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Police - Police Record Checks Reform Act (PRCRA). A. S. v. Peel Regional Police
In A. S. v. Peel Regional Police (Div Court, 2023) the Divisional Court considered a JR of decisions under the Police Records Checks Reform Act (PRCRA), here where a local police service "refused to remove non-conviction information relating to him in its response to his request for a Vulnerable Sector Check (“VSC”)". These quotes illustrate the related PRCRA procedures, and adds a brief purposive description [at para 42]:[9] The non-conviction information was included in the VSC after the PRP had completed an Exceptional Disclosure Assessment form pursuant to ss. 9 and 10 of the PRCRA. Sections 9 and 10 of the PRCRA provide as follows:Disclosure in accordance with Schedule
9. A police record check provider shall not disclose information in response to a request for a police record check unless the information is authorized to be disclosed in connection with the particular type of police record check in accordance with the Schedule.
Exceptional disclosure of non-conviction information, vulnerable sector check
10.(1) This section applies with respect to the disclosure of non-conviction information in response to a request for a vulnerable sector check in respect of an individual.
Criteria for exceptional disclosure
(2) Non-conviction information about the individual is not authorized for exceptional disclosure unless the information satisfies all of the following criteria:1. The criminal charge to which the information relates is for an offence specified in the regulations made under subsection 22(2)(c).
2. The alleged victim was a child or a vulnerable person.
3. After reviewing entries in respect of the individual, the police record check provider has reasonable grounds to believe that the individual has been engaged in a pattern of predation indicating that the individual presents a risk of harm to a child or a vulnerable person, having regard to the following:i. Whether the individual appears to have targeted a child or a vulnerable person.
ii. Whether the individual’s behaviour was repeated and was directed to more than one child or vulnerable person.
iii. When the incident or behaviour occurred.
iv. The number of incidents.
v. The reason the incident or behaviour did not lead to a conviction.
vi. Any other prescribed considerations. Format of disclosure
(3) When disclosing a record containing non-conviction information authorized for exceptional disclosure, the police record check provider shall ensure that the record contains the definition of “non-conviction information” found in this Act and that the information is clearly identified as such.
Reconsideration
(4) If the individual submits a request for reconsideration in accordance with the regulations, the provider shall, within 30 days after receiving the reconsideration request, reconsider its determination in accordance with any requirements prescribed by the Minister.
Result of reconsideration
(5) Non-conviction information shall not be disclosed if, after a reconsideration, the provider determines the information does not meet the criteria listed in subsection (2). [10] An Exceptional Disclosure Assessment form was completed by the PRP and contained a list of questions and answers that included additional information about the reasons for the initial decision to disclose the non-conviction information, as well as a list of persons consulted in the process.
[11] The answers to the questions on the form confirmed that the four charges against the Applicant fell within the list of offences for exceptional disclosure and stated that each of the incidents included victims under the age of 18. The additional information given on the form included details about why the Applicant was not convicted on the charges.
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[16] On December 11, 2020, the Applicant submitted a request for reconsideration of the VSC response and sought removal of the non-conviction information contained in it.
[17] On December 15, 2020 the PRP refused the reconsideration request. The PRP provided reasons for this refusal, which included the basis for its determination that the requirements imposed by ss. 9 and 10 of the PRCRA had been met:(a) The four charges to which the non-conviction information relates are for offences specified in the regulations made under subsection 22(2)(c) of the PRCRA;
(b) At least one of the alleged targeted victims in each of the charges was a child or a vulnerable person;
(c) There were reasonable grounds to believe that the Applicant has been engaged in a pattern of predation. [18] The Applicant sought judicial review of the reconsideration decision. On January 11, 2022 his application was granted by a panel of the Divisional Court (see: A.S. v. Peel Regional Police, 2022 ONSC 127).
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[42] Although the legislation has an objective of protecting the privacy and liberty of an accused person, it also has the purpose of ensuring the safety of communities and of protecting children and other vulnerable persons. Also, the rights of the accused person are observed by ensuring that the information provided pursuant to the legislation clearly acknowledges that the charges did not result in any convictions. The court continues at paras 19-52 to consider the applicant's issues and arguments, ultimately dismissing the application.
. A.S. v. Peel Regional Police
In the quoted passages of A.S. v. Peel Regional Police (Div Ct, 2021), the Divisional Court described the relatively new Police Record Checks Reform Act, 2015 in the course of a successful application for judicial review.
The balance of the case (unquoted) is about over-disclosure in the check that the police record check provider (a local police inspector) provided regarding non-conviction records:Vulnerable sector checks
[4] The PRCRA is relatively recent legislation regarding police record checks that are requested to determine a person’s suitability for employment, among other activities. The PRCRA standardizes the way police record checks are done in order to have a more efficient and predictable process and provides the opportunity for people to receive a copy of their record, review it prior to its release, and seek a reconsideration.
[5] The PRCRA is intended to both remove unnecessary barriers to employment and protect community safety and vulnerable persons by ensuring that employers have all the necessary information to make employment decisions: Ontario, Legislative Assembly, Standing Committee on Justice Policy, Official Report of Debates (Hansard), 41st Parl., 1st Sess., (30 November 2015), at p. 6813 (Hon. Bas Balkissoon).
[6] The PRCRA addresses three types of police record checks: a criminal record check, a criminal and judicial matters check, and a vulnerable sector check. In this case, the applicant requested a vulnerable sector check.
[7] The response to the applicant’s vulnerable sector check consisted of non-conviction information. Non-conviction information includes information concerning the fact that an individual was charged with a criminal offence where the charge was dismissed, withdrawn, stayed, or resulted in a stay of proceedings or acquittal.
[8] The PRCRA limits the extent to which non-conviction information is disclosed. Sections 9 and 10 provide as follows:9 A police record check provider shall not disclose information in response to a request for a police record check unless the information is authorized to be disclosed in connection with the particular type of police record check in accordance with the Schedule.
10 (1) This section applies with respect to the disclosure of non-conviction information in response to a request for a vulnerable sector check in respect of an individual.
(2) Non-conviction information about the individual is not authorized for exceptional disclosure unless the information satisfies all of the following criteria:1. The criminal charge to which the information relates is for an offence specified in the regulations made under subsection 22 (2) (c).
2. The alleged victim was a child or a vulnerable person.
3. After reviewing entries in respect of the individual, the police record check provider has reasonable grounds to believe that the individual has been engaged in a pattern of predation indicating that the individual presents a risk of harm to a child or a vulnerable person, having regard to the following:
i. Whether the individual appears to have targeted a child or a vulnerable person.
ii. Whether the individual’s behaviour was repeated and was directed to more than one child or vulnerable person.
iii. When the incident or behaviour occurred.
iv. The number of incidents.
v. The reason the incident or behaviour did not lead to a conviction.
vi. Any other prescribed considerations. (3) When disclosing a record containing non-conviction information authorized for exceptional disclosure, the police record check provider shall ensure that the record contains the definition of “non-conviction information” found in this Act and that the information is clearly identified as such.
(4) If the individual submits a request for reconsideration in accordance with the regulations, the provider shall, within 30 days after receiving the reconsideration request, reconsider its determination in accordance with any requirements prescribed by the Minister.
(5) Non-conviction information shall not be disclosed if, after a reconsideration, the provider determines the information does not meet the criteria listed in subsection (2).
[Emphasis added.]
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