Confirming Adult Convictions During a Criminal Record Check

Posted Tuesday, April 10th, 2018 by Chuck Walker, Sterling Talent Solutions

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La confirmation des condamnations prononcées par un tribunal pour adultes dans le cadre de la vérification de casier judiciaire

Organizations ask us why, in some instances, Sterling Talent Solutions Canadian Criminal Records Check process may require reissuance of a Not Clear result’s disclosure status from “accurate” to “inaccurate” or vice versa.

In this article, I will explain the process that occurs when “Not Clear” results include confirmation about whether an adult conviction as declared is accurate. The goal is to help organizations appreciate that while a reissuance of status can occur and why these changes are sometimes necessary, the overall process is a valuable enhancement compared to receiving a “Not Clear” result with no additional insight.

Third Response Option

Canadian name-based criminal record checks include a process whereby the applicant may disclose their adult criminal convictions. Background screening companies may then employ processes through their Police Partner Agencies where such disclosures are determined to be either declared accurately or declared inaccurately (due to incorrectness or omission). This process was introduced into federal policy in 2010 and is referred to by the RCMP in policy as “Confirmation of a Criminal Record.”

Before the third response option was adopted into federal policy, organizations had two results that they could lawfully receive in relation to a name-based criminal record check: clear or Not Clear. Disclosing the actual details of an applicant’s criminal record remains impermissible without the submission of fingerprints. In my former role as the Director General of the Canadian Police Information Centre, I sought and obtained legal analysis establishing that a “third response option” involving applicant declaration/police confirmation was permissible and could be employed with the applicant’s informed consent.

Adding the third response option to federal policy was based on a real need expressed by organizations to equip them with additional knowledge which they could apply to hiring decisions. It was recognized and accepted that a Not Clear result without detailing information was not necessarily helpful because, in many situations, the nature of the conviction in question might not preclude hiring the applicant for the subject position. In fact, the ability for organizations to receive applicant-declared confirmation of convictions better positioned them to adjudicate hiring decisions in a manner more compliant with human rights requirements. Since its inception in 2010, the third response option has allowed organizations to be aware of convictions a suitable candidate may have and to then consider that information appropriately in the context of the subject position – a valuable enhancement to the former process.

Disclosure of Adult Convictions During a Background Check Process

Sterling’s process, stemming from the federal policy, allows an applicant to disclose those adult convictions they believe they have. Sterling then relies on our police partners to apply their interpretation to that disclosure when selecting the response option that they return to us as a result. Background screening companies are not privy to the system responses that are on the CPIC screens of their police partners. Given this necessary partition, Sterling collaborates with our police partners in the application of standard operating procedures used to guide how applicant disclosures are interpreted. The process relies on the premise that our police partners will apply those guidelines as evenly as possible when selecting the response option that they generate.

Establishing that an applicant is “Not Clear” by virtue of existing adult conviction information constitutes a first step (when it applies). The next step is establishing whether the applicant’s declaration is accurate. It can be inconvenient for organizations when there is vacillation on the accuracy of an applicant’s disclosure – either due to the applicant not getting it right or due to matters of discretion or interpretation that accompany PPA review of CPIC entries. This acknowledged, organizations still derive immense benefits because of this process which represents a marked improvement over a “Not Clear” response with no additional insight. It should be remembered that, in the absence of the third response option, the alternative is to fingerprint all applicants at the outset since there is no allowance to obtain specific information about criminal convictions otherwise.

Discrepancies of CPIC Results

When one employs a process that is based on a layperson applicant being required to accurately describe the nature of a Criminal Code of Canada conviction, followed by a police service’s review of CPIC information that is restricted to their eyes only, the need for clarification will occur from time to time. Sterling performs rechecks on these types of results as a quality assurance measure because it can occur that Police Partners interpret differently. Such discrepancies are thoroughly analyzed and resolved and may occasionally require Sterling, out of responsibility, to update our clients.

To use but one example of an interpretation that may be applied: driving/alcohol offences. Accurate disclosures are reviewed by our Police Partner Agencies (PPA) using the approach that impaired driving, driving over 80 mgs, care or control while impaired/over80mgs, fail to provide breath sample are all similar type offences that may be used by an applicant interchangeably to describe Driving Under the Influence (DUI) or Drive While Intoxicated (DWI) in layperson’s language. If, however, the impaired driving conviction included causing bodily harm or death – and that information was omitted by the applicant in his/her disclosure, such omission would require that a Not Clear – Inaccurate Disclosure result be returned. This would result in a further investigation to resolve the matter.

Declaration/Confirmation is subject to the twin variables of applicant behavior and PPA interpretation. To offset these, Sterling works collaboratively with our PPAs to ensure our procedures are refined as appropriate. Given the required separation between Sterling’s processes and those of our Police Partner Agencies, it would be unrealistic, even disingenuous, to extend to clients an ironclad guarantee that there will not be instances where we must revisit a Not Clear result involving declared adult conviction information. Notwithstanding these occasional requirements to update a Not Clear result status, the third response option provides much more than it detracts. It allows organizations to derive the added benefit of receiving confirmation of adult convictions that applicants declare so that they can better achieve compliant human rights-based hiring decisions.

For more information about the background check options offered by Sterling Talent Solutions, contact us via our website or speak with us at 866-881-2011.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.