From time to time this question arises amongst some of my clients. It appears to be a difficult answer. So I have done the research and I have some answers to share.
The question assumes importance because clients want to know if youth records should be disclosed for a vulnerable sector check. This means when applying to work with a non-profit organization and especially with an organization working with children, for a vulnerable sector including paramedics etc. such an organization requires every applicant to undergo a vulnerable sector check.
Disclosure of the information is sensitive and also important to the applicant because it has job related impacts. The normal presumption is that because it’s a youth record, it's automatically confidential.
Unfortunately this is only partly true. The records are sealed, but specifically for vulnerable sector check, youth records, upon conviction may be disclosed. This is likely to be of surprise to readers but that is the reality and the legislation.
First we have to look at The Police Record Checks Reform Act - I've copied the relevant portion of the table below:
TABLEAUTHORIZED DISCLOSURE
Item | Column 1Type of Information | Column 2Criminal record check | Column 3Criminal record and judicial matters check | Column 4Vulnerable sector check |
1. | Every criminal offence of which the individual has been convicted for which a pardon has not been issued or granted. | Disclose. However, do not disclose summary convictions if the request is made more than five years after the date of the summary conviction. | Disclose. However, do not disclose summary convictions if the request is made more than five years after the date of the summary conviction. | Disclose. However, do not disclose summary convictions if the request is made more than five years after the date of the summary conviction. |
2. | Every finding of guilt under theYouth Criminal Justice Act (Canada) in respect of the individual during the applicable period of access under that Act. | Disclose. | Disclose. | Disclose. |
Next we have to look at what is the meaning of period of access under the Youth Criminal Justice Act. This is found in section 192(2) of that Act.
It says as follows:
(e) if the young person is found guilty of the offence and the youth sentence is an absolute discharge, the period ending one year after the young person is found guilty;
(f) if the young person is found guilty of the offence and the youth sentence is a conditional discharge, the period ending three years after the young person is found guilty;
(g) subject to paragraphs (i) and (j) and subsection (9), if the young person is found guilty of the offence and it is a summary conviction offence, the period ending three years after the youth sentence imposed in respect of the offence has been completed;
(h) subject to paragraphs (i) and (j) and subsection (9), if the young person is found guilty of the offence and it is an indictable offence, the period ending five years after the youth sentence imposed in respect of the offence has been completed;
So, it all depends on the status of the sentencing for the youth. Is it going to be different custody, probation, or jail time. Even if it does jail time of a few years, the advantages that because it is a youth matter there is a time to wait for the disclosure of these records even for a vulnerable sector check. It is not an endless amount of time it is a definite amount of time within a specified number of years from the completion of sentence. So there is light at the end of the tire. Unfortunately, that tunnel may be a bit long.
We at Shankar Law are happy to work with youth clients. We have solid experience and knowledge of doing so. We have physical offices in Owen Sound, Port Elgin and Wiarton but are happy to take on cases from all over Ontario.