Criminal Records Redux: The New Posting Requirements In The Regulated Health Professions Act

Previously, in What You Need to Know about Police Record Checks,1 we examined the new framework under the Police Record Checks Reform Act, 20152 for conducting and obtaining a police record check and highlighted some of the information that would be (and would not be) disclosed in a report from the police for the various types of checks that are available. So now, with that background, let's talk a little bit more about criminal records.

On May 1, 2018, a new regulation3 under the Regulated Health Professions Act, 19914 came into force that expanded the information that regulated health colleges in Ontario are required to post on their registers about members of their colleges. The requirements now include details relating to any outstanding criminal charges against a member and findings of guilt under either the Criminal Code or the Controlled Drugs and Substances Act. The new requirements, which have now been in place for almost a year, arose from significant amendments to the RHPA and the Health Professions Procedural Code ("Code")5 under Bill 87 (then referred to as the Protecting Patients Act) that were directed at, among other things, reinforcing a zero tolerance regime for sexual abuse by healthcare practitioners and improving transparency on how health regulatory colleges execute their public interest mandate. During the legislative debates on Bill 87 in 2017, the then Ontario Minister of Health, Eric Hoskins, described the rationale for expanding the disclosure requirements on the register as follows:

We propose to increase the transparency of health regulatory colleges' activities. If our legislation is passed, we would expand the minimum requirements for information that colleges must provide on their public registers with respect to their members. Why is this important? Because it means that relevant information about regulated health professionals would be available to the public, because they have the right to know.6 [Emphasis added]

Under the amended provisions of the Code, members of a regulated health profession are now required to inform their regulator when they are the subject of outstanding criminal charges.7 Members are also required to inform the college when they are found guilty of a criminal offence (which was an existing reporting obligation under the Code).8 Within a reasonable amount of time after receiving a member's report (or where information comes to the attention of the college otherwise - for example, through a newspaper article), a college is required to post information about the criminal charge (as well as any conditions of release) and/or the finding of guilt on the register in accordance with the Code and the Regulation.9 Specifically, under the Regulation, the college is required to post both a summary of the finding of guilt and a summary of the sentence.10

While, at first blush, the obligation to post such information on the public register seems relatively straightforward, it can raise (and has raised) complicated issues for colleges to consider and address. For example, although the requirement to post under section 23(2) of the Code is cast in mandatory language (as noted by the statutory buzzword "shall"), the Code is clear that the obligation to post is not a licence to contravene a publication ban ordered by the court.11 Consequently, in certain circumstances, a college may need to make inquiries with the Crown prosecutor or the court to confirm whether or not a publication ban is in place (which, generally, is the case with alleged sexual offences or offences involving children). Alternatively, inquiries might be necessary to determine the scope of a publication ban, if unclear (for example, does the publication ban cover the member or another witness?). Once appropriate information is obtained, the college can then make a decision of what information can/cannot be posted on the register in order to comply with the Code and the Regulation.

Similarly, while the posting obligations are mandatory, the registrar has discretion under the Code to refuse to post information in certain circumstances. In order to exercise that discretion, the Code sets out a statutory...