Published August 9, 1999
What can you ask, or be asked, about criminal records? Questions about criminal records are increasingly common in volunteer and employment application forms with sport organizations -- and rightly so. But the way these questions are phrased can mean the difference between revealing important information and a wasted effort. Such questions can also run afoul of human rights legislation.
Asking the Right Question
The coaches association of one of Canada's major sport organizations has put together a comprehensive questionnaire which prospective members must complete when seeking admission to the association. One of the questions is "Have you ever been convicted of a criminal offence?" Unfortunately, this question does not always catch someone who has been found guilty of a criminal offence, including sexual crimes involving minors. The trick is in the wording and the legal meaning of those words. The key words in this example are "convicted" and "found guilty". Because someone has been found guilty of an offence does not necessarily mean they have been convicted of the offence.
Sound odd? Let us explain ... When someone is charged with a criminal offence and these offences are not dropped or dismissed by the court for some reason, the person is then tried for that particular offence. A person can be found "not guilty" of the charges (note that the court does not find someone "innocent") and the matter is at an end and there is no record.
Alternatively, a person can be found guilty of the offence and subject to a penalty. This is where confusion occurs. Depending on the nature and severity of the offence and the circumstances of the individual being charged, the court can impose a range of penalties. More serious offences or repeat offences may result in a fine or jail time. However, lesser offences or the existence of mitigating factors that weigh in favour of the guilty person can result in an "absolute" or "conditional" discharge. In this case, even though the person has been found guilty of the offence (that is, the court is convinced "beyond a reasonable doubt" that the individual committed the offence), there is no "conviction". This circumstance originates in Section 730(3) of the Canadian Criminal Code, which applies across Canada, and which says:
"S. 730(3) Where a court directs under subsection 1 that an offender be discharged [either absolutely or conditionally], the offender shall be deemed not to have been convicted of the offence."
So when that coaches association referred to previously asked if applicants had been "convicted of a criminal offence", what they really meant to ask, and should have asked, is if applicants had been "found guilty of a criminal offence". The fine print can be very important to discovering what you need and want to know about a prospective member, volunteer or employee.
Criminal Records and Human Rights Legislation
How are questions about criminal records affected by human rights legislation? Every province and territory in Canada has a human rights code, and there is also a federal code covering activities in the federal jurisdiction. Several of these codes (but not all) prohibit discrimination in employment on the basis of a person's criminal record. However, those codes which contain this prohibition do make exceptions - where the criminal record relates directly to the nature of the employment, such discrimination may be justifiable.
For example, if a person has a criminal record for theft or fraud, an employer may be justified in not hiring that person into a financial position with the organization, such as a bookkeeper or business manager. Likewise, if a person has a criminal record involving sexual offences, it may be justifiable to preclude such a person from working in a position of trust vis-à-vis children and youth, such as in a teaching or coaching position. This sort of exception is called a BFOR - bona fide occupational requirement.
This is straightforward enough, but there are a few additional points to consider. Firstly, do human rights codes apply to national, provincial/territorial or local sport organizations and clubs? Typically, human rights legislation applies to organizations which provide programs, facilities or accommodation to the general public. It may be argued that where an organization is private (such as a sport organization is) and where an organization controls who may or may not be a member through membership criteria, the legislation does not apply. However, as a practical matter, both provincial and federal human rights authorities have tended to take jurisdiction over national and provincial/territorial associations and it is likely not worthwhile, at least from a financial perspective, to argue with them. On the other hand, many local clubs, depending on their membership restrictions and the services they offer, may not come under the jurisdiction of human rights legislation.
The second point to consider is whether volunteers are included in this prohibition against discrimination in employment on the basis of a criminal record. None of the legislation refers to volunteers, nor does the legislation define employees. However, in other areas of the law the courts are increasingly viewing volunteers as deriving benefits and having rights similar to employees. As a result, organizations should be careful when they remunerate volunteers, at fair market value, in kind if not in wages (for example, by subsidizing travel, accommodation, clothing, training or certification costs), lest they are unknowingly creating an employee relationship which could arguably be governed by these human rights provisions.
Pardons - proposed changes to the law
In March 1999 changes to the Criminal Records Act were introduced that will make criminal records of pardoned sex offenders available for background checks. Currently, pardoned records will not show up during routine searches of CPIC (Canadian Police Information Centre) records by the police. The proposed amendment will ensure that the criminal records of pardoned sex offenders seeking positions of trust in relation to vulnerable persons are available for screening purposes. This clearly will include those seeking coaching positions involving minors.
What is a pardon? Under section 4.1(1) and (2) of the Criminal Records Act, the National Parole Board has the authority to order that the record of a person convicted of a criminal offence be sealed. The person must have completed his or her sentence, and must demonstrate that over the previous 3 or 5 years (depending on the nature of the conviction) that they have conducted themselves properly. A pardon does not erase the fact that the person was convicted of an offence and a pardon will cease to have effect if that person is later convicted of an indictable offence.
It should be noted that conditional and absolute discharges are not subject to pardons because, as discussed above, there has been no conviction.
Originally published: Coaches Report (1999) Vol. 6(1)