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22.03.2015 : News

Criminal Record Checks in Canada

Background

Background Check companies have been offering National Criminal record checks for approximately 15 years. In the beginning, police services were performing these searches based on a signed authorization provided by a candidate, accompanied by government-issued identification. The results provided would indicate a clear (no record) or a not clear (there may be a record) response. This was in-line with the policies and directives of the Government of Canada and was referred to as a Name Based criminal record search.
Over time the response provided by the police services changed to where they would provide details of any criminal convictions including; where the offence occurred, type of offence, conviction date and sentence imposed. The results were strictly based on a match of the person’s name and date of birth. Over time some background check companies migrated away from the stringent rules imposed by the Royal Canadian Mounted Police (RCMP) which resulted in the RCMP clamping down on the way criminal record checks are performed in 2010.

What is CPIC?

The Canadian Police Information Centre or “CPIC” is a national database administered by the RCMP. The database is used mainly by police services to store information and records regarding police activities and more importantly, criminal offences. Direct CPIC access is restricted to law enforcement agencies and other government departments and agencies that are authorized by the policies contained in the “CPIC Reference Manual.”

What is searched during a criminal record search (Name based search)?

During a Name Based criminal record check searches are completed by a comparison of information provided (name and DOB) against the Criminal Names Index (a subset of data within CPIC). The Criminal Names Index – is a list of all criminal convictions for which fingerprints are on file. Fingerprinting is done at the time of arrest – and is only done for criminal matters that are what are termed indictable offences or hybrid offences.

Under Canadian criminal law there are three types of offences,
1. Summary conviction offences
2. Indictable offences
3. Hybrid offences

1. Summary conviction offences

Summary conviction offences encompass the most minor offences in the Criminal Code. Examples are “communicate for the purpose of obtaining the sexual services of a prostitute”, “cause disturbance” and “harassing telephone calls.” Unless a different penalty is specified, summary conviction offences are punishable by a fine of up to $2,000, six months’ jail or both.
You cannot be fingerprinted for a summary conviction only offence, therefore these offences would not show on a CPIC search. Also if you are convicted of a summary conviction offence as an adult, you are eligible for a “Record Suspension” (formally called a “Pardon”) five years from the time you complete your sentence (e.g., payment of fine or restitution, completion of probation).

2. Indictable offences

An indictable offence is more serious than a summary conviction offence. Conviction of an indictable offence exposes you to greater penalties. If you are prosecuted by indictment, you are entitled to trial by jury for most offences. You do not have the right to trial by jury if you are tried by indictment for offences such as Drive Disqualified (i.e., driving while prohibited as a result of a conviction for impaired driving), Theft Under $5,000, Fraud Under $5,000 or Mischief Under $5,000. Following conviction of an indictable offence, you must wait ten years before “Record Suppression” eligibility.

3. Hybrid offences

Most offences can be prosecuted either by summary conviction or indictment. The Crown chooses or elects the mode of prosecution. Such offences are referred to as “hybrid” (or “Crown option” or “dual procedure”). Hybrid offences include impaired driving, assault and theft under $5,000. Hybrid offences are considered indictable until the Crown makes its election to proceed with Summary conviction. The decision on how to proceed can be affected by a number of things including, criminal history of the accused, how busy the courts are, workload and or availability of evidence etc.
As you can see – some offences are strictly Summary conviction offences, some are strictly Indictable offences – but the vast majority of offences are Hybrid – but the distinction only matters for procedural matters in court, when fingerprinting will be done and finally, what will show up on a background check check.

The events of 2010

The RCMP was prompted in 2010 to complete an audit of the police services who were providing information from the CPIC database for background check purposes. The audit caused the Royal Canadian Mounted Police to re-enforce its policies and regulations on CPIC information being released to third-party companies.
Based on this decision the RCMP changed how background check companies perform National Criminal Record searches and what information will be released.

Current state:

The current state of the National Criminal Records search is as follows:

– A third party company cannot perform vulnerable sector searches. A Vulnerable sector search is a searched authorized under the criminal records act and includes a search of Pardoned sexual offences (please note – “Record Suspensions” are not available for offences of a sexual nature involving children, however Pardon’s given under the old legislation still apply). This search is authorized under the act when the person being searched will be working in a position of trust over a “vulnerable” person. These types of searches are seen in fields such as Nursing, Child Care and Volunteer fields.

– A signed and witnessed consent form clearly indicating that a criminal record check is being completed must accompany all searches for a National Criminal Record search. The witness must view 2 pieces of Government-issued ID and compare the information from the ID to the forms and signature of the applicant. Clear copies of the ID must accompany the consent form. The identification must be from a pre-stipulated list of acceptable identification standards (available on request).

– The following wording must be used in a report produced.

A clear – no record will indicate the following:

Based solely on the name(s) and date of birth provided and the criminal record information declared by the applicant, a search of the RCMP National Repository of Criminal Records did not identify any records with the name(s) and date of birth of the applicant. Positive identification that a criminal record does or does not exist at the RCMP National Repository of Criminal Records can only be confirmed by fingerprint comparison. Delays do exist between a conviction being rendered in court, and the details being accessible on the RCMP National Repository of Criminal Records. Not all offences are reported to the RCMP National Repository of Criminal Records.

An unclear – or where a record may exist must indicate the following:

Based solely on the name(s) and date of birth provided and the criminal record information declared by the applicant, a search of the RCMP National Repository of Criminal Records could not be completed. Positive identification that a criminal record does or does not exist at the RCMP National Repository of Criminal Records can only be confirmed by fingerprint comparison. Delays do exist between a conviction being rendered in court, and the details being accessible on the RCMP National Repository of Criminal Records. Not all offences are reported to the RCMP National Repository of Criminal Records.

Self-Declaration

Should a candidate self declare a criminal record; they may complete a “Self-Declaration” form. The police will compare the data provided against their database and determine whether the declaration is complete (meaning there are no other criminal records other than what was provided and that the declaration is accurate) or incomplete (meaning the form is incorrect or not a complete listing of the candidate’s criminal record).

Enhanced Criminal Search

The enhanced criminal record search is an add-on service to our regular criminal record search. This search is done after the regular name based criminal record search and consists of a search of the following databases: Police Information Portal (PIP), Firearms Interest Police (FIP) and the Niche RMS system.

These databases are what are termed “Local Indices” and make up the local police data files for each individual police service. Should there be any negative information in these databases ( outstanding criminal charges, prohibitions, probations etc.) the search results will be returned as “Not Clear”. This result would suggest that additional investigation of an individual through Fingerprint processing is recommended to ensure that there is no criminal record information of concern.

This search is useful in a number of situations, most particularly when an advanced criminal record search via Fingerprinting may take too long. This search can be used to qualify all those who are clear of police involvement or when a higher degree of security is needed for a specific position.

Fingerprint

When a criminal record search is completed by a police service, they compare the name and date of birth against the CPIC database. Should there be no matches then the results come back “Clear”; however if there is a match the records come back “Not Clear”. This is due to the fact that the RCMP cannot positively state that the record found is a match to the individual searched without the comparison of fingerprints.

Why are fingerprints necessary to get copies of their criminal records?

The current governmental directive on the release of criminal record information by the RCMP indicates that criminal records can only be released after the person’s identity has been confirmed by fingerprints. The Privacy Act and its regulations require federal government agencies to confirm the identification of people who request that their personal information be disclosed. All criminal records in the RCMP central repository are supported by fingerprints. Using fingerprint comparison ensures that when the RCMP releases information on an individual, the information is directly related to the candidate.

Should a candidate need to go through the fingerprint process there are two options. They can handle the process themselves or a third-party company can manage the process.

The process:

A Mintz Fingerprint coordinator will contact the candidate who has been identified as requiring a need to have their fingerprints processed. Should Electronic Fingerprints be available in the area the subject resides they will be directed to this location and processed by the company (either Mintz Global Screening or another accredited fingerprint agency). If an electronic fingerprint agency is not available, they will be directed to a paper-based agency i.e. a local police service or a Civil Fingerprinting agency to have fingerprints taken on a form C-216C. For candidates outside of Canada the RCMP will accept fingerprint forms that contain the following.

– Rolled and flat impressions of all ten fingers taken with black ink
– Full name, date of birth and sex of the applicant
– The name and address of the police agency
– The signature of the official taking the fingerprints

The candidate will return the original forms and fingerprints to the Mintz Fingerprint coordinator who will submit to the RCMP for processing. The results will be returned to Mintz Global Screening (after processing by the RCMP) who will in turn return the results to the client.

The current processing time by the RCMP for the processing of a criminal records search once a search is completed is in excess of 120 days for matched records and 7 days for “Clear” confirmation.

Provincial Court Records:

A Provincial court record search is a search of the criminal court filings within a specific province. The information being searched is considered to be in the “public domain” and therefore exempt from privacy legislation. The details obtained from a provincial search generally include all details of an office (date, location, conviction status and sentence). The search is completed by contacting (either electronically, via telephone or in person) the court in a particular province and having a “name” search completed. Once a “hit” is determined you would then proceed to have that record pulled and the details obtained. The search generally takes between 3-15 days depending on the province. The cost can vary from court to court.

Although, both the Fingerprinting process and the Provincial Criminal Records have their “pros and cons” from a best practice standpoint Mintz recommends the fingerprinting process. The Fingerprinting process is all inclusive and a complete search of all Hybrid and Indictable offences – which will provide you with the information you need to make an informed decision. While we do recommend the fingerprint process – we also have the capability of and are the largest provider of Provincial Criminal Records in Canada.

Mintz has itself become an accredited Fingerprinting Agency and processes electronic fingerprints at our Montreal and Toronto locations.

By Daniel Fallows, Executive Director

 

 

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