What You Don’t Know Won’t Hurt You

When Walmart, Target, and the ultra-conservative Koch brothers stand shoulder-to-shoulder on an employment issue, you could be forgiven for thinking that a workplace apocalypse is brewing. This trifecta is more likely to be found campaigning against union certifications or decrying a minimum wage hike than singing hymns on a picket line with the likes of ColorOfChange.Org, The Center for American Progress, and the American Civil Liberties Union. And yet the lion doth lay down with the lamb.

Several weeks ago Koch Industries added its ample voice to the chorus of “ban the box” promoters. The “box” being “banned” in this initiative refers to the tick box on most employment applications that requires disclosure of past criminal convictions. Although ‘ban the box’ does not end the practice of criminal background checks, it postpones that question until much later in the hiring process allowing employers to learn considerably more about their prospective employees before automatically screening out those with a criminal record. Once an employer has reviewed a résumé, conducted an interview, and checked references, when it then comes to light that the candidate was convicted of possession of cocaine seven years ago, that might not prove fatal to his or her ability to work as a warehouse sorter, cashier, or store manager. A criminal past is just one facet of an infinitely complex human being. To be sure, there are those whose criminality dominates their character and no one is going to be urging banks to hire people convicted of fraud or schools to fill their classrooms with child pornographers. An increasing number of American employers are recognizing that blanket policies excluding those with criminal records isn’t just an affront to the notion of effective rehabilitation; it’s downright bad for business. Massive companies like Walmart and Target have an insatiable need for a growing and regularly refreshed supply of lightly skilled employees. This need is stymied by blunt-instrument policies that exclude the nearly one third of adult Americans (over 70 million people) with a criminal record.

Sadly, while America enjoys a rare consensus on the need to reform the use of criminal background checks, Canada is moving in the opposite direction. A decade of tough-on-crime policies coupled with the mass computerization of historical documents is dramatically growing the class of Canadians saddled by relatively minor criminal records hanging about their necks like the proverbial albatross. These records create a stigmatizing taint that crushes employment opportunities and slams the door shut on immigration and travel.

If it were only convicted criminals who were suffering, at least a heartless dogmatic conservative could justify the policies: you do the crime, you do the time…and suffer the consequences. But, the Canadian criminal industrial complex has sprouted new heads like a hydra, snapping its jaws not just at the convicted criminals but at those who had charges dismissed or withdrawn and even those whose only ‘crime’ was needing the assistance of our country’s woefully inadequate mental health system. The Toronto Star has been at the vanguard of this issue exposing the stories of people whose lives have been ruined by the callous disclosure of mental health encounters, surveillance notes, and withdrawn charges. The problem is enormous and growing with 420,000 people in 2005 (according to StatsCan) having notations about them in the RCMP’s Canadian Police Information Centre (CPIC) database. 2500 of these people were recorded for the ‘crime’ of “attempt suicide” while an additional 2200 were singled out for “mental instability”. I don’t begrudge the important policing function inherent in such a fulsome database, but the routine disclosure of such intensely personal information as part of an employment or volunteer background check is offensive in the extreme. The disclosure of withdrawn or dismissed criminal charges puts the lie to the centrality of a presumption of innocence in Canadian criminal law.

Ontario’s Privacy Commissioner has called for a legislative fix to stop the practice of non-conviction disclosure. All political parties during the 2014 Provincial election promised to re-examine the issue one way or another yet, with over a year having passed on the majority government of the ruling Liberals, no Bill is on the horizon. The time has come for Canadian governments – both federally and provincially – to learn a lesson from corporate America. If criminal justice is genuinely intended to have a rehabilitative effect, there must be legislation to ensure that once you’ve ‘done the time’, you are no longer defined ‘by the crime’. All the more so for those who committed no crime at all.

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UPDATE, June 3, 2015

Today the Ontario provincial government announced the Police Record Checks Reform Act. If passed, the new law would significantly curtail the scope of non-conviction information revealed in a traditional criminal background check. It should be noted however that Vulnerable Sector Screens (VSS), a relatively common form of deep-level background check, would continue to unearth the full breadth of non-conviction information. Despite the power of the VSS, this is a significant step forward for Ontarians and makes good on the Liberal government’s election promise.