By Dan Wilband
Last month, The Coast published a piece exploring the widespread use of criminal record checks in hiring practices, both in Nova Scotia and elsewhere. It documents the challenges faced by individuals with criminal convictions in their past, as they seek to move on with their lives and find employment.
In some cases, police background checks may disclose even “non-conviction information”. This can include broad information on 911 calls, unproven allegations, and perceived association with others suspected of crime. Often people are unaware they even have such police records until they are required to provide background checks to prospective employers. The consequences of releasing this information can be devastating.
In 2014, the Canadian Civil Liberties Association released a detailed report on the issue. It argued the presumption of innocence is being undermined by a patchwork of guidelines across police forces in Canada, and by the absence of a legal framework governing exactly what information is released in criminal background checks.
What is the law on criminal background checks in Nova Scotia?
In Nova Scotia, no express provincial guidelines exist on what information can be disclosed through a record check.
Currently, the Halifax Regional Police, which processes about 1000 checks a month, provides only two levels of checks—a “criminal record check” and a “vulnerable sector check”. (A “criminal record check” can show both convictions and pending charges, though not what those charges are for. A vulnerable sector check is a special type of check often required for individuals in a position of trust or authority over children, the elderly, the disabled, or another vulnerable group.)
Nova Scotia’s human rights laws do not prohibit discrimination on the basis of a criminal record. Canada’s Human Rights Act, however, which applies to federal employees, does prohibit discrimination where a record suspension (formerly known as a “pardon”) has been ordered.
Indirect forms of discrimination can also arise from record checks.
For example, information disclosed in a record check may be intertwined with an individual’s mental health history. Caution must be taken in dealing with that information, as discrimination on the basis of disability is prohibited. It is also widely recognized that Black and Indigenous populations are disproportionately represented in the Canadian justice system. Overbroad employment barriers arising from record checks may result in further systemic discrimination against these and other protected groups.
Under Nova Scotia’s privacy legislation, “personal information” includes information about an individual’s criminal history. This law applies only to public bodies, and it prohibits such bodies from collecting personal information unless “that information relates directly to and is necessary for an operating program or activity of the public body”. Therefore, public employers should be prepared to articulate how any information requested in a background check is both directly related to and necessary for their operations.
So what are the rights of employers and employees?
If done properly, employers are permitted to require a criminal background check. They may also ask an applicant whether they have been charged with or convicted of a criminal offence. Employees must answer honestly. If an employee is asked about his/her criminal record, they should consider the question carefully, and only answer the specific question being asked.
Nevertheless, both individual employment contracts and collective agreements may restrict employers from imposing a record check policy. An employer may not be able to impose checks on current employees without renegotiating the contract or collective agreement.
Arbitrators and courts have found that overbroad background screening programs, or blanket policies imposing unnecessary record checks on employees who are not in safety-sensitive positions, are unreasonable.
Assessing whether an employer’s record check policy is reasonable can include factors such as:
- whether the check is relevant to the specific position,
- whether the employer has privacy protections in place for employee personal information,
- how much notice is given to affected employees,
- how the information is used in the employment context,
- whether employees who are not cleared have access to an appeal mechanism, and
- whether the policy complies with applicable privacy and human rights legislation.
Employers and affected employees should carefully consider these issues. They should consult a lawyer if they have any uncertainty on this subject.
 Freedom of Information and Protection of Privacy Act, s. 3(1)(i)(vii).
 Ibid., s. 24(1)