In the December 4, 2014 Toronto Star there are two articles on the subject of police record checks. (Links to Toronto Star articles at the end of this article) At issue is whether police should disclose information, pursuant to a request for a background check, about a person who became known to police as a result of some activity the person undertook in the past or is currently undertaking, even though to date they have been not convicted of a crime.
So far, the discussion seems to be somewhat one-sided. The discussion seems to lean in the direction that unless there has been a conviction by the Courts, there is no situation when information in police records that has not led to a conviction, should be provided to an organization requesting a background check.
Before government rushes to a decision on this matter, they should explore the other side of the issue. Restricting police services to providing employers and other organizations, including government employers, only with records of conviction may result in high-risk situations for the employer. Government must consider how police should handle situations where a person is a suspect or connected in some way with another individual or groups known to be involved in criminal activity. How many employers, charitable organizations, nursing homes etc. would want to be lulled into hiring someone by a report of “no convictions”, when the police know the individual has a problem background that is relevant to the employment situation.
Additionally, today many criminal investigations are huge undertakings that often take several years to complete. While no police service is going to inform an employer seeking a background check that they currently have the employer’s favourite job candidate under criminal investigation, they could find a discreet way to discourage the employer from hiring the individual if there is a significant risk to the employer.
Rather than use legislation to restrict police services and employers from considering any police record information other than convictions, it may be preferable to require employers to have a confidential process staffed with appropriately trained people in the areas of speciality necessary to manage the whole issue of background checks. The training could include the necessary aspects of Human Resources, law, privacy, Human Rights, security and the operational needs of the position. This person could also perform the evaluation necessary to determine whether a specific position requires a background check in the first place. An employer may not be comfortable employing someone who has had problems with police in a position that involves the representing the company publicly but may be comfortable employing the person in a position that is entirely internal. For example, a person who has been recently investigated for domestic assault but not charged may not be an acceptable choice for a sales position but may be acceptable for a warehouse position.
The reality is that if the government rushes into legislating on this matter, they are going to have to make exceptions to the law. No one, including the government itself, would want to hire someone connected to a terrorist organization, a biker gang or other criminal organization even if they have no convictions on their police record. (See the Ontario Court Decision below on Background checks) So why set up a legislated process that over time will accumulate exceptions that will erode its intended purpose.
What employers, employees and prospective volunteers need is a confidential process managed by competently trained staff that will be fair to people who have had contact with the police for whatever reason, but also is safe, secure and fair for the clients, patients and other employees of any employer.
Not addressed in this discussion is the issue of dispute resolution or a right of appeal for an employer’s decision to not engage an applicant or prospective volunteer due to a decision related to their police record. Human Rights legislation is available where the Act covers discrimination based on a criminal record. An even more complex problem is whether there should be a right to appeal a decision of a police service to record and retain information about a person other than the details of a conviction. That issue will involve discussing the sharing of information among police services both within and outside Canada.
Follow this link to the Download section of the website to obtain a copy of the decision: