2007 Annual Conference Council on Licensure, Enforcement and Regulation “Criminal Background...

Council on Licensure, Enforcement and Regulation

2007 Annual Conference

“Criminal Background Checks –Challenges & Utility: The Canadian

Experience”Jill Dougherty /Nancy Swetnam

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

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.


CRIMINAL BACKGROUND CHECKS FOR INITIAL LICENSURE

• Typical licensure requirements of “good character”, plus regulatory body’s 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


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


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)


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 member’s 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


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


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.


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


“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


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.


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/licensure, that an applicant provide the regulatory body with information concerning any previous criminal convictions, without any confirming criminal record check.


LEVELS OF CRIMINAL RECORD INFORMATION AVAILABLE VIA CPIC

● Several levels of criminal record information are available through CPIC, including the following:

a) Full Criminal Record: includes not only conviction history but also stayed proceedings, withdrawn charges, acquittals and absolute and conditional discharges;

b) Criminal Record Synopsis: includes only personal information [such as name, date of birth and personal characteristics] and conviction history; and

c) Criminal Name Index: indicates only that a record may exist, but includes no information about conviction history, etc


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.


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.


“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.


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.



● 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.



● 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.


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/licensure, 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.


Speaker Contact Information

Jill Dougherty WeirFoulds LLPThe Exchange TowerP.O. Box 480, Suite 1600130 King Street West Toronto, ON M5X [email protected]

Nancy SwetnamArizona Supreme Court, Certification & Licensing Division1501 West Washington, Suite 104Phoenix, Arizona [email protected]

2007 Annual Conference Council on Licensure, Enforcement and Regulation “Criminal Background...

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