CRIMINAL CHARGES, CONVICTIONS AND CHECKS

Criminal Lawyers in Toronto, Ontario, and all across Canada, would agree that their clientele does not solely consist of the stereotypical seasoned career criminals. In fact, many of our clients have been charged with a criminal offence for the first time;  common offences include assault, domestic assault, theft under $5000, uttering threats and possession of a illegal substance.

Many of these first-time offences are resolved through a variety of dispositions including a withdrawal, stay of proceedings, absolute discharge, conditional discharge, and others. Regardless of how the matter is resolved, these clients are almost always concerned about whether or not they have a criminal record now.

If an accused person is convicted of an offence, the Canadian Police Information Centre (CPIC), which is managed by the Royal Canadian Mounted Police (RCMP), enters the information into its automated criminal convictions records system, and as a result, is accessible by police agencies all across Canada, as well as with law enforcement authorities in the United Stated of America and other countries.

A conviction is a finding of guilt beyond a reasonable doubt, whether a person pleads guilty or, is found guilty by a judge or jury. If  the disposition ordered by the judge includes one or a combination of a discharge (absolute or conditional), suspended sentence, probation, fine, conditional sentence, or jail sentence, then the accused person is the owner of a brand new criminal record and has earned a spot in the CPIC database.

Furthermore, any run-ins or contact with the police may be recorded and stored in their own database for future use as an investigative tool. This type of information is commonly referred to as non-conviction information and may include records of contact with police, allegations, charges that have been withdrawn, acquittals, mental health apprehensions and much more. The decision to disclose non-conviction information via police record checks was previously made by each individual police agency in Ontario. Consequently, the lack of guidelines was responsible for many police agencies disclosing very sensitive information which had detrimental effects for many.

The law regarding what type of information could and could not be disclosed was unclear and Ontario needed a step in the right direction. The rights of individuals who have not been convicted of a criminal offence deserves greater protection.

PROTECTING PRIVACY OF PUBLIC

As of December 1^st, 2015, the provincial legislature of Ontario has passed Bill 111 – Police Record Checks Reform Act, 2015. For the first time, the province of Ontario now has a comprehensive legislative guideline for how police record checks are to be conducted.

Prior to the passing of Bill 111- Police Record Checks Reform Act, 2015, the practice and policies for police record checks varied from jurisdiction to jurisdiction. There was no consistency with regards to the kinds of police record checks available, the type of information that was disclosed, and how and to whom the information is disclosed.

The legislation creates a consistent framework for what type of information can be released, as well as reduces the disclosure of non-conviction information by police. Police are now required to consider a variety of factors prior to determining whether non-conviction information should be disclosed; such factors relate to the protection of vulnerable person’s such as children and seniors.

There are now three types of police record checks:

1) Criminal Record Check: Provides information pertaining to criminal convictions and findings of guilt under the Youth Criminal Justice Act.

2) Criminal Record and Judicial Matters Check: Includes the Criminal Record Check information, in addition to outstanding charges, arrest warrants, certain judicial orders, absolute discharges, conditional discharges, other records as authorized by the Criminal Records Act.

3) Vulnerable Sector Check: Discloses both the Criminal Record and Judicial Matters Check, as well as findings of Not Criminally Responsible due to mental disorder, record suspensions (pardons) related to sexually-based offences, and non-conviction information related to the predation of a child or other vulnerable person (i.e., charges that were withdrawn, dismissed or stayed, or that resulted in acquittals).

Prior to disclosure of the results, the police must provide the record to the individual subject to the request in order to obtain their consent for releasing the information to a third party. Any issues with the information may be submitted to a reconsideration process.

Standard criminal record checks will now only disclose criminal convictions and findings of guilt under the Youth Criminal Justice Act, while a criminal record and judicial matters check can potentially disclose conditional discharges for up to three years, absolute discharges for up to one year, outstanding warrants and certain court orders. In addition, the highly controversial police investigative technique known as ‘carding’ will no longer be disclosed in police record checks under the new provincial regime.

While the province deserves praise for taking steps in the right direction, greater strides will be needed to ensure compliance with these legislative guidelines.