Screening Applicants for Positions of Trust

When the 2012 changes to the Criminal Records Act were introduced that made individuals with Schedule 1 convictions ineligible, these had the immediate effect of freezing the age of the youngest person. For a considerable timeframe (six years), repeated access to information requests confirmed this had not changed.

Eight years later, the Federal Court determined that the March 2012 amendments could not 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.

The result is that individuals who committed their Schedule 1 offences before March 13th, 2012 are now processed under the law as it was at the time (pardons) and individuals who committed their offences after that date are processed in accordance with the amended law (record suspensions).

Our attention has therefore evolved to focus on the difference between the two cohorts: pardons and record suspensions. While age still plays a role in that pardon recipients are an end-dated cohort that continues to get older, age now serves to demarcate the two cohorts and the respective approaches that may be considered to manage them.

The reality is that organizations routinely hire candidates suited to their positions who may have a pardon or record suspension. Over 500,000 pardons and record suspensions have been obtained by Canadians since 1970 ⁽¹⁾. Schedule 1 offences account for less than three percent and it is only these convictions that may potentially be disclosed as the end step of the process initiated by a VSQ. The facts are that 97% of convictions – many for violent offences, drug offences, thefts, frauds, and driving offences – that are potentially subject to a pardon or record suspension, will never be discovered or disclosed by a VSQ or any other process.

^{(1) – Parole Board of Canada website}

Several changes to the CRA and the processes associated to pardons took place between 2010 and 2012. Longer applicant-wait times, increased ineligibility criteria and increased fees to support more thorough applicant investigations by the Parole Board of Canada were introduced. These changes have resulted in two distinct cohorts, with pardon recipients representing greater risk due to the lower standards that are associated with that process: virtually no investigation, shorter wait times, and no ineligibility criteria.

• The person was not in a position of trust or authority over the victim 
• No violence, intimidation, or coercion was threatened attempted or committed by the person toward the victim; and 
• The person was not more than five years older than the victim
  

The changes have meant that under the new record suspension regime, those recipients face a much higher bar than pardon recipients did.

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 met the exception criteria listed at 4(3) of the Act by proving to the Parole Board of Canada that:

• The person was not in a position of trust or authority towards the victim of the offence, and the victim was not in a relationship of dependency with him or her;
• The person did not use, threaten to use or attempt to use violence, intimidation, or coercion in relation to the victim; and
• The person was less than five years older than the victim.

One example would be a boyfriend posting intimate pictures of his 17-year-old girlfriend on the internet. This is, by definition, distributing child pornography which is a Schedule 1 listed offence. In such a case, the record suspension applicant could prove to the Parole Board of Canada that they meet the exception criteria outlined at FAQ 3.

Another example could be a conviction under 173(2) of the Criminal Code of Canada: Exposure.

Schedule 1 convictions are ineligible for a record suspension unless exception criteria described at FAQ 3 are met. When a record suspension applicant can prove that the exception criteria at 4(3) of the Act are met, record suspensions ordered for such convictions are no more relevant from a risk standpoint than any other sequestered convictions not included in Schedule 1.

Pardons discovered by a VSQ can be relevant to positions of trust because they may include violence, intimidation, or coercion while in a position of trust or authority where the victim was in a position of dependency. This is not the case with recipients of record suspensions.

We know that to receive a pardon for a Schedule 1 conviction, the offence must have been committed before March 13th, 2012. This fact establishes that the youngest (potential) pardon recipient was 28 years of age effective March 13th, 2022. With each passing year, this age gate will extend by another year, with only record suspension recipients being on the younger side of that demarcation. This demarcation will endure and can be used by organizations to implement approaches to screening applicants based on their cohort.

The fact is that once a “no record” determination is established in relation to a specific position, there is no possibility of a sequestered conviction ever occurring without that conviction first being discoverable, for several years, through a criminal record check. Regular criminal record/judicial matters checks are sufficient to discover any emerging concerns. Further VSQs have no value.

There are no public-facing sex offender registries in Canada. The National Sex Offender Registry (NSOR) is a police-only law enforcement tool created by the passage of the Sex Offender Information Registration Act (SOIRA). The Registry is operated as a National Police Service maintained by the RCMP and is for law enforcement purposes only ⁽²⁾ . Any provider representing solutions for Canada that purport to include searches of sex offender registries is misinforming consumers.

^{(2) – https://www.rcmp-grc.gc.ca/en/sex-offender-management}

There are provisions in the Youth Criminal Justice Act to raise a young offender to adult court and convict them as an adult. The instances of this occurring are extremely rare and involve heinous offences which are well-reported in the public record. Raising a young person to adult court is left to the discretion of the Attorney General of the jurisdiction. Data for these outcomes is non-existent, supporting that the probability is infinitesimally small ⁽³⁾.

^{(3) – At Sterling Backcheck, we offer a U18 Canadian Criminal Record Check service that discovers adult convictions associated to applicants under the age of 18. Last year, we processed over 3,000 checks using the U18 service with no positive results for any type of criminal conviction.}