The Honourable Sylvia Jones
18th Floor, George Drew Building
25 Grosvenor Street
Toronto, Ontario M7A 1Y6
Dear Solicitor General Jones:
Re: Regulatory Registry Proposal Number 21-SOLGEN001 – Police Record Checks Reform Act, exemptions proposal
I hope this letter finds you well. The Ontario Human Rights Commission (OHRC) makes this submission to your Ministry’s review of O. Reg. 347/18 under the Police Record Checks Reform Act, 2015 (PRCRA) to determine whether any of the prescribed temporary exemptions should continue, be narrowed or removed.
As your review recognizes, police databases contain a wide range of information that, when disclosed, may result in individuals facing unnecessary barriers to employment, volunteering, entering education or a profession, or accessing programs or services. The OHRC welcomes the Ministry’s stated desire to narrow the scope of exemptions from the PRCRA regime. Thank you for leading this important review.
Given the disproportionate and unfair impact that police record checks have on vulnerable groups, the OHRC urges Ontario to adopt regulations that limit the scope of any exemption to the PRCRA only in narrow demonstrably necessary circumstances. The OHRC further urges Ontario to maintain the Act’s procedural protections for all police record checks, including exempted checks.
For many years, the OHRC has worked to highlight the unfair impact that police record checks have on vulnerable groups. OHRC consultations, public inquiries, research and litigation have highlighted concerns about the disproportionate impact of police record checks on access to employment, housing, education, volunteer activities and other services for people with mental health disabilities and substance addictions, Indigenous people, and Black and other racialized communities and other vulnerable groups. These groups experience systemic discrimination contrary to the Human Rights Code (Code) that results in disproportionate contact with the criminal justice system.
In 2011, the OHRC advised the Ontario Association of Chiefs of Police as it developed its first police record checks guideline and endorsed its release. In 2015, the OHRC made a submission supporting the proposal for new police record checks legislation, enacted later that year. At that time, the OHRC also cautioned that more changes were needed.
Because of the potential for adverse discrimination, the OHRC maintains its long-held position that organizations requesting and using police record checks, and organizations providing the information, must have a bona fide and reasonable basis within the meaning of the Code for doing so.
In light of our ongoing concerns, and the concerns of many other stakeholders, the OHRC recommends the following:
- Any exemptions to the PRCRA should be narrowly tailored to make sure that non-criminal information is only released when access to a specific class of information is demonstrably necessary because of safety or security concerns related to a specific occupation. Broad, sector-wide exemptions should be rejected. To decide if there is a bona fide need for information beyond what the PRCRA covers, both the specific occupation(s) and the specific non-criminal information being exempted should be clearly identified and assessed.
For example, while the consultation documents highlight the need to limit the disclosure of mental health contact information contained in police records, many of the proposed sector-wide exemptions fail to limit the availability of such information. Disclosure of such information always risks perpetuating stigma and discrimination regarding mental health issues. Given that police are not mental health professionals and do not document mental health information for clinical purposes, the circumstances in which the probative value of such information outweighs its potentially discriminatory impact will be exceedingly rare and any exemptions should clearly identify why access to such information would be necessary for a specific occupation.
- Further to the Ministry’s stated desire in the consultation documents to strengthen protections relating to the use of information from street checks under the PRCRA, street check information obtained prior to Regulation 58/16 coming into force should not be used or disclosed in any circumstances relating to the PRCRA. It is widely recognized that street checks before 2017 were conducted in a haphazard way and disproportionately involved Indigenous, Black, and other racialized people and marginalized groups. Using and disclosing information collected through such an unreliable and widely condemned process can only compound its discriminatory effects.
- Even where an exemption is in place, the procedural protections available under the PRCRA should apply. These would include the manner and procedures for requesting, conducting and disclosing police record checks, the consent, correction of record information, and reconsideration processes, and the restrictions on the use of the information, statistics and third-party agreements.
Because of the disproportionate impact of police record checks on vulnerable groups, the OHRC continues to be concerned that the PRCRA does not have provisions to make sure persons or organizations involved in requesting, disclosing or receiving information from a police record check show or confirm it is for a bona fide and reasonable purpose. The OHRC recommends Ontario consider how the PRCRA might be used or amended to address this concern.
The OHRC also reaffirms its long-standing call for adding a new “police records” ground to the Code, defined as “charges and convictions, with or without a record suspension, and any police records, including records of a person's contact with police.” The OHRC believes this change to the Code, and our recommended changes above, would better balance social policy goals for public safety, crime prevention, offender rehabilitation, privacy and human rights.
I look forward to an opportunity when we might meet to discuss the OHRC’s recommendations on police records and on other human rights issues of mutual importance to our communities.
Ena Chadha, LL.B., LL.M.
cc: Michael Bryant, Executive Director and General Counsel, Canadian Civil Liberties Association
Patricia Kosseim, Commissioner, Information and Privacy Commissioner of Ontario
Hon. Doug Downey, Attorney General