Author: Jana M. Linner (with assistance from Matthew Barnes*)
It’s an employer’s nightmare: an employee you hired—who, unbeknownst to you, has a history of committing fraud, preying on vulnerable people, or just generally has little restraint when it comes to breaking the law—has predictably returned to their old ways and stolen personal information or finances from a client or staff member, potentially exposing your business to significant liability. Given this all too real possibility, it is unsurprising that many employers are considering whether the use of police record checks should become part of their standard employee screening process.
Any risk-averse employer ought to be concerned with the potential criminal past of their employees—especially when that employee will have access to sensitive personal information or will work with vulnerable persons. Depending on the nature of the company’s business and the requirements of the position offered, these checks can be a valuable part of an employer’s due diligence when hiring. Therefore, it is vital that organizations and employers be aware of what information will and will not be disclosed in a standard criminal record check. They also need to be conscious of how using certain information disclosed in a criminal background check to make a hiring decision can potentially run afoul of human rights legislation.
Recently, there has been a call for legislation standardizing how police departments conduct criminal record checks as well as limiting the disclosure of certain “non-conviction” information.
The Uniform Law Conference of Canada has suggested draft uniform legislation be prepared to standardize the types of criminal record checks provided in Canada and limit the information provided. This draft uniform legislation is to be based on the Ontario legislation, which came into force on November 1, 2018.
Ontario’s Police Records Check Reform Act, 2015 will apply to employers hoping to determine the suitability of a prospective employee based on a criminal background check. The Act divides police record checks into three categories: criminal record check, criminal record and judicial matters check, and a vulnerable sector check.
Pursuant to this new legislation, in Ontario, the following information will no longer be made available in a criminal record check:
- Any summary conviction that occurred more than five years prior to the record request;
- Any offence where the individual has been found guilty and received an absolute discharge that occurred more than 1 year prior to the record request;
- Any offence where the individual received a conditional discharge that occurred more than 3 years prior to the record request;
- A basic criminal record check will not disclose any offence for which there is an outstanding charge or warrant to arrest the individual;
- No court order made under the Mental Health Act or court order in relation to a withdrawn charge;
- A basic criminal record check, as well as a criminal record and judicial matters check, will not reveal any charge against an individual that resulted in a findings of not criminally responsible on account of mental disorder;
- Any information relating to any charge that was dismissed, withdrawn, stayed, or resulted in a stay of proceedings or acquittal, unless a vulnerable sector record check is requested and the criteria for exceptional disclosure are met.
Currently, Saskatchewan has no similar legislation and each individual police department determines what information to release to the applicant.
For an employer in Saskatchewan, the adoption of legislation similar to the Ontario Police Record Checks Reform Act could drastically limit the amount and extent of information they are currently receiving in a criminal record check.
Unless an employer is aware of these potential changes, they may over-rely on these checks and assume they sufficiently allow them to manage risk and protect their clients and staff.
In some jurisdictions outside of Saskatchewan, the treatment of past criminal convictions under human rights legislation is also significantly different. Under the Ontario Human Rights Code, for example, “record of offences” is listed as a prohibited ground of employment discrimination. As well, under the British Columbia Human Rights Code, a person may not be refused employment on the basis of a criminal conviction that is unrelated to the employment of that person. The following factors are to be considered when determining whether a person’s conviction is related to their prospective employment:
- Does the behavior for which the charge was laid, if repeated, pose any threat to the employer’s ability to carry on its business safely and efficiently?
- What were the circumstances of the charge and the particulars of the offense involved; e.g., how old was the individual when the events in question occurred; were there any extenuating circumstances?
- How much time has elapsed between the charge and the employment decision? What has the individual done during that period of time? Has he shown any tendencies to repeat the kind of behavior for which he was charged? Has he shown a firm retention to rehabilitate himself?
Saskatchewan’s Code has no equivalent requirement. However, this does not necessarily mean Saskatchewan employers are permitted to discriminate on the basis of a criminal record. Under the Saskatchewan Human Rights Code, prohibited ground includes “disability,” which includes, for example, any “mental disorder.” If a criminal record check were to disclose to an employer any information relating to the mental health of a prospective employee—such as a finding of unfitness to stand trial, or a finding of not criminally responsible on account of mental disorder—an employer would have to be careful to consider its potential human rights obligations in the circumstances.
Because of this risk, employers should consider refraining from asking prospective employees for a criminal record check unless the nature of the company’s business or the requirements of the position offered make it reasonably necessary. If a criminal record check is utilized, at a minimum, employers should be prepared to justify why a criminal record check is a reasonable requirement of the position before requesting it.
In summary, best practices for employers when it comes to criminal record requests include:
- Criminal record checks should only be requested if it is a reasonable requirement of the job;
- Although the need for a criminal record check should be identified in the job posting, the request should not be made of a prospective employee until the organization has decided to offer the position and the prospective employee should be informed the job offer is conditional on the outcome of a criminal record check;
- Organizations that do require criminal record checks should develop clear, detailed, written guidelines. These guidelines should be public and available to all applicants.
Overall, criminal record checks can play an important part of the due diligence process when hiring a new employee. However, employers should not rely solely on a criminal record check and should, at a minimum, fully understand the potential limitations and pitfalls when they are part of the process.
*Matthew Barnes is currently clerking with the Saskatchewan Court of Appeal.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
This article also appeared in Bar Notes (Winter 2018 issue), a publication of the Canadian Bar Association – Saskatchewan.