Screening of coaches, whether paid or volunteer, is now an everyday occurrence. In fact, the sport organization that does not implement some form of screening probably runs a risk of failing to meet the standard of care now required by law. Increasingly, the courts are holding organizations responsible for the wrongful actions of employees and volunteers whom they place in positions of trust and authority vis-à-vis children and other vulnerable persons; in other words, they are holding these organizations accountable for the conditions under which harm occurs, and over which they have control.
Screening can take many shapes and forms, and it does not, and should not, stop once a coach, or other employee or volunteer, is engaged by the organization. Screening is a constant process of observation, evaluation, and review. In this column we look at one small component of screening procedures-the police check-and some of the issues it raises.
Not all screening policies set out the organization’s position and procedures in a clear and concise manner. It is important for the coach to know the full scope of an organization’s screening process. What information is being solicited and from what sources? How will the information be dealt with once obtained? Who will have access to it? How will it be stored and for how long? If the organization’s policy isn’t clear about such confidentiality issues, the coach undergoing screening should seek clarification.
Not every employee or volunteer in a sport organization or club will be subject to police checks, but coaches should expect such scrutiny. Typically, police checks are reserved for those who will be in direct contact with athletes and who are in positions of trust and authority over athletes. That basically describes the position of the coach-and all coaches should expect to be subject to police checks at one time or another.
There is no such thing as a typical police check. As Lorraine Street points out in an excellent resource on screening published by the Canadian Association of Volunteer Bureaux and Centres (Ottawa, 1996), the term “police check” describes a process of collecting information which will vary from one police department to another. The information collected can vary as can the depth and scope of the information search. Similarly, the extent of information the police might be willing to disclose and to whom will vary. In some instances, the information will only be supplied directly to the coach who is being scrutinized; in others the information will be supplied to the organization requesting the police check.
The basic database used by police when doing a background check is CPIC (Canadian Police Information Centre). CPIC is a national data bank run by the RCMP on behalf of all police agencies across Canada. A search through this database, combined with inquiries through other local and regional databases, can provide information on any criminal record of an adult as well as records of young offenders; probation and similar judicial orders; charges pending under provincial statutes; records of civil proceedings which may involve child abuse; admissions of abuse where charges have not been laid; pardoned convictions; absolute and conditional discharge records; suspect data (if someone has been a suspect in a crime, but neither charged nor convicted); and information about the person as a complainant, victim, or witness to an incident.
The information that is potentially available through a police check is extensive. Clearly, issues of confidentiality are hugely important to the police, to the organization receiving information, and to the person subject to the police check.
Protection of basic rights – a balancing act
Under Canadian law, a person is innocent until proven guilty. The Canadian Charter of Rights and Freedoms guarantees to a person charged with an offense the right to a hearing before a fair and impartial tribunal. Releasing information based on suspicion or releasing it before a person is afforded these rights may represent a breach of an individual’s fundamental human rights. It is also possible that releasing confidential information could result in an allegation of defamation, where defamation refers to the public disclosure of information or allegations that tend to injure a person’s reputation.
It is clear that both the police and the sport organization are put in tenuous positions of balancing the responsibility to protect an individual’s right to privacy with the equally serious responsibility of ensuring the safety of those to whom they owe a duty of care.
A number of provincial/territorial jurisdictions, as well as the federal jurisdiction, contain provisions in their human rights legislation forbidding discrimination based on prior criminal conviction. In other words, an organization cannot discriminate in its hiring practices on the basis of a person’s prior criminal record.
However, each jurisdiction having such a prohibition also incorporates an exception to the rule. Discrimination may be allowed if the organization can prove a bona fide occupational requirement (BFOR); that is, a good faith, legitimate requirement that an employee not have a criminal record at all or, alternatively, not have a criminal record for certain types of offenses, such as sexual offenses. Proving this exception will depend on the nature of the job, the nature of the organization, and the nature and timing of the criminal conviction. Interestingly, it has not yet been established whether this rule, and its exception, applies to volunteers.
In their bylaws and policies, some organizations have incorporated the strict wording of the relevant legislation without allowing for the BFOR exception. This is a policy issue for the organization to deal with, but it offers another example of why it is important that coaches be familiar with the policies of the sport organization or club that with they are associated.
We started out by saying screening processes have become a part of life in the sport community. Some screening procedures are minimal; however, it is clear that a great deal of information can be unearthed through a police check. Coaches should be aware of the sort of information organizations are seeking, but more importantly, they should be satisfied that the organization has put in place adequate safeguards to protect the confidentiality of such information.
Originally published: Coaches Report (1998) Vol. 5(2)