August 1st, 2018 | Sterling

Answers to Your Questions for Ontario’s Police Record Checks Reform Act

A few weeks ago, Sterling Talent Solutions’ Mark Sward, Assistant Vice President, Global Privacy and Sophia Blanc, Director of Global Product Management presented “Ontario’s New Police Record Checks Reform Act (Bill 113): What Happens on November 1^st?” They explained the history behind the law, the changes that could impact the criminal records check process, important details about the law and possible future changes. We had so many webinar attendee questions from the webinar, so we thought it would be a great idea to share Mark and Sophia’s answers. We have split the questions into three topics: the law’s impact on background checks, the candidate consent process and result reporting process.

The Ontario Police Record Checks Reform Act Impact on Background Checks

• Does the new law impact other background check services such as employment checks?

  No, the new law only applies to searches of information held by agencies responsible for providing police services in Canada. It does not apply to records held by other organizations like employers, educational institutions or courts.

• Does the new law apply to international background checks?

  No, it only applies to information held by Canadian law enforcement agencies. It does not apply to records held by foreign authorities.

• Do the updates also include volunteer background checks?

  Yes, the Act applies to background checks for volunteer purposes. It does not make any distinction based on the general purpose for the background check. It does, however, exempt certain activities from some or all of the rules.

• What step in the hiring process do you suggest we initiate the background check for compliance purposes and why?

  There are no strict rules in Ontario around when screening can be carried out. However, many employers find that, in the interests of fairness and privacy, it makes the most sense to conduct the background check once they have selected their candidate of choice. This approach also helps avoid human rights and privacy pitfalls in other Canadian provinces.

• Does the candidate written consent also count for local police station checks?

  Whether a check is completed by a local police station or a third-party screening company, consent requirements in the law apply.

• What if there is no information in the criminal record check report? Does the candidate still need to provide consent before sharing with an employer?

  The law does not currently distinguish between results that contain no information and results that contain police records. This suggests that a second consent is required regardless of whether the actual information is disclosed.

• Because the consent step will add additional time, could we start background screening earlier in the hiring process?

  Each organization must make its own determination as to when to start the background screening process, taking into account its own circumstances and risks.

• If a candidate discloses a summary conviction that is older than five years, will the file return “not accurate”?

  Summary convictions are not typically held in the Canadian Police Information Centre (CPIC) unless combined with an indictable offence. CPIC contains convictions for which a person has been fingerprinted. In Canada, fingerprints are rarely taken for summary offences. RCMP policy does not provide for limiting confirmations of disclosures based on timeframe.

• Will you be looking at changing your background forms so that it contains a section giving the written consent for the employer will be able to see the results of the clearances so that it does not delay the outcome?

  We are exploring all options for streamlining compliance. This will also depend on further discussions with the new Ontario government as to how they intend to interpret and enforce the law. Ultimately, though, we will comply with the letter of the law.

• So, if a candidate refuses to consent and refuses to complete the check, are we entitled to retract the offer of employment?

  In Ontario, employers are permitted to require criminal record check results as a condition of employment. If a candidate refuses to provide those results, it is common for Ontario employers to refuse to consider the candidate.

• If we send the request to the police station and the results are sent to the candidate are they able to send those results to us without going through a 2nd consent?

  Like third-party screening providers, police stations will not be able to provide results directly to an employer without obtaining a second consent from the candidate. While a candidate can share his or her own results with you at any time, obtaining results directly from a candidate introduces significant variables and risks to the screening process, including increased costs and turnaround times, and the possibility of modification or falsification of results by the candidate.

Candidate Consent Process

• How will a candidate review their background screening results?

  The candidate will be sent an email invitation with a link to view their results in our secure portal.

• What happens if a candidate does not give consent to release their background check results?

  The Canadian Criminal Record Check will be closed as Unable to Complete, with a statement indicating the candidate declined to release their criminal record check results.

• Will a company have insight into whether or not the candidate declined to provide consent to the results?

  Yes, the company will know when a candidate has declined to provide consent to share the results.

• To clarify, if a candidate refuses to consent to release, we will receive notification of “Unable to complete.” Can we assume this term strictly means that the candidate is unwilling to consent, versus other reasons why the check is “unable to complete.”

  When a Canadian Criminal Record Check is Unable to Complete, there is an additional statement provided to give insight as to the reason for that status. This statement helps differentiate between multiples reasons for closing the search, such as missing information.

• Will the candidate be given or can we give a timeline for the turnaround of the 2nd consent?

  Yes, we will provide candidates with a timeline before the Canadian Criminal Record Check is closed. We plan to highlight the urgency to complete the second step when contacting the candidate.

• What are the expected time delays due to the 2nd consent?

  As this is an entirely new process, we do not yet know the expected time delays due to this additional step.

• If a candidate does not provide consent to release CRC result can Sterling provide the result as “Candidate decline consent” instead of Unable to Complete?

  Not at this time, but the statement for the Unable to Complete status will provide clarity as to why the search was closed without a result.

• Will Sterling notify the applicant that their consent is needed to finalize the release ahead of time to avoid any delays?

  Yes, we will warn candidates of the potential second step during the data collection step.

Result Reporting Process

• In what format do the results get sent to the person? Are there safeguards in place to prevent a person from altering their results before showing them to a prospective employee?

  The results will be displayed to the candidate via a secure portal. They will only be able to view results and will not be able to modify them through this portal. However, this step will give candidates the opportunity to dispute the result before it is shared. To do so, they will need to contact our Privacy department and follow our existing dispute process. The shared result with the client will then be the final, accurate result.

• We only submit via paper-based How should we prepare to be ready for this change?

  We recommend you speak with our Client Services team or Account Manager about our online ordering portal. A paper-based process is not easily compatible with the new requirements of the law.

• What happens if the candidate does not have an email regarding getting the secondary written consent to release it to the employer.

  We will not be able to share results with the candidate or collect their written consent if they do not have an email.

• If the organization is paying for the PRC will they still be charged for those who decline sharing results?

  Yes, the organization will still be charged for the Canadian Criminal Record Check as the search was completed even though the results could not be shared.

• If a candidate refuses to consent, would we, as an organization be charged a fee for the background check?

  Yes, because the entire search will have been completed we will still need to charge for the background check.

Listen to the OnDemand Webinar

The Police Record Checks Reform Act goes into effect on November 1, 2018. Since the law was signed at the end of April, there has been a provincial election and a change of government, which may change Ontario’s approach to regulating criminal record checks. For more information on the changes required under the Act, listen to an OnDemand version of the “Ontario’s New Police Record Checks Reform Act (Bill 113): What Happens on November 1^st?” webinar.

Please note: Sterling Talent Solutions is not a law firm. The material available in this publication is for informational purposes only and nothing contained in it should be construed as legal advice. We encourage you to consult with your legal counsel to obtain a legal opinion specific to your needs.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.