Transcript Jill Dougherty

2007 Annual Conference
“Criminal Background Checks –
Challenges & Utility: The Canadian
Experience”
Jill Dougherty /Nancy Swetnam
Council on Licensure,
Enforcement and Regulation
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.
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
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
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
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
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
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)
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
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
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
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
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
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.
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
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
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
“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
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
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.
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
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.
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
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
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
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.
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
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.
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
“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.
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
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.
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
INFORMATION REQUIRED TO CONDUCT CRIMINAL RECORD
CHECKS
●
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.
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
INFORMATION REQUIRED TO CONDUCT CRIMINAL RECORD
CHECKS
●
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.
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
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.
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia
Speaker Contact Information
Jill Dougherty
WeirFoulds LLP
The Exchange Tower
P.O. Box 480, Suite 1600
130 King Street West
Toronto, ON M5X 1J5
416-947-5058
[email protected]
Nancy Swetnam
Arizona Supreme Court, Certification & Licensing Division
1501 West Washington, Suite 104
Phoenix, Arizona 85007
602-452-3362
[email protected]
Council on Licensure, Enforcement and Regulation
2007 Annual Conference
Atlanta, Georgia