Late last year the Royal Canadian Mounted Police issued a directive to the agencies that facilitate national criminal background checks that has caused significant concern to employers. This lengthy post describes this important development.
Background on CPIC and background checks
The Canadian Police Information Centre or "CPIC" is a national database administered by the Royal Canadian Mounted Police. It contains a range of information useful to law enforcement, including records about hybrid and indictable offences. CPIC is maintained primarily for law enforcement purposes, and is both populated and queried by "CPIC agencies" (local police forces and other government agencies) who are authorized to access the database in accordance with policies contained in a document called the "CPIC Reference Manual."
Though it is maintained primarily for law enforcement purposes, CPIC is also an important source of information for employers who need to screen new hires because it is the only national database of criminal records.
Employers can obtain information about job applicants through a CPIC agency, either by contacting an agency directly or by using a commercial service provider. The most basic kind of CPIC check identifies whether an individual has a record of a conviction or a discharge in the database. A "vulnerable sector" check identifies whether an individual has been granted a pardon for certain specified sexual offences, but is only available to organizations hiring individuals to care for children and vulnerable persons based on restrictions in the Criminal Records Act.
The recent developments are only about the process for conducting CPIC checks. A "local indicies check" or "police check" is something different, and generally refers to a check of police files and occurrence reports within a locale, and not necessarily an entire province. Though confined, such checks can provide a broader range of information than a CPIC check, including information on provincial offences convictions, charges and miscellaneous "occurrences."
The directive and interim policy
Late last November, the RCMP sent one or more directives to all CPIC agencies. It alleged non-compliance with the CPIC Reference Manual and demanded change.
On December 8th, the RCMP issued an interim policy entitled "Dissemination of Criminal Record Information" and a new FAQ explaining aspects of the interim policy. These communications address a number of compliance-related matters, two of which are having a particular impact on employers: (1) the matter of the information that may be provided in response to searches based only on name and date of birth and (2) the matter of commercial service provider involvement in the conduct of vulnerable sector checks.
Response to basic searches highly qualified
The RCMP direction on information provided in response to searches based on name and date of birth only – so called "Criminal Name Index/Criminal Record Synopsis" searches – dictates what agencies can say in response to a request. If, for example, a name and date of birth search does produce a match, the RCMP has directed agencies to respond as follows:
Based solely on the name(s) and date of birth provided, a search of the National Criminal Records repository maintained by the RCMP could not be completed. In order to complete the request, the applicant is required to have fingerprints submitted to the National Criminal Records repository by an authorized police service or accredited private fingerprinting company. Positive identification that a criminal record may or may not exist at the National Criminal Records repository can only be confirmed by fingerprint comparison. Not all offences are reported to the National Criminal Records repository. A local indices check may or may not reveal criminal record convictions that have not been reported to the National Criminal Records repository.
The RCMP says this qualified statement is necessary in order to ensure accurate identification of individuals with criminal records. While understandable, there is currently no expeditious process for verifying a criminal record. The RCMP says its current verification process can take more than 120 days to complete when a criminal record is encountered. Individuals must attend at a local police station or certified fingerprinting agency to start the verification process, but results can be delivered directly to employers.
Vulnerable sector checks must be provided directly
The RCMP direction on vulnerable sector checks specifies that these checks (and checks involving records protected by the Youth Criminal Justice Act) must not be provided through commercial services providers. The FAQ explains the process that police forces must follow in releasing results:
The results can only be first released to the applicant by the police. If a record exists, it must be confirmed by the submission of fingerprints. If the record is confirmed or there is no record and the applicant chooses to divulge the results to the organization, the police agency may only release the information to the organization with the prior written consent by that individual.
The RCMP also has specified that vulnerable sector checks can only be performed for positions inside Canada.
Impact on employers
The RCMP states that its recent directive is consistent with its pre-existing policy, its own authority to deal with CPIC records (as granted by the Minister of Public Safety and Emergency Preparedness) and various statutory constraints. The perception is, however, that the directive will cause a change in the services available to employers. The most significant perceived change relates to the length of time it will now take to receive a verified result.
The 120 time frame for a verified check raises operational concerns for employers. Can we wait to hire a good candidate? Can we bear the risk of hiring a non-verified applicant? Can we bear the risk of employing a non-verified applicant on an interim basis?
There are also legal concerns, particularly for employers who employ persons in jurisdictions that offer human rights code protection for "record of offences." Do we have a duty to accommodate? If so, how does that constrain our ability to fill an opening with another candidate?
Employer reliance on local indicies checks is likely to increase, though conducting multiple local searches of non-standard databases may take time and leave questions about coverage. There are also human rights compliance risks associated with local indicies checks given the scope of information they can reveal.
There is little publicly-available information on the RCMP's direction or on its plans to move beyond the interim policy. The interim policy itself does indicate that a working group comprised of CPIC agencies, public safety partners and, "as may be required," commercial service providers will meet in 2010. The RCMP will ask its working group to "develop, clear, uniform practices for CPIC Agencies that have partnerships with Third Party Companies for conducting name-based criminal record verifications." Look for more information to come.
- CPIC Interim Policy – Dissemination of Criminal Record Information
- CPIC Background Check FAQ
- Chapter I.2 of the CPIC Reference Manual
- Civil Fingerprint Screening Services, RCMP
- Understanding Criminal Records, John Howard Society of Alberta
- Police Background Checks – Balancing Public Safety, Security and Privacy, John Swaigen