Canada: Pre-Employment Screening: Changes to the Criminal Records Check Process

Employers who factor in a prospective employee's criminal record when deciding whether to hire should know that criminal record searches are now subject to an Interim Policy Statement that is designed to bolster associated privacy controls and is issued by the Royal Canadian Mounted Police (RCMP).

Conducting reference and criminal records checks as a part of pre-employment screening is a critical part of the hiring process, particularly in workplaces where the nature of the workplace, client base or work itself is sensitive.

Prior to November 2009, employers could, as part of their pre-employment screening process, conduct either a basic criminal records check or a vulnerable sector check by submitting a request to an authorized agency, e.g., a local police force or a third-party screening provider. These agencies would then conduct a search of the Canadian Police Information Centre (CPIC), a national database administered by the RCMP.

Employers can still check for criminal records, but you may have to reconsider both your hiring process and the human rights implications associated with hiring decisions that factor in the prospective employee's criminal record.

The RCMP Interim Policy Statement

In November 2009, the RCMP issued a directive to CPIC agencies and third-party service providers, noting that many such entities were not complying with established policies and procedures regarding the use of the CPIC system. For example, many agencies were disseminating the details of convictions, discharges or pardons to employers without the informed consent of the prospective employee, and without confirming identity by means of a fingerprint comparison.

The RCMP followed the directive with an Interim Policy Statement, effective on December 8, 2009. While the Interim Policy Statement contains substantial information relating to criminal record checks, we note the following elements as key for employers in respect of pre-employment screening:

  1. CPIC agencies are not permitted to conduct criminal records checks on behalf of third-party screening service providers that have not entered into a properly authorized agreement with such agencies.
  2. An individual must consent (in an informed manner) prior to having a CPIC check conducted by either a CPIC agency or third-party screening service provider.
  3. Criminal records checks will include a qualified statement with respect to its result:

    1. in the case of a negative result, that the search "did not identify any records for a person with the name(s) and date of birth of the applicant"; or
    2. in the case of a positive result, that the search "could not be completed."

    In either case, positive identification that a criminal record may or may not exist, as well as the details of any such record, can only be confirmed once the individual subject's identity is confirmed via fingerprint comparison.
  4. Fingerprints are required for positive identification before criminal records are released. Accordingly, third-party screening providers, and other organizations (including prospective employers), will no longer receive confirmation of the existence of a criminal record and/or details relating to the nature of a criminal record, without fingerprint verification.
  5. The RCMP's current fingerprint verification process can take up to 120 days or more, depending on whether the fingerprint is filed on paper or electronically.

Human Rights Implications of Criminal Records Checks

Employers should note that the definition of "criminal record" varies from province to province, as do its implications.

For example, in Ontario, an employer may discriminate on the basis of a criminal offence for which a pardon has not been granted or, if granted, has been revoked, but an employer may not discriminate on the basis of a criminal offence for which a pardon has been granted and has not been revoked, or in respect of a provincial offence. In British Columbia, an employer may not refuse to employ, continue to employ or discriminate against an employee because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

It is important for employers to consult the provincial (or federal) human rights legislation applicable to their business in order to understand their obligations.

Generally, however, in order to be legally entitled to discriminate on the basis of an employee or prospective employee's criminal record, a clear criminal record must be a bona fide occupational requirement (BFOR) and meet a three-part test:

  1. there must be a rational connection between the BFOR and the performance of the job;
  2. the BFOR must have been established with an honest and good faith belief that it is necessary to fulfil a legitimate work-related purpose; and
  3. the BFOR must be reasonably necessary to meet that purpose (i.e., it is impossible to accommodate the employee without imposing undue hardship upon the employer).

Accordingly, in order to determine whether it has grounds to deny employment on the basis of a criminal record check, an employer must have sufficient, specific information with respect to whether any such record exists, what the nature of the offences contained on that record are, whether they have been pardoned, and how such a record might impact the employee's ability to perform the job in question.

Given the restrictions imposed by the RCMP's Interim Policy Statement, it will be increasingly difficult for employers to get sufficient information regarding a prospective employee's criminal record in order to make a timely and lawful hiring decision.

Tips for Employers

  • Take appropriate steps to confirm the existence of a criminal conviction, and if one exists, whether it was pardoned. Then, assess the details of that conviction before making any determination as to the suitability of a prospective employee.
  • Ensure that any third-party screening service providers used for background checks are party to authorized agreements with CPIC agencies.
  • Discuss with your third-party screening service provider how they intend to modify their practices in order to comply with the RCMP's Interim Policy Statement and how that might impact your hiring practices.
  • Where a CPIC check result states that a search "could not be completed," ask the prospective employee directly about the report, whether they have a criminal record, and the nature of that record.
  • Instruct the prospective employee to verify their response by attending at their local police headquarters and having the police run a national criminal records check, and then submitting the report to the appropriate contact person responsible for hiring decisions.
  • If criminal record checks are a critical part of your hiring process, consider building in additional time to the hiring cycle to allow for fingerprint verification, or requiring that all candidates provide confirmation of a clear criminal record as part of the job application process.
  • Ensure that the individual responsible for hiring is trained and familiar with both the CPIC process and the RCMP's Interim Policy Statement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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