Concern over false positives mean checks could take as long as 4 months
It has become a fairly common practice for employers to conduct criminal record checks as part of standard pre-employment screening procedures, particularly in industries where security is a concern.
In Canada, access to criminal records is managed through the Canadian Police Information Centre (CPIC), which is a national database maintained by the RCMP. Typically, employers may access these records either through requests to a local police force or through a third-party screening provider. These requests are usually by way of a basic criminal record check or a vulnerable sector check.
In November 2009, the RCMP issued a directive to CPIC and third-party service providers raising concerns that many of these agencies were not complying with established policies and federal legislation regarding access to CPIC records. In particular, the RCMP was concerned criminal record information was being disseminated without confirming identity by means of a fingerprint comparison.
Tighter verification and consent procedures
As a result of these concerns, the RCMP introduced significant interim policy changes intended to address key issues, including: proper identity verification and informed consent of individuals undergoing name-based criminal record verifications; online criminal record checks; standard query responses to criminal record name checks; and the disclosure of criminal record information. These changes came into force on Dec. 8, 2009. The most significant changes for employers that routinely rely on criminal record checks are outlined below.
First, an individual must provide informed consent prior to undergoing name-based criminal record verification. As part of this process, an informed consent form must be completed and signed by the applicant. These forms must now include the following minimum criteria:
•Information regarding the identification of the applicant, including surname, given name(s), sex, date of birth, place of birth, current address and previous addresses, if any, within last five years.
•Details regarding the reason for the consent, including the purpose of the criminal record verification, the description of position and the name of person or organization requiring the criminal record verification.
•Confirmation the applicant clearly understands and signs to the purpose and intent of the name-based criminal record verification.
•The consent must also clearly indicate a search of the National Criminal Records repository maintained by the RCMP will be conducted based on the name(s) and date of birth provided by the applicant.
Second, the interim policy changes also dictate the format of results of criminal record searches. These changes are designed primarily to reduce the risk of criminal records being disseminated without first confirming identity by way of fingerprint records.
Search without fingerprints is not conclusive
When the result of the criminal records check is negative, the screener must indicate a search of the National Criminal Records repository maintained by the RCMP did not identify any records related to the name and date of birth of the applicant. However, positive identification of whether a criminal record does or does not exist at the repository can only be confirmed by a fingerprint comparison and not all offences are reported to the repository. In addition, the screener’s report should indicate a local indices check may or may not reveal criminal record convictions that have not been reported to the National Criminal Records repository.
If a name-based search identifies a possible criminal record match for the name and date of birth provided for the applicant, the screener must indicate a search of the National Criminal Records repository could not be completed and the applicant must submit fingerprints through an authorized police service or accredited private fingerprinting company.
Positive identification of a criminal record at the repository can only be confirmed by fingerprint comparison and, as in the response to a negative result, screeners must indicate that not all offences are reported to the National Criminal Records repository and a local indices check may reveal criminal record convictions that have not been reported to the repository. This requirement is in response to concerns over criminal records being found that belong to someone other than the applicant who has the same name, resulting in false positives and personal information of other people being disseminated to employers.
Fingerprint verification requires up to four months to process
Fingerprint verification is now required for positive identification before criminal records are released. This verification can take up to 120 days to process, depending on whether the fingerprints are stored electronically or on paper.
While these new policy changes still allow for employers to conduct criminal record checks, the process has become slower and in some respects more onerous, particularly when one considers that in the case of a positive result, the waiting period for confirmation that a criminal record exists and identification of the specific offences for which the applicant was convicted can be up to four months.
Employers should review policies
As a result, employers who rely on criminal record checks in making hiring decisions should review their practices and policies to ensure they take into account these new requirements and, in particular, the potential delays that might result from fingerprint verification of potential criminal records.
In addition, employers should also be mindful as to whether a criminal record check is in fact required, given the nature of the position for which the employee is being hired. Unnecessary checks may create an administrative bottleneck, potentially resulting in a violation of provincial or federal privacy laws which generally restrict the unnecessary collection of personal employee information.
