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July 27th, 2017 | Sterling
Among Sterling Talent Solutions’ many clients, there are those that routinely hire or place young people within their organizations. The question often arises: can these applicants be screened for a criminal record? The short answer is “Yes.”
This blog post explains the difference between young persons who may have youth convictions and young persons (U18) who may have an adult conviction(s) and how that distinction determines what organizations are allowed to know.
In Canada, the Youth Criminal Justice Act (YCJA) is the legislation that governs how young persons are treated in the Canadian Criminal Justice System. A Young Person is defined by the Act as anyone who has attained the age of 12 years but is not yet 18 years of age. The intent of the YCJA is to afford Young Persons additional privacy rights, the best opportunity to be rehabilitated and to be diverted from future conflict with the criminal justice system. Emphasis is placed on avoiding the stigma of criminalization and the resulting marginalization that can occur from affecting young people so early in their lives. In keeping with the spirit of the Act, circumstances, whereby youth conviction information can be disclosed, are restricted to specific purposes that depend on how a Youth Court has disposed of the charges.
Most of the purposes for disclosure that are outlined in the law are intended to ensure monitoring of the young person by different components of the criminal justice system. In terms of background screening for employment, the disclosure of youth records is narrowly restricted to decisions about positions within the federal/provincial/municipal government.
The YCJA was designed to recognize that the greater public interest must also be served. There may be instances where sentences allowed under the Act are insufficient for the crime committed or because the young person has displayed a pattern of criminal behavior that must be weighed against any prospect for rehabilitation and balanced against the public interest.
There are provisions in the YCJA whereby the prosecution may make application to have a young person receive an adult sentence if convicted.
The young person must be at least 14 years of age, and the provinces and territories may prescribe different age thresholds that extend that age up to 16 years. The charge(s) a young person is facing must be ones for which an adult would receive a minimum sentence of 2 years of imprisonment.
If the crime is a serious violent offence, the prosecution must consider whether the young person should be sentenced as an adult and shall advise the Youth Court of the intention to seek adult sentencing before the young person enters a plea to the charges (before the trial).
Both situations can give rise to circumstances where a young person can actually have an adult conviction. Adult convictions, as we know, are subject to disclosure for employment background screening purposes.
The spirit and intent of the Youth Criminal Justice Act reflect Canadian values of fairness and rehabilitation. The law intends to balance those important values with the public interest. When the prosecution makes the decision to request that a young person be sentenced as an adult, it is made either because the crime is serious and violent, or because not making such a request could bring the administration of justice into disrepute or undermine the public’s confidence in the system. The inference can, therefore, be drawn that the circumstances associated with adult convictions involving a young person are extraordinary and worthy of note in a hiring or placement decision.
Information on the frequency of Young Persons receiving adult sentences (convictions) is not readily available from either police or court survey data as collected by Statistics Canada. Anecdotally speaking, instances of adult sentencing are rare.
Organizations should weigh the risks they are attempting to manage, consider other useful processes – such as references – as a key component of their screening protocols for young people and apply a U18 CCRC process as may be appropriate.
As can be seen, it is possible for an applicant under the age of 18 to have an adult conviction. While these are rare, where they exist, they normally represent convictions for serious offences – typically of a violent nature. Uncovering such conviction(s), or as will almost inevitably be the case, establishing they do not exist, is important to certain Sterling clients.
As with all criminal record checks that we offer, applicants are guided by instructions which detail the types of information that they are not to disclose. Youth convictions form part of this list. In addition to the guidelines that applicants must follow, the U18 process always requires the informed consent of the applicant’s parent or legal guardian. The requirement for additional consent is automatically triggered based on the applicant’s age. Once the applicant has completed their informed consent and has also obtained the consent of their parent or legal guardian, Sterling Talent Solutions’ Canadian criminal record check process, as used for adult applicants, is applied.
Speak with representatives at Sterling about UI8 criminal record checks. We will provide you with the information you require to help you decide whether this service is right for your organization. For more information about important components of creating a background screening policy, download our Background Screening Policy Checklist.
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.