The Abuse of Criminal Record Checks

Document Type

Article

Publication Title

Law Now

Volume

34

Issue

5

DOI

10.11575/PRISM/34190

First Page

1

Publication Date

January 2010

Abstract

In 2007, the City of Ottawa awoke to the value of criminal record checks, at least for its fire department. It required new applicants for firefighter positions to consent, as a precondition of employment, to the City accessing the police department to obtain any criminal records. It also required such written consents from specific employed firefighters on a case-by-case basis justified on reasonable grounds. The firefighter union only objected to the third leg of the policy that compelled consent by firefighters to a criminal record check every three years. The City of Ottawa claimed that this was part of management rights in the collective agreement. The union grieved, saying this was an unjustified invasion of the firefighters' privacy. The arbitrator concluded there was a significant distinction between the initial hire and the ongoing employment relationship. The considerations that apply to an applicant for employment did not apply to the same extent to ongoing employees who have been observed by the employer over time. Firefighters, despite their governing legislation, the arbitrator continued, are "essentially indistinguishable from a myriad of trades persons and professionals whose work would involve the normal attendance at a variety of premises." One cannot conclude that "the duties and responsibilities of firefighters are such as to require or justify such blanket invasion of privacy." He allowed the grievance and struck down the fixed periods of the policy, but left open the practice of the employer obtaining consent where reasonable grounds justify it even without compliance with the process set out in the Privacy Act. The checks may falsely reassure the employer because they may have gaps in them. Many police forces produce a simple letter-like document called a "Police Information Check." The document will only be as good as the identification information offered and the convictions screened. If names or other subject information such as previous locations of residence are inaccurate or incomplete, the report may be useless. The report may not contain information on current charges or convictions from other jurisdictions. Regulatory convictions - such as licence violations - which may be highly relevant to some employers, are generally not listed. Accordingly, a horrendous driving record would escape this level of scrutiny.

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