April 13th, 2016 | Sterling

Rampant Misuse of Vulnerable Sector Verifications in Canada – What Organizations Need to Know

Rampant Misuse of Vulnerable Sector Verifications in Canada

Does your organization require Vulnerable Sector Verifications (VSV) for some or all of its positions?  When is it appropriate to ask for one?  What is gained by completing this process?  What is at risk?

Over 2.3 million VSVs are conducted by police services each year. As a former Director General of the national repository of criminal records, I’ve expressed the view that vulnerable sector verifications are over-prescribed, not properly understood, and widely misapplied. The Criminal Records Act is the basis for the VSV process so let’s start by understanding its purpose and intent:

 “An Act to provide for the suspension of the records of persons who have been convicted of offences and have subsequently rehabilitated themselves.”

Record suspensions are granted by the Parole Board of Canada when it determines that the applicant has demonstrated good conduct and is deemed to have rehabilitated themselves. Record suspensions must not be disclosed to anyone without the approval of the Minister of Public Safety.  Since 1970, nearly 500,000 Canadians have received a record suspension of which over 95% have maintained good standing.

The types of convictions vary and almost all will never be disclosed because there is no legal authority to do so.  In fact, the Canadian Human Rights Act lists record suspensions as one of the prohibited grounds for discrimination.  Similar legislation with effect exists in the Northwest Territories, Nunavut, Ontario and Quebec and restricts discrimination based on record suspensions.   So why is there this narrow exception in the law that permits the potential disclosure of a small group of conviction types?  How did that exception come to be in what is otherwise a “no-go zone”?

Since the National Parole Board (as it was then) had granted pardons to some 14,000 individuals for sexually-based offences since 1970, a process to allow for possible disclosure of specific convictions was enacted to support a case by case review.   In 2000, the Criminal Records Act was amended to allow this extraordinary measure provided three safeguards are met:

  • The police service running the VSV check must be satisfied that the check is appropriate – a challenge function to organizations requesting a VSV (police services can, and do, interpret the requirement differently)
  • The applicant must  provide informed consent at the outset of the process and once again should a record be confirmed – and before it may be disclosed
  • The Minister of Public Safety must weigh several criteria – including the subject position, the age of the offence, and the seriousness when deciding if the conviction should be disclosed

This last safeguard is important because the laws in Canada have evolved.  There are people in this holding of records who were convicted of crimes that are no longer crimes. Clearly then, the relevance of a conviction in terms of the position sought is the critical consideration. It is for this reason that the Minister’s decision whether to disclose or not disclose is not to be transferred between positions.  To do a VSV in conformity with what the law intends, it has to be re-done for every position that an applicant pursues.  Still, organizations “risk” this out by transferring the result potentially defeating the purpose of the third safeguard.

That third safeguard stage is potentially reached 124 times (avg.) per year based on 2.3 million vulnerable sector verifications initiated and this assumes the Minister agreed to disclose the convictions in every case.  This is a disclosure rate of less than 0.005%.  In the highly unlikely event the hiring organization finds itself presented with conviction information, it must now adjudicate very carefully from both privacy and human rights perspectives.

So ask yourself:  have you ever seen one of these checks result in a disclosure at your organization and if so, what decision was ultimately made?

I’m often told by organizations that they must complete a VSV.  Upon further examination, it is rare indeed that an organization has a legislated requirement to conduct a VSV.  So really, it mostly boils down to positions taken based on the perception that conducting a VSV meets a higher threshold of due diligence.  In fact, VSVs create detriments that should be considered when deciding whether to include them in the onboarding process. 

Since 2010, the background screening companies have been prevented from facilitating VSV checks.  This restriction is not based on law but on federal policy.  Organizations that determine a VSV is required must obtain these checks from one or more police jurisdictions where their applicants live.  Let’s examine some of the implications for an organization’s onboarding process when a Vulnerable Sector Verification is included.  Here are a few:

  • Inability to receive results with regard to other conviction information held nationally or locally in a secure, timely, consistent manner
  • Unsecure paper results often transiting possession of the applicant
  • Result products that differ by jurisdiction and cannot be verified as authentic without follow up with the police service
  • Inability to seamlessly integrate other services that organizations require (i.e. credit history, references, education verification, etc)
  • Negative applicant experience (time, expense, inconvenience) adversely affecting onboarding operations and service delivery
  • High incidence of fingerprinting for males over the age of 30 resulting in the outright loss of suitable applicants

National and local police information review via secure online processes offer greater risk mitigation by avoiding all the detriments I’ve listed – particularly when conducted in a consistent manner by an expert third party.

Organizations compete for the same applicants.  Service delivery to clients depends on the ability to attract and efficiently onboard talent.  When it comes to hiring or placement, the greatest risk faced by every organization –including those that serve vulnerable populations – is inefficient, unsecure screening processes and deficient operational policies.  Both are things that organizations can more fully control once they understand what a VSV check provides compared to what it detracts.

Next month, I will discuss Vulnerable Sector Verifications for the under 30 demographic.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.