How can a Criminal Record Hurt your Job Prospects?

Sat/11/2010 12:21

Having a criminal record can significantly hurt your ability to work in a given position.

What is a Criminal Record?

When an individual is convicted of a criminal offence, it is recorded in a “criminal record”. The record is stored in a RCMP database called the Canadian Police Information Centre (CPIC) and is accessible to law enforcement agencies in Canada and border security officials in Canada and other countries.

In addition to the information stored in the CPIC, local police forces usually maintain their own databases that contain information about pending charges, charges that resulted in an acquittal, an investigation involving you, your involvement as a witness, complaints against an individual by others (including complaints about domestic abuse) and notes about any contact you might have had with the police. The information in a local police force database depends on what information the particular force records, which varies by police force.

What is a Criminal Record Check?

A criminal record check (also known as police records check, police background check, criminal background check, criminal reference check, etc.) produces a report from police databases. As one might expect, the information in a criminal record check would include information about the individual’s criminal record from the CPIC (criminal convictions). However, since criminal record checks are performed through a local police force (such as the Toronto Police Service) a police background check may also include a wide range of additional information from the database of the local police force. Whether the police force provides information in addition to criminal convictions depends on the policies and practices of the force itself and whether disclosure is required by law (necessary for some professions, described below).

Criminal Record Checks and Employment

An employer cannot have a criminal record check performed without your consent. Many employers ask that prospective employees and volunteers consent to a criminal record check. In some industries, having a check performed prior to employment is actually required be law. These occupations include government employees, teachers, police officers, nuclear power plant employees, nurses, bank employees, financial advisors, couriers, security guards, casino employees, taxi or limousine drivers, collection agency employees, funeral directors and truck drivers.

Typically, a criminal record check is performed after a job candidate is deemed otherwise qualified. An offer of employment is made on the condition that result of the criminal record check does not render them unsuitable. Applicants may refuse to consent to a criminal background check, however the hiring organization would be within its right to withdraw the offer of employment.

An employer may use the record of an applicant’s prior criminal offence to refuse to hire him or her. However, according to the Ontario Human Rights Code, an employer may not make a hiring decision on the basis of a pardoned criminal offence or a provincial offence (traffic ticket or municipal bylaw offence). As discussed above, criminal background checks may include information about any contact with police.

In addition to pardoned criminal offences and provincial offences, a person with a mental illness may come into contact with the police under provisions of the Mental Health Act. If revealed by a criminal background check, this information cannot be used by an employer to make a hiring decision. To do so would be contrary to the Ontario Human Rights Code’s prohibition on discrimination on the basis of disability.

How else can a Criminal Record Hurt Me?

A criminal record may seriously jeopardize an application for Canadian citizenship, entrance to a regulated profession (dentistry, medicine, accounting, law, etc.) or international travel.

Obtaining a Pardon

Once you are convicted of a criminal offence, a record will permanently appear in the CPIC, unless you obtain a pardon. Pardons fall under the jurisdiction of the Parole Board of Canada.

If convicted of a summary offence (less serious crime) other than a sexual offence, you can apply for a pardon three (3) years after serving the sentence (including probation). So long as certain conditions are met, a pardon will usually be granted.

If convicted of an indictable offence (more serious crime) or a summary sexual offence, you must wait for five (5) years after serving the sentence (including probation) to apply for a pardon.

If convicted of a personal injury offence where a sentence of two or more years was imposed or an indictable sexual offence, you must wait for ten (10) years after serving the sentence (including probation) to apply for a pardon.

After applying for a pardon, it may take months or years before a decisions is reached. An application for a pardon may be denied as the decision to grant a pardon is ultimately the discretion of the Parole Board of Canada. If a pardon is granted, the criminal record is not destroyed. Instead, it is kept separate from the records of non-pardoned criminal convictions. Once granted, a pardon may cease to have effect if, for example, the individual is subsequently convicted of an indictable offence.

You do not need to apply for a pardon if you have received an absolute or conditional discharge after July 24, 1992. A discharge occurs when there is a finding of guilt by the court, but the accused is deemed not to have been convicted. A conditional discharge will be automatically removed from CPIC three years after the court decision, while an absolute discharge will be automatically removed after one year.

Enhanced Criminal Background Checks

Employers who hire workers to work with vulnerable members of society (children, seniors, mentally disabled, etc.) may perform criminal background checks which show sexual offences, including sexual offences that have been pardoned. Enhanced checks are meant to provide the highest level of protection to vulnerable people.

Other Precautions

When travelling with a criminal conviction that has not been pardoned, it is possible for the border services officers of other countries to make records of the conviction and retain these records on their databases even after a pardon is granted by the Parole Board of Canada.

Keep in mind that a pardon only applies to the information in the CPIC database and that the information in a local police force database will not be removed by a pardon.

For additional information on obtaining a pardon, hiring practices or criminal records, please contact us.

Elections and Time off to Vote

Tue/10/2010 16:33

With municipal elections coming up on October 25, 2010, employers and employees should be aware that workers are entitled to time off to vote.

On election day, polls are open from 10:00 a.m. until 8:00 p.m. The Municipal Elections Act requires that employees have at least three consecutive hours of time off from work in order to vote without any loss of pay. If an employee’s shift would not allow for three consecutive hours during the day in which to vote, the employer must allow for time off, without loss of pay.

If the employee’s shift already allows them three consecutive hours in which to vote, then the employer is not required to provide any additional time off. This means, for example, that if an employee is scheduled to work from 9:00 a.m. to 5:00 p.m., he or she would already have three consecutive hours off to vote (from 5:00 p.m. to 8:00 p.m.) and the employer would not be required to provide any time off.

If an employee’s shift is from 10:00 a.m. to 6 p.m., however, they would only have two consecutive hours off to vote (at most), from 6:00 p.m. until 8 p.m. In these circumstances, an employer would be required to provide time off so that the employee has three consecutive hours off in which to vote.

The law allows an employer to determine when the employee is given time off. This means that the employer can allow the employee to take three hours off in the middle of the day, or can allow the employee to come in late or leave early so that he or she has three consecutive hours off. In the example above (shift from 10:00 a.m. to 6:00 p.m.), it would make most sense for the employer to allow the employee to leave early (at 5:00 p.m.), since this would allow for the least time off.

To be eligible for time off to vote, an employee must be a Canadian Citizen, resident of an electoral district in Ontario, at least 18 years of age and not otherwise prohibited from voting.

For more information on the Municipal Elections Act or other election-related leave, please contact us .