December 8th, 2021 | Sterling
Background screening may seem straightforward, but with changing laws and policies, as well as various provincial differences, there are quite a few anomalies that are often overlooked. We collected the most frequently asked questions by our clients, and have compiled the most common and often unknown anomalies to help you navigate the complexities of background screening.
A Criminal Record Check is a search of a criminal conviction for which a pardon or a record suspension has not been granted. The search utilizes the Royal Canadian Mounted Police (RCMP) National Repository of Criminal Records using the Criminal Name Index query of Canadian Police Information Centre (CPIC) system. It is based on the applicant’s name and a date of birth. Federal policy allows for applicants to declare their adult convictions and for Police Partner Agencies (PPA) to confirm whether that declaration is accurate. Sterling Backcheck has exclusive agreements with PPAs to drive standard operating procedures that ensure a consistent process.
When conducting a criminal record search in Canada, all information is accessible through the National Repository’s Identification Data Bank. Therefore, regardless of which province the crime was committed in and whether the offender currently lives there, the conviction will be on record. It’s important to note that these practices are not standard across the globe.
For example, in the United States, a record of a crime for the most part only exists at state level. So if an individual who resides in Nevada commits a crime and then move to California, that crime would go undetected if the criminal background check only included a California record search. While certain state convictions are uploaded to the FBI, enabling a national search of certain State Identification Bureau conviction records, this is a fingerprint-based process and access is not available to the general public or companies performing a background check.
This example highlights how each country has a unique set of rules when it comes to background screening. As remote work becomes more of the norm, global checks are in higher demand. Partnering with a provider that offers expert guidance is critical to the success of a global program.
Before going further, let’s clarify the notion of convictions vs criminal records. A criminal record check is a search of a criminal conviction for which a pardon or a record suspension has not been granted.
Have you ever wondered what criteria police use for fingerprinting? The answer lies in a law that says that the police may, not must, fingerprint individuals either charged with or convicted of an indictable offence. The law states that fingerprints may be taken for indictable offences but cannot be taken for summary conviction offences (misdemeanors). It does, however, get muddier when it comes to hybrid offences. Hybrid offences are those where the Crown makes the election whether to proceed by way of indictment or summarily, and that decision is made typically during the first court appearance. Until the Crown elects the process, the police treat hybrid offences as an indictable offence and may take fingerprints. The Identification of Criminals Act is the authority by which criminal fingerprints find their way into the National repository maintained by the RCMP.
Let’s look at the Youth Criminal Justice Act. When it comes to youth convictions, the police are required to report convictions to the National Repository, unlike police having the choice for adult convictions. However, when it comes to the background screening, youth convictions are off limits. Access to this information is restricted to criminal justice processes, such as law enforcement activities by parole officers. The only exception to this rule is for young people who have a youth conviction and are seeking opportunities for municipal, provincial, or federal government positions. Even then, the YCJA has complex provisions around when a conviction may be disclosed in that narrow context. These provisions are tied to the type of sentence the young person was given.
Let’s now talk about rehabilitation and some of the anomalies associated with the laws around it.
For starters, it’s called a Criminal Records Act ,which can be misleading. This legislation is intended to grant pardons or order record suspension for people who are deemed to have rehabilitated themselves. In Canada, the justice system is set up around providing a path for rehabilitation. Both the Parole Board of Canada and the RCMP have roles in this Act.
The Parole Board of Canada reviews applications for pardons and/or record suspensions. They decide whether an individual should receive a pardon or a record suspension. The RCMP’s role is to manage the record suspension notifications and to sequester these convictions so they are no longer flagged during a criminal record check.
What happens when a person changes their name? Since one of the key components of background screening is based on names, a name change is a crucial thing to identify to ensure accurate results. Name changes are managed at the provincial/territorial level as part of Vital Statistics. Currently, there are only four jurisdictions that require applicants to submit fingerprints to the National Repository as part of the name change process. This means that, unless the RCMP was notified by fingerprint submission, the name variant is not added to the Criminal Name Index. If a person with a criminal record changed their name outside of those four jurisdictions, and no process was set up to discover prior names to consider in a name-based check, this can result in a missed hit. Only a fingerprint-based search will tie the new bio info with the criminal record. This can occur based on a subsequent arrest/charge or any other process involving a fingerprint submission to the RCMP.
Now that we’ve discussed some of the anomalies in background screening, let’s explore some of the solutions to help you manage potential risk.
When reviewing your screening policy, the most important question to ask is: Why is my organization running background checks? From establishing trust and safety in your community spaces, to building strong, authentic cultures, to protecting your brand and reputation, different organizations will have different priorities and answers. For example, the risk tolerance for an employer within the financial industry is typically quite low due to the highly regulated nature of their sector, so these types of organizations tend to take a more comprehensive approach with background checks. In contrast, retail employers who hire seasonally may prefer a more streamlined approach, hoping to balance ensuring organizational safety with prompt hiring to meet the needs of a tight labour market.
The next question to ask is: What types of services do I want to include? While it may be tempting to copy what you think others are doing, understanding why your organization needs background checks helps ensure you choose screening services aligned to your needs. While identity and criminal screening most commonly form the foundation to screening programs, organizations are also often interested in checking references as well as education and credential verification. Another service gaining traction is the Social Media Search, which is growing in importance with the expansion of remote work, allowing organizations to search publicly available social media and web content to proactively identify concerning behaviours like bigotry, sexism, and violence.
Background screening policy can be complex. An experienced provider can help guide you through key questions to consider. When evaluating which background screening providerto partner with, these questions may help:
For example, Sterling Backcheck is a people first company. Our mission is to help establish trust and safety for our clients. We recognize the work we do can impact people’s reputations and livelihoods, and so compliance is woven into everything we do.
Want to discuss your background screening policy? Our team of experts are ready to answer your questions and get you started on a screening program unique to your organization’s needs and requirements.
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.
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