Jill Dougherty Nancy Swetnam

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Criminal Background Checks Challenges
Utility The Canadian Experience

• Jill Dougherty /Nancy Swetnam

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STAGES AT WHICH CRIMINAL BACKGROUND INFORMATION
MAY BE SOUGHT

• Practice varies among professional regulatory
  bodies regarding the point at which a criminal
  record check is required.
• Some require it only as a condition of initial
  registration/licensure and upon reinstatement.
• Other regulators require criminal record checks
  for existing registrants who have not previously
  provided a criminal record check.

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CRIMINAL BACKGROUND CHECKS FOR INITIAL LICENSURE

• Typical licensure requirements of good
  character, plus regulatory bodys duty to
  protect the public interest make past criminal
  conduct relevant and permit criminal background
  checks
• Issue is how past conduct reflects on current
  character
• Typically, offence must involve some dishonesty,
  moral turpitude or breach of trust to be relevant

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CRIMINAL BACKGROUND CHECKS FOR INITIAL LICENSURE

• Relevant to consider nature and age of
  conviction/finding of guilt, mitigating
  circumstances, conduct in intervening period,
  seriousness of offence, relevance of offence to
  profession for which licensure/registration is
  sought
• Must weigh evidence of good conduct against
  evidence of criminal offence
• Past criminal conviction not generally an
  automatic bar to registration/licensure

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DEALING WITH CRIMINAL RECORDS AT LICENSURE STAGE

• Depends on particular statutory provisions
• Frequently, initial discretion lies with the
  Registrar to refuse registration (e.g. RHPA
  Registrar can decline registration where he/she
  has doubts, or reasonable grounds, regarding
  whether an applicant fulfills registration
  requirements, including good character
  requirement)
• Some regulators permit conditional licensure,
  pending completion of criminal record check (with
  members undertaking to accept revocation if
  relevant criminal conduct exists)

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RELEVANCE OF CRIMINAL CONDUCT POST-LICENSURE

• Many professional regulatory statutes provide
  that it is professional misconduct to be found
  guilty of an offence relevant to the members
  suitability to practise
• May be additional regulations which define
  professional misconduct to include breaking the
  law (e.g. breach of laws designed to protect
  public health
• Depending on wording of statute, may not require
  a conviction. A finding of guilt (e.g. with
  absolute or conditional discharge and no
  conviction) may suffice
• Depending on wording of statute, offence need not
  have occurred during the course of professional
  practice, provided that it is relevant to
  suitability to practise

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RELEVANCE OF CRIMINAL CONDUCT POST-LICENSURE

• General misconduct definition (e.g. disgraceful,
  dishonourable or unprofessional conduct conduct
  unbecoming a member) also includes criminal
  conduct or breaches of the law which reflect on
  professional integrity/suitability to practise
• Depending upon wording of general misconduct
  definition, conduct need not occur during course
  of professional practice

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SELF-REPORTING REQUIREMENTS

• Many professional regulatory bodies have an
  ongoing self-reporting requirement which requires
  registrants/licensees to report any criminal
  conviction subsequent to registration.
• Some also require the reporting of such
  information as a condition of annual renewal.

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CONDUCTING CRIMINAL RECORD CHECKS VIA CPIC

• Certain Canadian criminal record information is
  recorded through the Canadian Police Information
  Centre ("CPIC"), a computerized information
  system for Canadian law enforcement agencies.
• CPIC is operated by the RCMP. Provincial police
  forces and certain other approved agencies have
  access to CPIC. Broadly speaking, only police
  and other similar law enforcement agencies may
  have direct access to CPIC for purposes of
  searching criminal records.
• CPIC is a name-based (rather than
  fingerprint-based) system

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RTID PROJECT

• RCMP is working toward implementation of Real
  Time Identification Project (RTID)
• Existing paper fingerprint records are being
  converted into electronic format to be used in
  new system
• 2009 target date for full implementation
• Will allow electronic recording and submission of
  fingerprints, disposition information and
  criminal record data
• Uses LiveScan technology
• Targeted to permit civil 10-print searches in 72
  hours, criminal record updates in 24 hours

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ACCESS TO CRIMINAL RECORD INFORMATION BY
REGULATORY BODIES

• Professional regulatory bodies (such as, for
  example, health profession regulatory bodies) are
  not approved CPIC agencies and cannot,
  themselves, have direct access to CPIC.
• Some regulatory bodies (e.g. certain provincial
  regulators of casinos and gaming and some health
  profession regulatory bodies, among other
  agencies) enter into a memorandum of
  understanding with the relevant provincial police
  force, providing for the police to conduct CPIC
  searches and criminal record verifications (via
  fingerprints) on behalf of the regulator.

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SUBMISSION OF CRIMINAL RECORD INFORMATION BY
APPLICANT TO REGULATOR

• An alternate approach (adopted by many health
  profession regulatory bodies) is to require
  applicants for registration/licensure to
  themselves obtain and submit a CRS (Criminal
  Record Synopsis) from CPIC as part of their
  application.
• A third approach (also adopted by certain health
  regulatory bodies and other licensing bodies) is
  to require, as a condition of registration/licensu
  re, that an applicant provide the regulatory body
  with information concerning any previous criminal
  convictions, without any confirming criminal
  record check.

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LEVELS OF CRIMINAL RECORD INFORMATION AVAILABLE
VIA CPIC

• Several levels of criminal record information are
  available through CPIC, including the following
• Full Criminal Record includes not only
  conviction history but also stayed proceedings,
  withdrawn charges, acquittals and absolute and
  conditional discharges
• Criminal Record Synopsis includes only personal
  information such as name, date of birth and
  personal characteristics and conviction history
  and
• Criminal Name Index indicates only that a
  record may exist, but includes no information
  about conviction history, etc

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LIMITATIONS ON THE CONTENT OF CPIC

• The content of the CPIC database (and therefore
  the information available through a CPIC search)
  is affected by the provisions of the Criminal
  Records Act and various Ministerial Directives
  which specify what is to be recorded on CPIC, how
  long information is to be maintained on CPIC and
  what types of information must be purged from
  CPIC at certain intervals.
• The content of CPIC is also affected by the
  extent to which local police services enter
  information relating to criminal convictions into
  the CPIC system. There is no statutory
  obligation on local police to submit information
  to CPIC.

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CRIMINAL RECORD INFORMATION PURGED FROM CPIC

• Withdrawn charges and stays may be removed from
  CPIC at the request of the individual to whom
  they relate.
• Conditional discharges are purged from CPIC after
  3 years.
• Absolute discharges are purged from CPIC after 1
  year.

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PARDONED RECORDS

• Records with respect to which an individual has
  obtained a pardon are removed from the "main"
  criminal record database into another database
  for which access is restricted.
• Generally speaking, information about pardoned
  records is no longer available to most regulatory
  bodies through a CPIC criminal record search and
  there will be no indication that the person
  received a pardon.

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INFORMATION REQUIRED TO CONDUCT CRIMINAL RECORD
CHECKS

• The scope of a criminal record check performed as
  a condition of licensure will depend upon the
  extent of the information requested by the
  regulatory body from the applicant and on the
  type of information that the applicant consents
  to being released.
• Criminal record information relating to an
  applicant will only be released to a professional
  regulatory body where the individual consents in
  writing to the release of the particular
  information in question.

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INFORMATION REQUIRED TO CONDUCT CRIMINAL RECORD
CHECKS

• Where the regulatory body (through the police)
  obtains the criminal record check, the
  application form for licensure/registration
  generally requires the applicant to supply
  name(s), d.o.b., social insurance number.
• In some cases, the application may also require
  the applicant to provide fingerprints (done by a
  police service or an accredited agency approved
  by the regulator). In either case, the applicant
  will be asked to consent to the criminal record
  search and to the release of the results to the
  regulator.

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INFORMATION REQUIRED TO CONDUCT CRIMINAL RECORD
CHECKS

• To get the full range of information available to
  a professional regulatory body through a criminal
  record check, some regulators
• seek applicant's consent not only for the search
  of information concerning criminal convictions,
  but also concerning all discharges not purged
  from CPIC and all outstanding criminal charges of
  which the police are aware
• provide for initial submission of fingerprints,
  or for fingerprint verification in the event that
  a search by name and d.o.b. turns up convictions,
  etc. that may relate to the individual
• require the individual to consent to the direct
  release of the information to the regulatory body.

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REQUESTS FOR ADDITIONAL INFORMATION RE CRIMINAL
AND OFFENCE HISTORY

• Many regulatory bodies seek additional
  information regarding an applicant's criminal
  history on the application for registration/licens
  ure, asking questions about previous charges,
  arrests, participation in a diversion program or
  other resolution process, or pardons.
• In addition, applicants are sometimes asked about
  convictions under federal statutes, such as the
  Food and Drugs Act or the Controlled Drugs and
  Substance Act.

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Speaker Contact Information

• Jill Dougherty
• WeirFoulds LLP
• The Exchange Tower
• P.O. Box 480, Suite 1600
• 130 King Street West
• Toronto, ON M5X 1J5
• 416-947-5058
• jdougherty_at_weirfoulds.com
• Nancy Swetnam
• Arizona Supreme Court, Certification Licensing
  Division
• 1501 West Washington, Suite 104
• Phoenix, Arizona 85007
• 602-452-3362
• nswetnam_at_courts.az.gov