[NOTE: An updated post on Criminal Records Checks was published in January 2016]
In many service sectors, some form of police record check is now common. Obtaining police record checks for volunteers is part of an organization’s due diligence and part of their standard of care to ensure that risks within the organization are reasonably managed. We have written on the subject before but there are some new updates and it is time to revisit the issue. For organizations, it is increasingly important to have a good handle on the nature of police record checks – what they are, what they can and cannot do, and what degree of check that you need for your volunteers.
‘Police record check’ is a blanket phrase that can refer to investigating the criminal history of a volunteer. But all police record checks are not created equal. In fact, there are two basic types of police record checks – a CPIC check and a local police record check. The source for each of these checks provides different information and gives you a different ‘product’. Which should you use? Why?
We’ll start by discussing CPIC checks and then move to local police record checks (which are also known as 'local checks’).
CPIC stands for the Canadian Police Information Centre. It is a database of criminal offense information, administered by the RCMP. There are three levels of search that can be done of the CPIC database:
Doing a CPIC search will provide some information on persons charged with, and convicted of, most criminal offences. But there are limitations. First, only convictions for offenses requiring finger-printing are required to be submitted to CPIC. This means that “summary conviction offenses” (which are typically less serious offenses) will only make it into the database if a local police force happens to submit them.
Second, most records are erased from the database after a certain amount of time. Any criminal, except those sentenced to life or an indeterminate sentence, can apply for a pardon after completing their full term of incarceration and after waiting a period of three or five years. Once pardoned, any reference to the person is removed from the CPIC database.
Sexual offenses are slightly different, however. Even if pardoned, persons convicted of a sexual offence are still flagged in the CPIC system and will show up in a check if they apply to work in positions of trust with children or other vulnerable people. (This was the case of ex-hockey coach, Graham James, who applied for and received a pardon in 2007 after he completed a 3½-year prison sentence for sexual offenses. The federal government is currently reviewing the procedures for granting pardons in light of the James case.) That said, even sexual offenders can apply to have their names removed from the sexual offenders’ registry and, in fact, will have their names removed after ten years provided there has been no repeat offense.
The third limitation of the CPIC search is that the rules for keeping, sharing and discarding Young Offender records are much more restrictive than adult records. Young Offenders are generally described as criminal suspects between the age of 12 and 17 years, inclusively. One would have to go to Family Ccourt in order to access a youth record and, once the record reaches the ‘nondisclosure’ date, it becomes illegal for the police, and other bodies, to share the record.
Vulnerable Sector Checks
Searches of the CPIC database can include Vulnerable Sector Checks, which are an integral part of pre-screening practices, although they are not an aspect of screening we hear much about in the sport context. Vulnerable sector screening is typically required for teachers, social workers, and day-care workers, and should be required for coaches of youth as well. This check should be an essential part of the screening process for any position where an individual will be working with “vulnerable" individuals. A vulnerable person is defined in the Criminal Records Act as one who, because of age, a disability or some other circumstance, is in a position of dependence on others, or is at a greater risk than the general population of being harmed by a person in a position of authority or trust (Criminal Records Act, Section 6.3). Youth-centred activities (such as sport) may be seen as a lure for individuals predisposed to pedophile tendencies or habits.
The scope of a Vulnerable Sector Check includes all sex offenders and pardoned sex offenders (whose names remain in CPIC database for at least 10 years). Before releasing information arising from the search, the person upon whom the search is being done must consent to the release of that information, and an organization should be very concerned if this consent is not provided.
Product of the CPIC Checks
There are four basic types of Certificates of Verification that can be produced by a CPIC search: (1) a name-based Criminal Record Verification, (2) a fingerprint-based Criminal Record Verification, (3) a name-based Vulnerable Sector Verification, and (4) fingerprint-based Vulnerable Sector Verification. If either of the name-based searches produces a positive result then it will typically lead to a fingerprint-based search.
Local Police Records Checks
Local Police Records Checks, also known as ‘local indices checks’, involve a review of local police files and occurrence reports in a local geographic area. “Local geographic area” is an important point. What is local? In what local area should the check be done? Police can search an individual’s name to determine if there is any record of an individual within their jurisdiction (i.e., the “local geographic area”). If a person commits an offence outside the jurisdiction, local police do not know about it unless they either do a CPIC search or if they contact another territory where the individual has resided or engaged in criminal activity (which they might find out from a CPIC search). In other words, the check is just that - local.
An organization must have some sense of a person’s roots in a community in order to search the proper local police files, although this search will still not necessarily cover the geographic scope of a person’s (criminal) activities. Nonetheless, there is much information held at a local level that cannot be obtained through CPIC. As mentioned previously, summary conviction offenses are not necessarily contained in CPIC, but would be recorded locally. Other information that may be retained locally includes: pending charges, outstanding warrants for arrest, records not yet posted to CPIC – which can take up to two years, known aliases, mental health alerts, police contact for the past five years (including contact with an accused person, contact with persons subject to alleged criminal activity, or contact with suspected persons in alleged criminal activity – this is important because people may be repeat victims, suspects, witnesses or accused), dismissed, stayed or withdrawn charges, provincial (as opposed to Criminal Code) offenses (which include, for example, driving offenses) and Family Court restraining orders. All of this information might be relevant to the screening for a particular position. (As an aside, as one looks at the array of personal information potentially available, it reinforces the need to have a proper process for the review and, in particular, handling of such very sensitive information.)
It is unlikely all such information would be made available, but the local police are able to take into consideration the needs and situations of the organization in conducting a search in disclosing relevant information.
What Kind of Check – and From Whom?
Some organizations require volunteers to obtain, from a CPIC search, an extensive name-based Criminal Record Verification and a name-based Vulnerable Sector Verification check which, if positive, will lead to fingerprint-based verifications. Even though CPIC searches may appear to be more detailed, a local police check may be more appropriate. Determining what you need, and why, is crucial. An organization might simply need the kind of information that comes from an interview (skills, personal characteristics etc.), from reference checks (responses to stress, anger management, etc.), or from a request for specific documents (a driver’s license abstract). Criminal record checks – of any nature - are just one part of a bigger screening process.
If your organization asks volunteers to submit a ‘police record check’, the volunteer may simply visit a local police station and ask for one. The local police station might utilize the CPIC services in a requested police check or they might not. There is a huge, and increasing, time and workforce commitment to any type of police record check. Not all police forces have the resources to carry them out in a timely way, if at all, and organizations need to be aware of the cost of these checks and any expected delays. For this reason, organizations must be very clear about which positions within the organization require which (if any) type of record check.
Nonetheless, once a police search is requested, organizations need to vigilant in following up on such requests. The person who continues to indicate delays, relaying that the authorities say the search will take more time, need to be flagged. Searches can take time – up to several weeks. The person being searched should not start any duties until the search is complete and returned to the organization - and the results of the search are satisfactory to the organization.
There are third-party companies that will apply for a CPIC check on behalf of an individual and devote the time and energy necessary to ensure a quick check. These companies first appeared in the sport world when police record checks started becoming part of an organization’s due diligence. However, it became quickly apparent to police officials that having people go through a third party company breached the law in terms of both privacy and consent to disclose personal information. There was no way for police officials to properly verify a person’s consent to such personal checks and it seemed that giving the information to third parties under such circumstances breached privacy laws. The use of third party companies to solicit criminal record checks from CPIC was therefore stopped.
Since January 2010, third party companies are now having Post Office workers (presumably as Officers of the Crown) verify the identity of a person who wants to have the third party search CPIC. Through such identification and verification, a person presumably consents to the documentation being used and/or stored in whatever way the sport organization has designated. Whether this new system actually addresses the concerns regarding identity theft and/or misappropriation of information, and whether organizations have actually thought about or dealt with maintenance of information issues (which were not part of shutting down the third party business but are nonetheless a continuing issue) remains to be seen - and should be seriously considered by sport organizations.
This new practice of having Post Office workers as part of the identity validation system may be accepted in order to retrieve a Certificate of Verification, but individuals need to determine their own confidence levels in CPIC searches. Further, individuals have to be confident in an organization’s ability to deal with and, where necessary store, such personal information. Organizations need to heed people’s concerns with the CPIC process but organizations must also, more importantly, develop their own internal processes for dealing with such potentially sensitive screening information.
There is clearly efficiency in the new system being used by third party providers. However, we wonder if the original issues of identity theft have been resolved. Certainly, confidentiality issues continue to occur, and these must be handled by organizations through their own internal policies on soliciting and managing police record checks.
A couple of points need to be emphasized in conclusion. These come from an expert at Corrections Canada. She notes that some individuals are asked for multiple checks and, of course, multiple check certificates, to verify the results of the check. An individual needs a police record check for work, for a volunteer position, and now for a sport organization. Not only is this time consuming and expensive for the individual, but it puts a tremendous strain on the system. Clearly, each organization is absolutely justified in requiring the check. But why must organizations keep the certificates? Why not take a photocopy or scan the certificate and allow the individual to keep the original? Generally speaking, a records check need only be done once every 3 to 5 years. That way, the same official certificate can be used in multiple situations.
Of course, organizations would still be required to determine how it will store the copies of the certificate (whether fax copy or scanned copy) and respect the individual’s rights to privacy and confidentiality – a big issue for sport organizations. The Corrections Canada expert suggests putting in place a simple process whereby a person’s application is vetted and the simple submission of an appropriate certificate (among other documents) is recorded in a systematic way. Courts accept systematic business procedures that can be proven to be consistent, duplicable, and reliable. Organizations can take the same approach by having reliable people implement a consistent process over time.
In conclusion, sport organizations MUST engage in police record checks as a part of their personnel screening procedure. They need to:
Originally published: Centre for Sport and Law Newsletter (2010) Vol. 6(4)