Backcheck 2.0 Verifications
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April 14th, 2022 | Sterling
Conducting background checks on new hires is a routine practice for many organizations. Companies want to know that the employees they bring onboard are who they say they are and have the credentials and experience they claim. They also want to make safe, smart hiring decisions that protect the organization and its clients. Nowhere are background checks more relevant than amongst organizations serving vulnerable populations. What those checks consist of is worthy of closer examination.
Whether filling paid or volunteer roles, pre-screening candidates is a critical step in protecting individuals who could be at greater risk of being harmed by someone in a position of authority or trust due to age, disability, or illness. During a recent webinar, now available on demand, we answered some of the most frequently asked questions (FAQs) about screening for positions of trust — also known as a vulnerable sector search in Canada. Take a closer look at some of them now.
When screening for positions of trust, organizations may choose to undertake a three-part check for individuals who work with children, the elderly, or other vulnerable persons. These checks include a criminal record check, a local police information check, and a Vulnerable Sector Query (VSQ). The Vulnerable Sector Query is a process defined in the Criminal Records Act – a federal statute. There is no requirement prescribed by the Act that organizations must conduct a Vulnerable Sector Query. To the contrary, it is an offence under the Act to conduct one if criteria to do so, as set out in the Act, are not met. Provinces and Territories may enact legislation or regulation requiring regulated entities to conduct a Vulnerable Sector Screening, however any such requirements cannot be inconsistent with the criteria prescribed in the Criminal Records Act as it pertains to the Vulnerable Sector Query..
The first two checks can be facilitated by traditional background screening services, such as those provided by Sterling Backcheck. The third check — a search for sexual ‘Schedule 1’ offences subject to a record suspension or pardon — can only be conducted by the police service of jurisdiction where the applicant lives. Not only can this requirement dramatically slow down the screening process, create process unevenness and friction, and an unsecure paper product susceptible to tampering, the disclosure rate is negligible — less than 0.0019%. As the age of pardon recipients (persons born before 1994) continues to advance, record suspension recipients will increasingly comprise a greater portion of applicants. So, what does this demarcation between pardon and record suspension recipients represent moving forward? The following four FAQs examine this shift and its implications.
Many types of convictions are potentially sequestered (sealed) by the ordering of a record suspension or awarding of pardon, including violent offences, drug or driving convictions, fraud, and theft. In fact, over 500,000 pardons and record suspensions have been obtained by Canadians since 1970. Less than three percent are for offences listed in Schedule 1 of the Criminal Records Act and it is only these convictions that may potentially be disclosed as the end step of a VSQ.
When the Criminal Records Act (CRA) was revised to make individuals with Schedule 1 convictions ineligible, the immediate effect was the age of the youngest person in the pardoned sex offender data base remained static for six years. Repeated Access To Information requests confirmed this fact. In 2020, however, the Federal Court determined that the March 2012 amendments to the CRA cannot be applied retrospectively to individuals who committed Schedule 1 offences before that date. To do otherwise, the Court reasoned, would be to apply new limits, restrictions, or punishments in relation to offences that were committed by individuals in the context of the law as it was at the time. This would be a breach of the Canadian Charter of Rights and Freedoms.
As a result, Schedule 1 convictions for offences committed before March 13th, 2012 are now processed under the law as it was at the time (pardons) and offences committed after that date are processed in the context of the amended law (record suspensions). In the case of the latter, Schedule 1 convictions are ineligible unless exception criteria are met. These include that there was no violence, intimidation, or coercion committed, attempted or threatened; the offender was not in a position of trust or authority; and the age difference between offender and victim was not more than five years.
In the case of record suspensions, Schedule 1 convictions are ineligible unless the exception criteria noted above are met. Ministerial reviews must also consider the same criteria when deciding whether a conviction will be disclosed. When the criteria outlined at 4.3 of the Criminal Records Act are deemed to be met, making a record suspension possible, such convictions are no more relevant than any other sequestered convictions not included in Schedule 1; convictions for violence, drugs, weapons, thefts, and frauds — all of which are never discovered or disclosed by a VSQ.
Since 2012 and up to 2020 inclusive, 32 record suspensions were ordered where the victim was a child (under 18). In each case, the offender proved to the Parole Board of Canada that they were not in a position of trust; no violence, intimidation, or coercion was committed, attempted or threatened; and they were within five years of age of the victim. By way of illustration, consider the case of a boyfriend posting intimate pictures of his seventeen-year-old girlfriend on the internet. This is, by definition, distributing child pornography which is a Schedule 1 listed offence. In such a case, however, the record suspension applicant could ostensibly prove to the Parole Board of Canada that they meet the exception criteria.
Record suspensions and pardons are distinct processes with different implications associated to them. To receive a pardon for a Schedule 1 conviction, the offence must be committed before March 13th, 2012 and this limitation has a direct correlation to the age of the individual. Recognizing this, background screeners can assist organizations to implement age-appropriate approaches to conducting criminal background checks pertaining to positions of trust. There are other aspects associated to screening for positions of trust that warrant close examination – such as whether to repeat VSQs for existing employees and volunteers. Make sure you work with a background screening partner that understands all these aspects and can assist organizations to implement informed practices.
Watch the entire webinar at your convenience for a deeper dive into the most frequently asked questions — and the answers — about hiring for positions of trust.
Sterling is not a law firm. 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.
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.