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December 19th, 2016 | Sterling
The global economy means that sometimes, the best talent comes to organizations from around the world. Sterling Talent Solutions supports its clients with screening services that include criminal record checks available from 196 countries.
We’re fortunate in Canada to have a centralized and efficient means to research prior convictions but this is often not the case elsewhere. Costs of international criminal checks and the turnaround times associated with them vary widely and often may cause organizations to question whether they’re needed, whether a Canadian criminal record check is sufficient, or if a combination of the two might be required. The answer to these questions is: “it depends.”
A thorough read of the Immigration and Refugee Protection Act (IRPA) (and some considered analysis) will help to guide organizations with respect to onboarding talent newly arrived to Canada. Or, if one prefers, allow Sterling Talent Solutions to provide some insights on employee background screening for foreign nationals.
Generally, persons fall into one of three categories:
Let’s start with visas. If your valued employee or prospective employee is in Canada and subject to any form of visa, a thorough background screening process has already been applied. Grounds for refusal to issue a visa include the detection of any criminality that would equal a crime in Canada for which a ten-year prison sentence could be imposed. This would be the equivalent of indictable offences as defined in the Criminal Code of Canada. In addition, any criminal conviction for which the person served a term of imprisonment of six months or more in their home country would also constitute grounds for refusal to issue the visa. Other grounds for refusal include association with known criminal organizations or terrorist groups.
Moreover, the Temporary Resident Biometric program implemented by Citizenship and Immigration Canada, the Canadian Border Services Agency and the Royal Canadian Mounted Police (RCMP) now assures that those who applied for the visas at their country of origin are the same people who ultimately arrive at Canada’s ports of entry.
If the employee or prospective employee is a permanent resident, the process involves the claimant indicating an interest and Citizenship and Immigration inviting the claimant to make an application. Generally, there are classes of individuals who are eligible for this process, including those who can bring economic benefit to Canada and those sponsored by relatives who are Canadian citizens. Provinces can play a role in establishing their own classes of individuals unique to the province’s socioeconomic objectives. The process applied to those seeking permanent residency is similar to those who apply for a visa in terms of the screening that the federal government conducts. Note that persons who start out as refugee claimants can pursue permanent residency.
The priority with refugee claimants is weighted toward humanitarian aspects and not necessarily an individual’s previous criminality. The decisions reached regarding admissibility when screening refugees may be different than for those seeking visas or permanent residency. Unless it can be established that the person poses a threat to national security, previous criminality is likely to be outweighed by a reasonable possibility or probability that the claimant could be subject to persecution, torture, cruel and unusual punishment, or death should they be returned to their country of origin. To balance concerns this may create, the RCMP maintains a Refugee Claimant fingerprint data base where fingerprints are checked regularly against prints taken by police upon arrest/charge or those found at crime scenes. When a match occurs, Citizenship and Immigration Canada officials are alerted and they are responsible for reviewing the Refugee Claimant’s status. When a Refugee Claimant obtains Canadian citizenship, the prints are removed from the holding area and destroyed.
When considering how to manage screening processes involving persons from foreign countries the manner by which the employee or prospective employee has come to Canada is an important aspect to consider.
Anyone who has entered via the visa process or as a Permanent Resident has been subjected to screening processes designed to identify the concerns that would also be of interest to an employer. This is not to say that the person does not have prior criminality, but it has been deemed to be minor in nature and not a disqualifying factor for the visa application process. As such, criminality in the country of origin – If any existed at all – might not be something upon which to base a decision not to hire the person. An organization’s legal council would be the best ones to provide advice on this issue. Of course, it is always wise to carefully weigh human rights considerations since the federal government has already conducted its assessment and has determined that the person posed no risk to come to Canada to work, study or travel.
If the prospective employee is a Permanent Resident, determining whether they were first here as a Refugee Claimant may be worthwhile. If they started out as a Refugee Claimant, it may be prudent to conduct the international criminal record check processes. If it is established that the prospective employee entered the country via a visa or as a Permanent Resident, then emphasis would be better placed on conducting a Canadian Enhanced Police Information Check. Doing so will build upon the review already conducted by federal officials, thereby ensuring that since coming to Canada, the candidate or employee has maintained the good conduct that allowed them to come here in the first place.
On behalf of the team at Sterling Talent Solutions, thank you for your readership in 2016. Best Wishes of the season, a healthy and prosperous New Year and please watch for more great topics to be covered in 2017!
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.