Apr 2018 Charity & NFP Law Update
On March 28, 2018, the Ministry of Community Safety and Correctional Services introduced Proposal No. 18-CSCS006 (the “Proposal”) for public review and feedback until April 9, 2018. The Proposal contains a summary of a draft Exemptions Regulation and draft Operational Requirements Regulation under the Ontario Police Record Checks Reform Act, 2015 (the “PRCRA”). While the PRCRA received Royal Assent on December 3, 2015, it has not yet been proclaimed in force. As previously discussed in the January 2016 Charity & NFP Law Update, the PRCRA implements a new standardized regime governing police record checks across Ontario. The Proposal outlines the draft regulations necessary for the proclamation of the PRCRA.
The draft Exemptions Regulation outlines circumstances where a police record check would not have to comply with certain requirements under the Act. In that regard, the draft Exemptions Regulation proposes to exempt from the information disclosure restrictions under the PRCRA for employees, volunteers and service providers who come into direct contact with students in schools and child care settings for a period of one year from after the PRCRA comes into force in order to provide a transition period to permit organizations subject to the PRCRA to comply.
The draft Exemptions Regulation proposes to exempt police record checks conducted by organizations that have direct access to police databases from the PRCRA requirement to provide the police record checks to the individual before it is seen by the organization making the screening decision. This is because in some cases, the organization conducting a police record check is the same organization that intends to use the check to make a screening decision and it is therefore not possible to have the individual be the first to review the information. Examples of such organizations include the police services (who carry out police checks for internal hiring purposes), the Financial Services Commission of Ontario (which carries out police checks prior to licensing insurance agents) and others.
The draft Exemptions Regulation proposes to exempt caregivers, employees, volunteers, and students in licensed residential care settings providing care or services directly to children or youth, as well as prospective adoptive families and others from the PRCRA. This exemption is proposed in order to allow for a higher level of screening for the individuals outlined above.
The draft Operational Requirements Regulation specifies operational procedures that must be followed by police record check providers when they conduct police record checks. In relation to the disclosure of youth records, the draft Operational Requirements Regulation provides that records involving findings of guilt under the Youth Criminal Justice Act (YCJA) must be disclosed in a “separate record.” This ensures that an individual can receive their youth records, review them, and remove the separate page(s) when providing the remainder of the police record check to others, including prospective employers.
One of the three standard types of checks under the PRCRA is a vulnerable sector check (“VSC”), which is used to determine an individual’s suitability to work or volunteer in a position of trust or authority over vulnerable persons. The PRCRA defines a “vulnerable person” as 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.
Under the PRCRA, the VSC is the only type of check in which a “non-conviction record” may be considered for potential disclosure. In determining whether a non-conviction record should be released as part of the VSC, a police service must ensure that the charge that resulted in the non-conviction record (1) relates to an offence specified in regulation(s); (2) the alleged victim of the charge was a child or vulnerable person; and (3) a review of police entries relating to the individual, based on specific factors (e.g., the number of incidents, why the incident did not result in a conviction), provides reasonable grounds to believe the individual has been engaged in a pattern of predation and presents a risk of harm to a child or vulnerable person.
The draft Operational Requirements Regulation also provides for reconsideration of disclosure of non-conviction records when an individual’s “non-conviction record” is included in a police record check. In that regard, the PRCRA provides that an individual can submit a request for reconsideration which could result in either the original decision being overturned and the non-conviction being removed from the police record check result; or the original decision being upheld and the non-conviction record remaining in the police record check result.
It is now industry standard for charities and not-for-profits that carry out programs involving vulnerable persons (including children, the elderly and other vulnerable adults) to require a VSC to help screen prospective volunteers, employees, and directors. The VSCs are an important screening measure to help to screen potential predators who may have previous convictions or charges, from working with vulnerable persons. The VSCs are also required by most insurers as a condition of abuse coverage.
As the new regime for police record checks is implemented in Ontario over the coming years, charities and not-for-profits should monitor those developments so that they can make the appropriate adjustments to their own policies and protocols used to screen individuals who will work with vulnerable persons. It should be noted that the VSCs are merely one step and on their own are inadequate as a screening tool, especially since some predators are first time offenders with no prior criminal records or charges. As such, VSCs should always be used in conjunction with other measures, such as a child protection policy or vulnerable persons’ policy that is consistently implemented within the organization’s programs.