Checks and Balances

Preventing Mental Health Discrimination According to Health Canada, approximately 20 per cent of Canadians will experience mental illness in their lifetime. Unfortunately, persons with mental illness often face stigmatization, stereotypical attitudes and discrimination at work, at home, in schools or even when they access services.

Under the Ontario Human Rights Code (the “Code”), everyone has the right to equal treatment without discrimination based on 15 grounds, including disability, in areas such as employment, housing and services.

“Disability” covers a broad range and degree of conditions, some visible, such as physical disabilities, and some invisible, such as mental illness. The Code’s definition also includes situations in which a person is perceived or “seen” to have a disability but does not actually have one. Even when job applicants have a mental health disability, employers must objectively assess their ability to do the job and not rely on perceptions and stereotypes that put up invisible barriers to job opportunities. In fact, a recent Ontario Human Rights Tribunal decision in the case of Lane v. ADGA Group Consultants Inc. of Ottawa upheld the right of persons with a mental health disability to be appropriately accommodated in the workplace under Ontario’s Human Rights Code.

The Commission is concerned that certain requirements, policies and practices relating to non-criminal police record checks can have a discriminatory impact on persons with mental health-related disabilities seeking employment.

For instance, mental illness may result in non-criminal contact with the police. Under the Mental Health Act, police can apprehend people to take them to a hospital for examination when it appears that their mental disorder may result in serious bodily harm to themselves or others. In many cases, the individual or a family member may have contacted the police for help.

Such non-criminal contacts are also recorded in police databases and may be kept for a number of years. In some cases, they may never be removed. While contact with police may have been made under emergency circumstances, the information collected may later be disclosed through a police record check. If revealed, that information can have a lifelong impact when that individual tries to apply for a job, take up volunteer activities, enroll in a course or look for housing.

As providers of services to the public, police organizations are covered by the Code. This includes the full range of their services, including police record checks. For this reason, police need to ensure that their responses to a request for a police record check do not result in discrimination by unnecessarily disclosing information relating to mental health. Checks that go beyond what is reasonably required can stigmatize persons with mental illness, wrongly reinforce a stereotypical link between mental illness and criminality, and further marginalize individuals.

A related concern is the growing tendency of organizations to ask applicants and volunteers to consent to police record checks. Some organizations may legitimately request police background checks, such as when hiring employees or volunteers to work with vulnerable people. However, in many other cases, it may not actually be necessary for the job at hand, and therefore not a reasonable and legitimate requirement.

Police record checks may also have a discriminatory impact on individuals identified by other Code grounds. As the Commission’s work on racial profiling demonstrates, some groups are more likely to have had contact with police. For example, studies indicate that racialized and Aboriginal persons are disproportionately represented in the criminal justice system. If they also experience mental illness, members of these groups may be doubly disadvantaged.

Individuals and organizations need to understand the implications of requesting police record checks and ensure that they only ask when such information is genuinely required. Police services should also gather sufficient information about the reason for the police check, and be aware of their responsibilities under the Code when assessing and disclosing information about non-criminal contacts.

Recognizing a lack of understanding, the Commission held a public consultation in March to get feedback from individuals and organizations on a new draft policy addressing mental health discrimination and police record checks. The consultation will lead to a final, approved Commission policy to provide individuals and organizations with information on:

- mental health-related concerns that arise in the context of police record checks;
- how Ontario’s Human Rights Code applies; and
- responsibilities of all parties involved to ensure that their policies and practices are not discriminatory.

Over the years, the Commission has developed a number of policies that provide direction on how to remove barriers and address a wide range of human rights issues. A new policy on issues facing persons with mental illness related to police record checks adds to that body of work so that “written” rights become “lived” rights.


For more information, please visit www. ohrc.on.ca or the Psychiatric Patient Advocate Office at www.ppao.gov.on.ca.


On June 30th, 2008, Ontario’s human rights system is changing to serve you better. Please visit www.ohrc.on.ca for further information.