January 3rd, 2025 | Sterling

The Misuse of Vulnerable Sector Verifications in Canada: What Your Organization Should Know

Does your organization require Vulnerable Sector Verifications (VSV) for some or all of its positions?  When is it appropriate to ask for one?   

What are the benefits of completing this process, and what are the potential risks? 

Each year, police services conduct over 2.3 million VSVs. However, these verifications are often over-recommended, misunderstood, and 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. Note that 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 the vast majority will never be disclosed because there is no legal authority to do so.  The Canadian Human Rights Act explicitly lists record suspensions as a prohibited ground for discrimination. Similar legislation exists in the Northwest Territories, Nunavut, Ontario, and Quebec, all of which restrict discrimination based on record suspensions.  

So why is there a narrow exception in the law permitting the potential disclosure of a small group of conviction types?  How did this exception arise within what is otherwise an area where disclosure is generally prohibited? 

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

1. The police service conducting the VSV check must be satisfied that the check is appropriate. This serves as a challenge function to organizations requesting a VSV, as police services can and do interpret the requirement differently. 
2. The applicant must provide informed consent at the outset of the process, and again if a record is confirmed, before it may be disclosed. 
3. The Minister of Public Safety must weigh several criteria, including the subject’s position, the age of the offence, and its seriousness, when deciding if the conviction should be disclosed. 

This last safeguard is crucial because Canadian laws have since evolved. Some individuals in this holding of records were convicted of actions that are no longer considered crimes. Therefore, the relevance of a conviction in relation to the position sought is a critical consideration. For this reason, the Minister’s decision on whether to disclose a conviction cannot be transferred between positions. To conduct a VSV in accordance with the law’s intent, it must be redone for each position that an applicant pursues. However, organizations sometimes bypass this by transferring the result, potentially undermining the purpose of the third safeguard. 

The third safeguard stage is potentially reached an average of 124 times per year, based on 2.3 million VSVs initiated annually, assuming the Minister agreed to disclose the convictions in every case. This results in a disclosure rate of less than 0.005%. In the highly unlikely event that 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 encountered a situation where a vulnerable sector verification (VSV) resulted in a disclosure at your organization? If so, what decision was ultimately made? 

Many organizations believe they must complete a VSV. However, upon closer examination, it is rare for an organization to have a legislated requirement to conduct a VSV. Often, the decision to conduct a VSV is based on the perception that it meets a higher threshold of due diligence. In reality, VSVs can create detriments that should be carefully considered when deciding whether to include them in the onboarding process. 

Since 2010,  background screening companies have been prevented from facilitating VSV checks.   This restriction is not based on law but on federal policy. Organizations determining a VSV is required must obtain these checks from one or more police jurisdictions where their applicants reside.   

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 regarding other conviction information held nationally or locally in a secure, timely, consistent manner. 

• Unsecured paper results frequently pass through the applicant’s possession. 

• Result products that differ by jurisdiction and cannot be verified as authentic without a 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 reviews conducted through secure online processes provide greater risk mitigation by avoiding all the listed detriments—especially when performed consistently 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. 

 For more information about screening for positions of trust, click here or download our Pardons, Record Suspensions and Screening for Positions of Trust whitepaper. To inquire about setting up a background check program for your organization, contact us. 

This content is offered for informational purposes only. First Advantage is not a law firm, and this content does not, and is not intended to, constitute legal advice. Information in this may not constitute the most up-to-date legal or other information.

Readers of this content should contact their attorney or lawyer to obtain advice concerning any particular legal matter. No reader, or user of this content, should act or refrain from acting on the basis of information in this content without first seeking legal advice from counsel or lawyers in the relevant jurisdiction. Only your individual attorney or legal advisor can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this content does not create an attorney-client relationship between the reader, or user of this presentation and First Advantage.