Police Record Checks Reform Act 2018 (PRCA)
The new Police Record Checks Reform Act in Ontario came into effect on November 1, 2018 and currently only affects criminal record check protocol in Ontario.
Specifically this change affects Disclosure of Youth Records including police no longer conducting criminal record checks for volunteers under the age of 18. (Refer over for excerpts from the Act below)
Therefore in light of this change, we are advising our client organizations, including churches and any other charities serving children, youth and vulnerable adults, who utilize 16 and 17 year olds as leaders, of the following changes:
If your organization is doing all of the other required screening measures, including targeted recruitment of volunteers (i.e. not taking”all comers”); personal interviews; background reference checks; six-month waiting period for newcomers to the organization: and volunteer applications etc., then . . .
- Continue to fully screen, with just the exception of a Criminal Record Check for 16 and 17 year olds:
- Never leave a minor youth leader alone without two screened adults; or at least one screened adult plus a hall monitor checking the room periodically
From a legal and insurance standpoint, the underlying principal remains demonstrating due diligence to the extent possible (i.e. the most comprehensive criminal record check available) with respect to those who are working with vulnerable persons.
That is the legal duty of care required of any reasonable and prudent person or organization in order to prevent abuse from happening in the first place; and if it does happen, to provide both an effective civil defense in a lawsuit, and a positive testimony in the eyes of the communities you serve i.e. “we as an organization screened to the extent available to us”.
The major concern without a clear criminal record check in hand for under-18 volunteers is that you cannot confirm that the applicant does not have something on their criminal record which would make them unsuitable for the position, hence the importance of following all other screening noted above!
We would also recommend that you update your abuse prevention procedures and keep a copy of the new legislation with your procedure manual to document your file, if there was ever to be a lawsuit years or decades from now because the usual 2-year statute of limitations is waived, as is often the case with childhood abuse claims and lawsuits. This will help document your files as to why criminal checks were discontinued for 16 & 17 year-old volunteers in a position of trust.
It is also very important to document your files to include that when that minor turns 18 years of age, they must immediately obtain a Criminal Record Check for your review and files, otherwise their service in a position of trust should cease immediately.
We hope this helps clarify the legal and insurance implications of the Police Record Checks Reform Act.
POLICE RECORD CHECKS REFORM ACT (2018) (PRCA)
The PRCRA legislation passed on December 1, 2015 and will be enacted on November 1, 2018. This legislation introduces legislation to ensure clear, consistent and comprehensive set of standards to govern how police record checks (PRC) are conducted and disclosed in Ontario.
Disclosure of Youth Records
This is one of the most significant changes to record checks in Ontario. Youth records are only permitted to be disclosed in two circumstances:
- To the youth themselves, who is not permitted to further disclose Findings of Guilt and must remove any results from the record check before sharing with agencies [PRCRA 11] or
- To the Government of Canada or the government of a province or a municipality for purposes of employment or the performances of services, with or without remuneration [YCJA 119 (1) (0)]
What does this mean?
Only federal, provincial and municipal government agencies will receive youth records.
The PRCRA regulates how police services release Police Record Checks (PRC) containing youth records to applicants. Up to now, police services have released a PRC containing youth records directly to the applicant who then provide the PRC to the organization or volunteer agency. The federal and provincial government has found this approach to be contrary to the Federal Youth Criminal Justice Act (YCJA).
The only authorized release of a PRC containing youth records will be to a federal, provincial or municipal government. Applicants can gain access to their own record through the Federal Access to Information process but his record is not a PRC and is not allowed to be shared with any other agency.
It is important to note the change for the community – police services will only provide PRC’s to applicants under the age of 18 for government positions. This is because non-government agencies are not authorized to receive any results. To require applicants to apply and pay for a PRC when no results will be released is not in the best interest of applicants, the police service and the community.
What does this mean?
Police services are unable to disclose whether or not there is a youth record.