New RCMP Commitment to Enforcement of Background Check Policies Squeezing Canadian Employers

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.

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Comments

  1. Interesting post, and I do have a number of people asking me about this and the related CSIS clearances.

    What legal actions can an employer take if either agency unnecessarily prolong these checks?

    Potential hires are often left hanging after already received an employment offer, sometimes having notified their workplace they are already leaving. Employers are stuck with having made an offer and the need for filling a position, but may have to wait months or even years (really) before having the position actually filled.

    I currently know several individuals who are well beyond the 120 day period already, and are still waiting indefinitely.

  2. Thanks for the comment Omar. As far as recourse to those affected goes, I view this as a policy rather than a rights issue, and I’m sure the RCMP would have a lot to say about the “necessity” of the delay. (It actually has a project to speed up the validation process, but the available details are sparse and rather vague.) A welcome dialogue that appears to have not not yet begun. Dan.

  3. What does it mean when a cpic check comes back positive and a jisnb check comes back unknown

  4. This is the best, most informative article I have seen on this topic. I understand RCMP’s desire to ensure accuracy, but think that this will encourage those performing criminal record searches to use other, less thorough sources at the local level.

  5. Joanne Russell-Haas

    As of August 1st, 2010…has there been any further developments to make this situation more time efficient for employers?

  6. Has there been any furth3r comment or permanent policy published by the working group mentioned in your article?

  7. Thank you for the comments Joanne and Vicky. I don’t know the answer to your questions off the top of my head, but will do some research and do a follow-up post in the next couple of weeks. Dan.

  8. I am a student a did a police reference check and i was ask for a fingerprint, i have done the fingerprint since 3 months ago and i am still waiting for the result. I have never committed any crime since i have been leaving in Canada. My school is starting september 7,2010 and i have still not receive my fingerprint result; i an going to loss a whole semster for no reason

  9. My apologies for not replying to the inquiries earlier, but frankly, there’s not much to report.

    I published this post on January 27th. Just a week earlier, the “Criminal Record Information Policy Working Group” met in Ottawa. Shortly after, CPIC posted this document.

    The bottom line is that the Working Group issued proposals, the RCMP/CPIC committed to evaluating the proposals and the interim directive remains in effect.

    Like much about this issue, the document I’ve linked to is very difficult to understand. The Working Group seems to affirm the use of fingerprint verification for name based criminal record checks. It acknowledges that delays in conducting this type of verification are are causing “challenges,” but does not propose any solutions to speed up the process. The Working Group does propose a third response option that will allow individuals to declare their criminal history which may then be confirmed without fingerprint verification. If adopted, this proposal won’t help those without a criminal history who have tested positive based on a name and date of birth check.

    I hope this helps. It is not legal advice and is just my attempt at interpreting the attached. If anyone else knows more, please comment.

    Dan

  10. Recently I have resigned from one position to take on another (I am a Registered Nurse). All that was outstanding was my criminal and vulnerable person records checks. My vulnerable persons check came back that my \information correlated\ with a person who was convicted and pardoned of a sexual offence. All they said is that it could be the same date of birth and initials (or even partials of each)that are the same. It’s that simple apparently to get mixed up in this mess. They would give me no more information or explanation than this. My new job is now in limbo for obvious reasons and I have quit my old job. To get any new position would require the same checks. I am the primary wage earner and therefor am very concerened about (now) near future finances, mortgage etc. What would be my first steps to rectify this other than waiting for my package that is to be sent to my home and waiting the 2-6 monthe period that I was told it would take? Contact lawyer? MLA? Newspapers?

  11. I am all for protecting children but the RCMP is doing
    is uncategorically wrong.

    The only reason they are doing this is to protect the names of
    pardoned sex offenders.

    If your birthday matches the date of a pardoned sex offender you are
    asked to submit fingerprints (at your expense).

    What a completely irrational basis for providing fingerprints.

    What happened to the presumption of innocence? You do not
    treat law abiding citizens like criminals.

    It is time for someone to challenge this RCMP policy in court.
    It is my sincere belief it would be struck down immediately.

  12. I’m more concerned with things like, “miscellaneous “occurrences.” What does this mean exactly? If someone doesn’t like you and they report you for an illegal lane change? What sort of information would show up in a, “miscellaneous occurrence”?