Many people are of the impression that obtaining a criminal record check is simply. You receive a charge, attend court, and if you are found guilty, the crime follows you throughout your life until you obtain a pardon. Simple enough, right? Wrong.
As a criminal defence lawyer, I am reminded every day of how the system really works — and while it is unfair, if you know how the system works, you can prevent problems arising for yourself.
Three Types of Background Checks Employers Can Run
It is important to note that there is no single “background check” in Canada. There are at least three types of background checks and employers rarely advise applicants which type they will be conducting.
A standard background check (also known as a criminal record check) is performed using CPIC (the Canadian Police Information Centre). CPIC contains information about all persons arrested since 1962 including names, aliases, descriptions and addresses. Convictions are also recorded. Only convictions are shown on a standard background check.
A criminal record and judicial matters check is similar to the standard background check however; it includes additional information such as outstanding charges, warrants and judicial orders. Banks and credit unions commonly perform this type of search.
A Vulnerable Sector Check (VSC) is used by organizations that employ individuals working with vulnerable populations (i.e., minors, elderly, etc.). A VSC is a special type of background check that can include information related to sexual offenses, even where there was no conviction. This occurs due to a process called “Police Information Disclosure”. Additionally, a VSC may reveal Record Suspension (formerly referred to as Pardons), which typically remains private. Therefore, if you have ever been investigated for a sex-related offense, whether or not charges were laid, consult with a lawyer prior to applying for employment or volunteering in a position requiring a VSC.
What Does CPIC Really Contain?
CPIC (Canadian Police Information Centre) is essentially the database against which everybody conducts some form of background check, either directly or indirectly. Many people mistakenly believe that CPIC only contains convictions. It does not.
CPIC may contain:
- fingerprints taken during an arrest regardless of whether any charges were ultimately filed;
- notes related to charges that were subsequently withdrawn or stayed;
- peace bonds and recognizances;
- mental health apprehensions pursuant to provincial legislation;
- DNA Orders; and,
- convictions together with the terms of sentencing.
Perhaps the most surprising aspect of how CPIC operates is that merely being arrested may create a record, even if the Crown decides not to proceed with laying charges. In addition, many local police services maintain their own separate databases that are not always synchronized with CPIC. Charges can be withdrawn in court and disappear from official files and yet still appear on a local records check because nobody deleted it from the local database. This is more common than it should be.
Discharges Do Leave a Trail
I frequently hear: “The judge discharged me, therefore I have no record.” While partially correct, this statement ignores reality. A discharge – conditional or unconditional – establishes that you are not formally convicted. From a technical standpoint, this makes a big difference. However, a discharge still creates a record, and this record sits with the RCMP for a specified amount of time – i.e., one year for an unconditional discharge and three years for a conditional discharge from the date of grant. During this time frame, it can potentially appear on certain types of checks. Following the time frame established above, the discharge record is meant to be automatically removed from CPIC.
However, as we all know, intended does not mean accomplished. I have personally observed discharges removed from CPIC long after the retention period expired solely due to delays in administrative processing or clerical errors made by reporting agencies. If you received a discharge and your background checks continue to surface your discharge beyond the expiration of the retention period established by law, then this could likely be litigated and you might require legal representation to enforce your rights and advocate on your behalf to remove the unnecessary references to your discharge.
Withdrawn/Dismissed Charges & Criminal Record Checks
Your defence lawyer winning your case in court seems like the end of your story. To the system it is not necessarily so.
While your withdrawal of charges prevents your charge from becoming a conviction and will not show up on a basic background check; however, your fingerprints and arrest record can still be retained in various police databases unless you specifically request their removal. Although most lawyers inform their clients that they won their cases; few inform them that the paperwork relative to removing their fingerprints and arrest records from police databases continues to sit in limbo. Most people do nothing with regard to requesting removal of these records because nobody informs them that this action is necessary.
If you want to remove your fingerprints and arrest records from police databases; you need to formally request their removal from the police department that originally charged you. Depending upon the location, this can take several months. Nevertheless, it is beneficial for anyone who intends to pursue careers within highly-regulated fields or who intend to cross into the United States at any point in their lives to formally request removal of any unwanted police records from public view.
Peace Bonds & Consequences
A peace bond appears to be a less severe penalty than receiving a criminal charge. A peace bond is simply an agreement between you and the Crown whereby you agree to refrain from committing a further breach of peace for a specified term of time (usually one year). Do not downplay its implications.
Peace bonds are documented in CPIC and can appear on enhanced background checks for extended periods following the conclusion of the peace bond agreement. I have represented clients who agreed to enter into peace bonds many years ago believing it would resolve issues quickly. Upon seeking new employment or pursuing certification in a particular profession; these same clients discovered that their prior peace bond agreements created major obstacles to obtaining new employment or certification opportunities. A peace bond may not provide you with an immediate solution; rather it may provide you with protection for the future.
Suspension of Records Is Not Deletion of All Records
A Record Suspension (commonly referred to as a pardon) creates two records: one that is available to the general public via CPIC, and another that is available only to law enforcement agencies (and perhaps other government agencies) that access records for legitimate reasons.
In fact, most routine background checks conducted via CPIC will yield negative results once a Record Suspension has been granted.
However, while your Record Suspension removes your conviction(s) from view by law enforcement and public-accessible background checks; it does not destroy your records.
Rather, your conviction(s) are moved into a restricted file. Specifically designed scenarios can permit access to previously-suspended conviction(s): e.g., new criminal charges are brought against you; certain types of Vulnerable Sector Checks concerning sexual offenses; or requests by law enforcement officers in limited circumstances. Moreover, having obtained a Record Suspension does not ensure your name is cleared internationally. U.S. Customs and Border Protection maintains its own database constructed in part based on information shared prior to your Record Suspension having been granted; thus U.S.-based border patrol agents may deny entry across international borders into the United States based on crimes committed decades prior that were suspended in Canada.
Rules Differ When You Were Charged Under Youthful Offender Status
If you were charged with an offense as a youthful offender under the YCJA, different retention rules apply — generally speaking these retention rules favor youth offenders more leniently than adults. Generally speaking:
Access periods range from three months to five years after completion of your sentence (depending on the offense/offense classification); and,
After this time period elapses; your record becomes sealed or destroyed.
Unfortunately, enforcement of youth records can vary greatly among jurisdictions — particularly at the municipal levels — and youth records can remain accessible in databases far beyond the retention limits outlined in statute.
Therefore, if you are currently an adult and your juvenile record has surfaced on background checks despite being completed years ago — this presents a viable opportunity for legal relief; provided you bring this matter to attention.
Background Checks & The Real-World Implications
Generally-speaking employers — landlords — and regulatory bodies rarely disclose which type(s) of checks they are performing or what they can reveal. They simply ask for permission for you to undergo the check; and let whatever emerges dictate their course-of-action. This places responsibility on you to understand your personal history before someone else discovers it.
If you have ever been involved with any component of the criminal justice system — i.e., been arrested — received a charge (that was dismissed) — received a discharge — received a peace bond — received an acquittal — etc.; before you need any background checks for employment purposes — immigration purposes — etc., obtain copies of your individual records directly through the RCMP or your local police service. Do not rely on an employer’s screening company providing you with an unpleasant surprise!
If something surfaces on your background check(s) that does not belong there; do not expect things to eventually rectify themselves. Records cannot purge themselves; you must make a formal request — follow-up — possibly fight for removal.
Disclaimer: Information provided on this blog is for general informational purposes only, it does not constitute legal advice. If you have a case at the Brampton Criminal Court and need legal representation, contact Manbir Nirwal for a free consultation. We’re here to help.
