Disclosure of Non-Conviction Records

This online guide draws on the Canadian Civil Liberties Association’s insightful and concerning report Presumption of Guilt? The Disclosure of Non-Conviction Records in Police Background Checks, (Toronto: Canadian Civil Liberties Association, May 2012). We encourage any readers interested in learning more about this topic to consult with this report.

Further sources used in creating this online material are located in our bibliography below.

Page Navigation Guide

Introduction

Background Checks

• What is a background check?
• Who Can request a Police Information Check (PIC)?
• Who is the PIC Provided to?
• Who can Conduct a Criminal Record Check (CRC)?
• When Can I be asked to Provide a Background Check?
• What Disclosure can be Included in these Checks?
• What is a Non-Conviction Record?
• How Long are Non-Conviction Records Kept by the Police?
• What is the Impact of Including Non-Conviction Records?
• How do I find out of if I have a Non-Conviction Record?
• How Can I Prevent the Disclosure of Non-Conviction Records?
• What if the Police Refuse my Request?
• What if there is no Internal Appeal Process?

Legal Framework

• Is there about me that a potential employer may not obtain from the police nor use in making a decision about my suitability for the position?
• What Do I do if I feel I have been unfairly discriminated against in a job application?
• Does Privacy Legislation protect me from Information Disclosed in a non-Conviction record?

Bibliography

An increasing number of Canadian organizations — employers, volunteer managers, educational institutions, licensing bodies and governments —are incorporating police record checks into their hiring and management practices. As this practice increases, it is important to be aware of what information is disclosed during the course of these checks. Albertans should be aware that Police forces are disclosing information that goes beyond records of convictions and formal findings of guilt.

How non-conviction records are collected, retained, and used and perceived by potential employers, volunteer managers and other organizations, end users, and their potential negative impacts, are a significant concern. The disclosure of non-conviction records may lead to someone’s presumption of innocence being undermined, a violation of privacy, and discrimination. Organizations that receive information disclosed on police background checks may not understand the distinctions between different types of information, putting their usefulness into question. A lack of fairness and clarity may result in closed doors and missed opportunities. It also disproportionately targets people with mental health and developmental disabilities since they often come into contact with police.

The police collect, retain, and use a wide variety of information about the individuals whom they come into contact with. These records are maintained and stored in a variety of databases. Each database does not necessarily contain the same information.

Police services have wide discretionary powers about the type of information that is stored and released about individuals. Generally speaking, there are three types of record checks that may be requested, which become progressively more expansive and intrusive.

• Criminal Record Checks (CRC) – CRCs disclose criminal convictions (summary and indictable) referred to in RCMP or local police databases. CRCs will also include findings of guilt under the Youth Criminal Justice Act within the applicable disclosure period.

Generally, a CRC is released to the subject matter of the check (who is also the person applying for the check). That person may provide the results to the relevant prospective employer, volunteer agency or other requesting organization.

• Police Information Checks (PIC) – A PIC is broader and typically more comprehensive than a CRC. Information is searched from three databases. Disclosure will include Canada-wide Criminal Record History (as above), Vulnerable Sector Search (if required) and all Police History. This will include Local Police Information and Alberta provincial court records. There may be some variation about the information that is released depending on the local police services policy and procedures.As with the CRC, the results of the PIC are generally released to the applicant, who may then pass the results on to the relevant prospective employer, volunteer agency or other requesting organization.
• Vulnerable Sector Checks (VSC) – The VSC is the most in-depth check. It is usually required when an applicant is seeking employment or volunteer opportunities placing them in a position of trust or authority over vulnerable persons. The VSC is used to protect children (under 18 years of age) and other vulnerable persons who, because of their age, disability or other circumstance, are more vulnerable than others. When a VSC is conducted, all the information with a PIC will be released, as well as any information about sexual and violent offenses for which the offender has been pardoned (record suspension).Again, the VSC are generally released to the applicant, who may then pass the results on to the relevant prospective employer, volunteer agency or other requesting organization.

Anyone can request a PIC so long as the person who is the subject of the PIC provides his or her consent. In Alberta, an individual’s consent is required before police will perform a search of their police records for background check purposes.

Although it is common practice to provide the results only to the individual who requested the check, there is some variation depending on the police services. It may be released to an employer or volunteer agency when the individual requesting the check signs a consent form, or it is agreed to by both parties.  No other outside party will receive any negative information about the individual.

In general, CRCs can be conducted by police services, companies that perform name-base checks, and accredited fingerprinting companies (Royal Canadian Mounted Police, “Where do I get a criminal record check?” There are companies that have agreements with the local municipal police services to conduct CRCs regarding the RCMP’s Canadian Police Information database. This includes a search through the National Repository for Criminal Records on the basis of name and date of birth. Accredited fingerprint companies are also authorized to submit fingerprints to the RCMP’s Canadian Criminal Real Time Identification Services (CCRTIS) for searches of the National Repository of Criminal Records.

A significant number of background checks are requested each year in Alberta. You may request a check for any reason. Most frequently, police background checks are used to inform employment and volunteer hiring decisions. However they are also being conducted by educational institutions, licensing bodies, adoptions, foster care, and for foreign travel.

• Criminal Records – Adult and Youth (includes summary conviction offences , dual/hybrid offences and indictable offences);
  • Summary conviction offences are usually less serious than indictable offences and carry a lesser penalty.
  • A dual or hybrid offence means that the Crown prosecutor can choose whether to prosecute by way of summary conviction or indictment depending on the circumstances of the case.
  • Indictable offences are usually the most serious and have greater penalties.
• Pending and outstanding charges;
• Outstanding warrants for arrest Canada-wide;
• Judicial Orders while in effect: probation, prohibitions, peace bonds and recognizance conditions;
• Vulnerable Sector Records (pardoned sex offender);
• Alternative Measures for one year period (some offences are diverted from the formal court process).
• A number of non-conviction interactions with the police if “deemed relevant”. This provides the police with a significant scope of discretion. This is discussed in more detail below.

See: Calgary Police Service, “Police Information Checks”.

Non-conviction records cover a wide range of interactions with law enforcement. Police collect a vast amount of information from the people they come into contact with. There is a significant amount of police discretion when including information on a PIC. This includes:

Non-conviction dispositions: findings of guilt (not criminal convictions):

• Incidents in which a charge was laid but there was no conviction (absolute and conditional discharges)
  • Absolute discharge for one year period
  • Conditional discharge for three year period
• Non-conviction dispositions: no finding of guilt
• Charges that were withdrawn or stayed (stay of proceedings)
• Charges where there was a finding of not guilty (acquittal)
• Records of not criminally responsible by reasons of Mental Disorder pursuant to s. 16(1) of the Criminal Code (disclosed if deemed relevant);

Police contacts:

• May also include complaints where charges were never laid;
• Mental health apprehensions or even a call during a crisis;
• 911 calls (e.g., suicide attempts);
• Investigated as a ‘person of interest’ and surveillance;
• A call to the police after you were victimized;
• Involved in a police investigation as a witness;
• Casual police contact;
• “Relevant occurrences”-this may include any interactions an individual has had with police as being disclosed, including mental health occurrences, if they are deemed to be relevant. A relevant occurrence may not have resulted in charges being laid, but will be disclosed if relevant or there is a potential risk to public safety.

There are no set guidelines for how long the police services will keep non-conviction records. Different records may be kept on file for different periods of time and some may be kept indefinitely unless a request is made to have the records destroyed. Non-conviction records related to major offences which have an aspect of violence or predatory behavior may be kept indefinitely. One police service will keep non-conviction records for a more definite period of 25 years.

The police will often disclose your non-conviction records in a PIC if they believe the information will help the potential employer or other agency in their decision-making process. This assumes that these agencies are qualified to make a determination that the information disclosed will determine the candidate’s suitability or pose a safety risk. It may lead to unfair stigmatization and result in the candidate being excluded from consideration for the position. As a result, the candidate may never know why they have been excluded from consideration, and thus are unable to respond. Although never convicted for a crime, the candidate will suffer an invisible form of punishment. The repercussions may reach beyond the denial of a position to a lingering loss of self-esteem, trust, and respect from the community.

Non-conviction records can result from a variety of interactions with the police and not all may be recorded. There are generally two ways to find out if you have a police record.

Option One: Request a detailed information check directly from the police service(s) you interacted with, for example, the Calgary Police Service. To ensure you don’t miss anything you will want to request the most detailed record check they provide. They may or may not provide you with a VSC. Typically, this information is only provided if you are applying for a specific employment or volunteer position where you will be working with the vulnerable sector.

There is often inconsistent release of information between the different police forces. It is recommended that you request the information directly from the police division that you interacted with. The police service you contact may have forms you can download from their website. An overview of the forms may be helpful in providing you with the information about the types of records that will be revealed on the check.

See:

• Calgary Police Service Police Information check
• Edmonton Police Service Police Information Check

A fee is often associated with requesting your record.

If you are unable to get a thorough check, you can try filing an access to information request outlined in option two.

Option Two: File a request under access to information or privacy legislation act request. Again, you should make this request directly to the police service with which you had your interaction.

For a provincial or municipal police force, you will need to use that province’s freedom of information legislation. In Alberta it is the Freedom of Information and Protection of Privacy Act (FOIP Act). If you require your information from the RCMP, you are required to use the federal privacy access to information laws laws, which are in the Access to Information Act. Local police service websites may have more detailed information or form you can fill out..

Exceptions to your right to access your information depend on the context of the request. For example, if accessing your information involves disclosure of another person’s personal information, your rights may be curtailed. Police also have wide discretion in this area. For more information on access to information requests, and their limits, click here.

Non-conviction police records are not usually removed from police databases automatically. Absolute discharges and conditional discharges should be automatically sealed and removed from the Royal Canadian Mounted Police (RCMP) databases after one year for an absolute discharge, and three years for a conditional discharge. Sometimes, however, local police keep this information in their databases for a longer period.

There are two processes you can undertake to prevent the disclosure of non-conviction records: purging or suppressing. Each is discussed below:

• Purging (Removing) Non-conviction records from Police Databases – If a non-conviction record is removed from a police database, it will not be disclosed on a record check. As a general rule, the police force that created the non-conviction record decides whether it will purge information held in local and national databases.If you would like this information removed, you must ask the specific police force you had been dealing with. If you dealt with several police forces, you must contact each office individually. Your request should be in writing. Be sure to ask that all your non-conviction records, photographs and fingerprints be removed from local police force’s database as well as national police databases. The police will consider the circumstances of your non-conviction information and make a determination on the removal of the information.
  • Make your case! Information that may help the police make their determination whether they should remove or suppress your non-conviction record:
    • Were there circumstances that may explain the interaction?
    • Were you formally charged? If not, how did the case end?
    • What was the nature of the interaction or allegation?
    • Did the event happen a long time ago?
    • Were you young at the time?
    • Were there other interactions or allegations?
    • What is the impact of the non-conviction record on your life?
    • How could release of this information negatively impact your life?
    • Is the release of this information discriminatory? (Does the information relate to a physical or mental disability?)
  • A Word of Caution: You should be careful in disclosing additional information to the police. At the same time, you should never lie to the police. If you are unsure about what information you should offer to the police, you should speak with a criminal lawyer first.
• Suppressing (withholding) a non- conviction record (withheld). A record is suppressed if a specific entry is withheld from your record check but it is not removed from the police databases. Usually, if you request a record check, the police records will send the results of your record checks directly to you. If you see a non-conviction entry, you may ask the police service to withhold this entry from your records.Suppression is a selective process. To make this request, you will have to write directly to the police services asking to withhold this particular entry from your record check. You may provide the same information as in the purge request.

Many police forces have their own internal procedures for people who want to purge or suppress their non-conviction record. If you know what local police force has your information, you should contact them individually in regards to their procedures for purging or suppressing your non-conviction record. You can start by calling or searching their website.

Depending on the police services you are dealing with, there may be an appeal process you may access if your request is denied. Some police services have an “appeal panel” that you can contact and ask that they reconsider your request for a purge or suppression of your record.

If the police services refuse your appeal there are independent oversight bodies that may be able to help you.  You can try your appeal with the relevant police commission, police services board or independent civilian oversight agencies.

In Alberta, police oversight agencies include:

• Alberta Law Enforcement Review Board
• Calgary Police Commission
• Edmonton Police Commission

For Canada, Canadian police oversight agencies include:

• Civilian Review and Complaints Commission for the RCMP

Federal and provincial human rights codes protect the relationships between you and your employer. Under section 7 of the Alberta Human Rights Act, a private sector employer may not discriminate against an applicant because of a physical or mental disability. There is similar protection under the Canadian Human Rights Act (s 3(1)). In addition, the Canadian Human Rights Act prohibits discrimination relating to a conviction for which a pardon has been granted or a record suspended (s 3(1)).

If you have come into contact with the police due to a mental health issue the police may have kept a record of this interaction. Generally an employment decision cannot be based on this information (although in some cases it may be determined the mental health issue may be a legitimate barrier to your performance for the job). At issue may be the circumstances that you have a mental health issue on record.

If you feel like you have been discriminated against based on information disclosed in a non-conviction police check, you may launch a complaint with the Alberta Human Rights Commission (if your potential employer is a federal agency, you would refer to the Canadian Human Rights Commission). Information on how to approach the Human Rights Commissions are available on their websites (here and here). It is also available on our website here.

Both provincial and federal legislation limits employers and other organizations from collecting private information in the employment context. The legislation that may offer you protection varies with whether you are dealing with the public or private sector. A potential employer should not be asking you for more information than is reasonable or necessary to determine your suitability for the job. The following are the various pieces of legislation that cover privacy:

• Federal government workplaces are covered by the Privacy Act. For more information you can visit the website of the Office of the Privacy Commissioner of Canada.
• Private organizations that deal with federal works and undertakings (e.g., telecommunication companies, banks, airlines, etc. are covered by the Personal Information Protection and Electronic Documents Act. For more information you can visit the website of the Office of the Privacy Commissioner of Canada.
• In Alberta, private sector workplace privacy is covered by the Personal Information and Protection Act. For more information, you can visit the website of the Office of the Information and Privacy Commissioner of Alberta.
• In Alberta, public sector workplaces are covered by the Freedom of Information and Protection of Privacy Act. Your local municipal police service is governed by this Act. For more information, you can visit the website of the Office of the Information and Privacy Commissioner of Alberta.