The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

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The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.

For full contact information and a brief bio, please see David's profile.

Please note that I am only able to provide legal advice to clients. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser cannot be considered to be solicitor-client privileged.

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The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.

Friday, April 09, 2010

RCMP changes rules for criminal records checks 

Today's post at
RCMP changes rules for criminal records checks

Late last year, the RCMP changed its policy for access to criminal records information via the Canadian Police Information Centre (CPIC). Reputable companies, up until that point, had been able to obtain police records clearances through local police departments. These clearances were conditional upon the background checking company obtaining signed consent from the individual and making those consent forms available for spot audits. Provided the proper consent was obtained, background checking companies had been able to provide same-day results if the name, address and date of birth provided did not result in any “hits” in CPIC. In most cases, where there may be derogatory information, the individual would have to appear for fingerprinting so that his or her identity could be confirmed. This practice meant that those who had clear records could go on to the next stage of the process for their job application, volunteering application or whatever.

For records where a pardon has been granted for certain sexual offences, a notation is made in CPIC’s databases. It used to be that the police would provide, with the individual’s written consent, confirmation that no such notation exists provided that the person was being screened for working or volunteering with vulnerable populations.

These checks were facilitated by professional background screening companies, in cooperation with law enforcement, who would often be able to provide an “all clear” within the day.

Now, all screening requires fingerprints and about 120 days’ wait. The RCMP is saying that they are simply doing what the Criminal Records Act requires them to do. I don’t buy it. The Act says that the RCMP can disclose the existence of a notation if the person has provided written consent and the check is made for a paid or volunteer position that is one of authority or trust relative to children or vulnerable persons.

According to an article in today’s Globe & Mail, a number of volunteer-staffed organizations have cancelled programs because the 120 day wait cannot be accommodated. What may be worse, some organizations may be foregoing these checks and permitting unscreened people to work closely with vulnerable populations.

This is untenable, in my view. I’m not in favour of widespread criminal records checking where it is not relevant to the position, but these checks are very often relevant for certain employment or volunteer positions. Provided the person has provided clear, informed, unambiguous consent, there is no reason why an “all clear” can’t be given forthwith. I can understand that you would want to avoid the possibility of erroneously saying that a person has a criminal record or a pardoned sexual conviction, so the practice of fingerprinting should continue where there might be a “hit”. But where there is no reason to think a person has a record, that information should be provided right away.

Volunteerism is important. Silly policies should not have the effect of impeding volunteer efforts, nor should they discourage prudent screening that keeps predators away from the vulnerable.

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