Human Rights & Criminal Records

Written on behalf of Peter McSherry
age discrimination
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Persons with an existing record of a conviction under the Criminal Code of Canada or a provincial statute may well be concerned over an employer’s request for a police records check.

Most people would reasonably believe that a criminal records check is just that – a check of whether there is a record of criminal conviction. Often this is not the case.

These issues are presently in debate by proposed amendments to the present law which propose to offer additional protections to people facing these questions.

The Existing Protections

Ontario’s Human Rights Act protects individuals who have been found guilty of a criminal act and subsequently pardoned. The same law denies adverse treatment in employment due to a conviction of a provincial offence, such as a speeding or similar issue.

The Act does not address criminal charges which have resulted in an acquittal (i.e a finding that a person is not guilty). Case law in British Columbia[1],  interpreted similar legislation and concluded that it would not make sense to protect a person found to be guilty (and later pardoned), but expose a person who had been found not guilty to adverse treatment. For that reason, a “criminal conviction” was also read to include a criminal charge which resulted in an acquittal. It has been expected that the same interpretation would apply to Ontario law.

Police Records

To make matters more complicated here in Ontario, it is the practice of the police in the province to record contacts with innocent persons, even where no charges have been laid. This could include cases in which charges were commenced but later dropped by the Crown Attorney. These records could also show 911 calls made to the police by persons in emotional distress or in a suicidal state, or where persons are the victim of criminal conduct or a witness to it. Also included are details of any “carding” incidents, which tend to be racially biased.

The decision of what information to record and then released by a police records search is not a provincial standard. This decision is now one of policy determined by each local police force.

A virtually unknown statute, the Police Record Checks Act, Bill 113 was passed in 2015, yet has not been proclaimed as law. This law does propose a provincial standard on what information is to be included in a criminal records check. It also allows an individual, in most cases, to review their record prior to its disclosure and object to the release of “non-conviction information”. This includes mental health information, details of contact with local police, details such as providing evidence as a witness or as a victim of a crime, or details of non-criminal contact with police during a mental health crisis.

This clearly will be an issue to those persons who have had such incidental police contact where no finding of guilt was made or more significantly, where no charge was even contemplated. It seems unfair to allow for the revelation of such personal medical information or personally sensitive details which are completely unrelated to what most persons would believe to be a “criminal record” check.

Proposed Reform

A revision has now been proposed to the Human Rights Act, Bill 164 The Human Rights Code Amendment Act. This bill passed second reading in October. If made into law, this will make the Police Record Checks Act irrelevant and create substantive amendments to the law.

The proposed Bill seeks to create a new protected right of “police records” which includes any pending charge, any conviction (even where there has been no pardon) and any details of police involvement, including any “non-criminal contact” with police. This will thus prevent an employer from knowing of any prior criminal convictions an employee may have. It is expected that there will be further amendments to the proposed law, at the very least for situations involving the employment of people in trusted and sensitive positions such as teachers, coaches, or the care of the elderly.

Get Advice & Take Action

If you are a person seeking new employment and have a prior criminal conviction, it is certainly in your interest to obtain a pardon and hence be protected under the present law. You should also know that there is presently no requirement to reveal a conviction of a provincial offence. If you have been acquitted of a criminal charge, you should have the same protections. If you have had contact with the police, you can obtain details of this information and even presently, request that this information not be shared or be detailed about what information you agree to release.

If you are seeking preventive advice or facing adverse action due to past criminal conduct, contact the offices of Guelph employment lawyer Peter McSherry. We can guide  you through the issues and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.




[1]  Junkin v B.C.