Criminal checks hit roadblocks

Enforcement of RCMP policy leads to delays, ambiguity
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 05/04/2010

At the end of 2009, the RCMP announced changes that make it harder for employers and background screening companies to determine if a potential hire has a criminal record.

In its Dissemination of Criminal Record Information, the RCMP detailed the process involved with the Canadian Police Information Centre (CPIC), a computerized information system that provides law enforcement agencies with information on crimes and criminals.

Of particular interest to employers is the fact searches by name and date of birth — commonly used during the hiring process — no longer reveal if an applicant has a criminal record. If such a search reveals a match, the report would come back as incomplete. Confirmation that a criminal record exists for the person requires a fingerprint comparison.

Secondly, there are issues around checks for the vulnerable sector — which involves organizations that work with people at greater risk of being harmed, such as children or the elderly. In addition to criminal background checks, vulnerable sector checks look into pardons for criminal offences of a sexual nature.

Police agencies that access the CPIC database and work with third-party companies are not permitted to perform vulnerable sector checks on behalf of the third party, said the RCMP. And the results must first be released to the applicant by the police, but only with the person’s written consent.

These interim measures came in response to breaches of CPIC policies and related federal legislation, said the RCMP, such as criminal record information being released without confirming identity through a fingerprint comparison.

“They’re holding accountable how they expected the system to be used,” said Tim Hardie, president of background screening firm Hire Performance in Markham, Ont. “They said their policies weren’t being adhered to.”

There are about 4.2 million fingerprints on file and more than 50 per cent have more than one name attached, said Gord Finck, chief superintendent at the RCMP in Ottawa. So John Smith, a job candidate, could find an incorrect criminal record for another John Smith was passed along through a provider to the employer.

“That’s why the ministerial directive says, ‘Until we can determine you are you, we’re not giving out any details of a criminal record,’” said Finck.

An employer is likely to get false positives, which is the privacy concern underlying all of this, said Dan Michaluk, a partner at Hicks Morley in Toronto.

“Based on the number of people who have had criminal convictions, it’s not going to be unlikely that employers face a result that says, ‘We can’t complete the check.’”

The other issue was checks were sometimes done without proper consent or done improperly. While police have the authority to take fingerprints for an indictable offence, some convictions don’t require fingerprints so people can have criminal convictions but not criminal records, said Finck.

The criminal act says checks should also investigate for current charges, probations and other offences both in CPIC and in the jurisdiction where an individual lived, to see if there are any other convictions, he said.

“The Canadian public doesn’t know the difference between criminal convictions and a criminal record, and they don’t know what a real vulnerable sector check would include that would give them sufficient information to make an informed decision,” said Finck. “It takes time to do a proper check.”

According to the RCMP, if a criminal record is encountered during the verification process, the turnaround time could exceed 120 days. However, that’s a worst case scenario, said Finck, and if someone does it electronically and doesn’t have a criminal record, a response comes back within 72 hours.

“The whole process, because they just don’t have the infrastructure, is bogged down,” said Hardie. “It might take anywhere from four or five weeks to months for that information and it could be irrelevant information. It really does create poor hiring opportunities for companies and for candidates — it’s just not right.”

Between 10 per cent and 12 per cent of Canadians have some kind of a record but it may not be relevant to the hiring position, said Hardie.

“Unfortunately, the only thing we know now is, ‘You have a record.’ We just don’t know whether it’s murder or jaywalking.’”

The question is whether employers can afford to wait for confirmation, said Michaluk.

This is also a risk-management issue, a potential health and safety issue and a contractual issue, he said.

“You’re always going to want to do a good risk assessment, especially given the duties that are being reinforced under Bill 168 now,” said Michaluk, referring to the new Ontario workplace violence and harassment law.

There could even be human rights compliance issues in jurisdictions where there is protection for records of offences.

“If that’s the case, you technically have an obligation to consider the risks of hiring someone on a case-by-case basis,” he said.

Employers will have to properly lay out the situation and, should a check come back positive, ensure the person can be terminated on well-defined terms.

The conditions of hire should also be clear, said Michaluk, because an organization may be contractually bound to complete the background screening process. So, for example, if a check comes back incomplete and the employer decides to walk away from a potential hire, the job candidate could demand the screening process be completed as promised.

Upcoming changes

In January, the RCMP said changes were in the works that might improve the situation. One recommendation was commercial providers could ask an individual to declare his criminal history and, if there was a match, the police would ask him to submit fingerprints.

So if a job applicant has a criminal record, she can reveal what’s on the record. If her statement is true, the results will be disclosed right away and if not fingerprints will be needed.

“Basically what they’re looking at is a confirmation of declaration,” said Hardie.

Another recommendation was for a “virtual front counter” so third-party companies can communicate (through software) with certain CPIC agencies to enable individuals, companies and vulnerable sector organizations to initiate a name-based check of criminal records and the pardoned sex offenders data bank.

In reality, if CPIC went back to the third-party company and requested the person come in for a vulnerable sector check, “that’s tantamount to really telling the third party company that this guy possibly has a pardon,” said Finck.

And thirdly, fingerprints would not be needed if local police release information about criminal convictions within their local records management system, the CPIC databases and other police services, directly to the individual concerned with the consent of the police service that contributed the record in question.

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