/en/news_centre/ohrc-praises-jury-recommendations-jardine-.... Also see “OHRC letter on eliminating racial profiling in police services” (April 2015), online: www.ohrc.on.ca/en/news_centre/ohrc-letter-eliminating-racial-profiling-p....