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Employers access to your record: What are your rights?

Having a criminal conviction can present many challenges for individuals (e.g., employment, volunteering, schooling), as there exists a substantial amount of stigma associated to having a record. For the 4.2 million Canadians that have a criminal record, one of the most challenging feats can be in relation to finding employment.

It has increasingly become common practice for employers to ask applicants whether or not they have one or more criminal convictions that have not been pardoned (or suspended) by the government. Consequently, many applicants have been swayed or required to disclose their criminal history to their potential employers when seeking out a job prospect.

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This placed further barriers and stress on individuals with a criminal past, when seeking employment, promotions, or new job opportunities.

In these situations, it is essential for individuals to be aware of the legislations in place which protects their human and privacy rights.

Knowing your rights:

It is legal in Canada, under the Canadian Criminal Code, for employers to ask applicants whether they have committed a crime that they have not been pardoned for. Employers may also legally obtain a background check from applicants and inquire whether or not the individual has a criminal record.

However, since 1985, once an individuals receives a pardon or record suspension, they are no longer required to disclose their criminal history to their future or current employers.

Employers must also, always, acquire written consent from applicants and employees prior to attaining a background check. No employer may complete a background check without consent.

It is important to note, that employers must establish that there is a valid reason to obtain a criminal background check that is in relation to the position in question.

Many provinces and Canadian jurisdictions do not allow employers to refuse an applicant with a criminal conviction, unless they can prove that the conviction would negatively impact how the individual could perform their job.

It is also illegal for companies to single out one particular candidate and requiring them to solely obtain a background check.

What employers can access:

When employers do obtain a criminal background check from applicants there is specific information that is made available and can be accessed.

First, there are two types of criminal record checks. The first is a vulnerable sector screening and the second is a criminal background check.

The vulnerable sector screening identifies whether or not an individual has a criminal record, and whether an individual has received a record suspension or pardon for any sexual related offences. This type of screening process is generally used for individuals applying to volunteer or employment positions where they are responsible for children, seniors, or other vulnerable persons.

In comparison, the criminal record check process only verifies whether an individual has a criminal record or not. With this check, employers will only be able to see whether or not the individuals’ record is “clear” or “not clear”. The police background check does not give detailed information on the offences or any history if the record is “not clear”.

However, the “not clear” outcome does not always indicate that the applicant has a record. Absolute, withdrawn, or stayed charges that have not been removed from an individual’s criminal record may indicate that a record is “not clear”.

In certain cases, individuals who have the same last name and date of birth may receive a “not clear” result on their background check if one of the individuals has a record. This is a result of the fact that background checks only use a name and date of birth, and not the full fingerprints, which is the unique identifying marker for every individual.

Consequently, this “not clear” outcome may force applicants to disclose their history, both criminal and not, and any contact with the police in hopes to potentially obtain employment.