A. INTRODUCTION
While every organization hopes it will never have to
encounter any incidents of child abuse occurring through one of its programs, a
number of tragic, high-profile incidents of child abuse that were committed at
various charitable and not-for-profit organizations, as well as developing case
law, have made child protection issues now a primary concern. As a result, all
organizations that carry out programs involving children should implement a
child protection policy which includes a requirement for police checks.
This Charity Law Bulletin will provide a general
discussion on the issue of police checks, with a focus on the programs in place
in the Greater Toronto Area.
B. SCREENING VOLUNTEERS
At an initial level, police checks can help to screen
those individuals who may not be well suited to work with children by identifying
individuals with criminal records involving past abuses or violent crimes. However,
police checks alone are insufficient for screening potential volunteers and/or
employees for a number of reasons. Firstly, information obtained through a police
check may not necessarily reflect the most current information or may include
clerical errors and omissions. In addition, not all perpetrators of child abuse
have a past criminal record, as a number of incidents of child abuse have
involved first-time abusers. Nevertheless, police checks are one important step
as part of a more comprehensive screening procedure for volunteers and
employees who wish to work with children.
While there is no statutory legal requirement to carry out
police checks on employees and volunteers working with vulnerable persons in
Ontario, police checks are becoming the industry standard among organizations
that work with children, as they are often required by insurance companies
before an organization can qualify for abuse coverage. Police checks are viewed
as an important due diligence step in screening out applicants with criminal
convictions involving violence or abuse to protect children from harm and the
organization from liability.
There are generally two main types of police checks that may
be obtained for charities and not-for-profits: “Police Information Checks” and
“Police Vulnerable Sector Checks”. Organizations that work with vulnerable
persons (e.g. children) may be eligible to obtain more detailed Police
Vulnerable Checks, subject to the requirements in the organization’s particular
jurisdiction, as described later in this Bulletin. Although the terminology
used to describe the police checks and the procedures to be followed to obtain
the checks can be different between municipal police services, the LEARN
Guideline for Police Record Checks, created by the Ontario Association of Chiefs of Police, was developed in order
to standardize the procedure in obtaining police checks across Ontario. The
Guideline assists provincial and municipal police services in applying relevant
legislation, policies, directives and procedures when processing police checks,
and also promotes consistency in the processing of police checks throughout the
province (i.e. in the terminology and methodology used). While the Guideline
was released in 2011, it has yet to be fully implemented by the various
municipal police services.
Once obtained, police checks should be updated regularly
in accordance with the provisions of the organization’s Vulnerable Persons or
Child Protection Policy. While the RCMP recommends that police checks be
updated yearly, this may not be practical for charities and not-for-profits
that have numerous volunteers and employees that work with children. While many
insurance companies recommend that police checks be updated every 3-5 years,
this may not be frequent enough to catch any new convictions of abuse that
occur while a person is volunteering or working with an organization. As such,
a practical guideline would be to update the police checks every 2-3 years. Charities
and not-for-profits should remember that criminal records involve a highly
sensitive and personal issue and therefore appropriate procedures should be
established to protect the privacy and dignity of each employee and volunteer. Unfortunately
there is no option to order a cheaper or faster “update” of an earlier police
check, as each police check involves reviewing and verifying all of the
relevant databases to confirm there are no criminal records for a given
applicant. As such, the process for updating a police check simply involves
ordering a new one current as of the date it is issued.
C. POLICE CHECKS COMMONLY OBTAINED BY CHARITIES AND NOT-FOR-PROFIT ORGANIZATIONS
The more generic police check referred to as the Police
Information Check (PIC) is available for employees or volunteers of charities
and not-for-profits who are not working with children or other
vulnerable persons. PICs are used to determine the possible existence of a
criminal record and involve a search of the RCMP National Repository of
Criminal Records and the local police service’s records for indictable or
hybrid offences by an individual’s name and date-of-birth. Under a PIC, no
search is completed of pardoned sex offenders or mental health apprehensions. Where
a police service is unable to verify an individual’s criminal record
information based on name and date-of-birth, fingerprints will then also be
required. In such a case, a Certified Criminal Record Product is issued,
which includes a summary of an individual’s offence convictions and
non-convictions that are releasable in accordance with federal laws.
The more detailed police check is often referred to as the Police Vulnerable Sector Check (PVSC), although the terminology may
differ with each municipal police service. The PVSC consists of the more
detailed police search available for individuals who intend to work and/or
volunteer with vulnerable person(s), including teachers, social workers,
coaches, day-care workers, as well as paid employees or volunteers of
not-for-profit organizations working with children or other vulnerable persons.
The PVSC involves a search of
several databanks based on an individual’s name and date-of-birth, including:
– The RCMP National Repository of Criminal Records;
– The Canadian Police Information Centre (CPIC) Investigative Data Bank,
whose records include:
§ Law enforcement investigation records
§ Accused, court action, missing, parolee and wanted persons
reports
§ Information on stolen or lost property;
– The CPIC Intelligence Data Bank, which includes records entered by
agencies who gather criminal intelligence; and
– The local police records of where applicant resides.
If an individual’s name, gender and date-of-birth match
that of a pardoned sex offender, a fingerprint based search will also be needed
and a Certified Vulnerable Sector Product issued thereafter. The PVSC
report provides a summary of an individual’s offense convictions,
non-convictions and pardoned sexual offense convictions that are releasable in
accordance with federal laws. The report also includes information relating to Mental
Health Act incidents in which the individual has been involved.
While there are other types of police checks available
though the municipal police services, they are generally not suitable for
charities and not-for-profits that wish to screen potential volunteers and
employees who will work with children and other Vulnerable Persons.
D. POLICE VULNERABLE SECTOR CHECK PROGRAMS IN THE GREATER TORONTO AREA
1. Toronto Police Service (TPS)
In Toronto, all local community organizations must be
registered with the TPS before police checks will be carried out, and a
Memorandum of Understanding (MOU) must have been entered into between the
organization and TPS. At least one representative of the organization having
responsibility for hiring volunteers and employees must have training on the
Ontario Human Rights Code. In this regard, the applicant organization’s
management and human resources personnel must have an understanding of what
constitutes a bona fide occupational or volunteer requirement to seek
and receive information relating to Mental Health Act apprehensions. Individuals
may submit a request to the TPS to have any Mental Health Act information
relating to prior contact with the police suppressed.
TPS Records Management Services performs all police checks
and charges the organization for performing checks on employees and volunteers.
In order to obtain a police check on a given employee or volunteer candidate,
an organization must submit the request for a police check after the employee
or volunteer candidate has signed a consent to disclose. If fingerprints are
required, the application will be returned to the applicant, who then must
attend in person at an RCMP accredited fingerprint agency to have their
identity confirmed. Once their identity is confirmed the applicant must mail
the confirmation and the application back to TPS. The results of the police check
will be mailed directly back to the applicant who will then decide whether or
not to disclose the information to the organization.
2. York Regional Police
A Vulnerable Sector Screening (VSS) is available for
individuals working or volunteering with the vulnerable sector. In order for an
individual to receive a VSS, the not-for-profit must certify by letter that:
• The VSS is being used to determine the suitability of the applicant to
work and/or volunteer in the vulnerable sector;
• The VSS is the last step in the hiring process; and
• The not-for-profit understands its obligations under the Human Rights
Code.
Applicants can apply at either the Aurora or Richmond Hill
Police Stations. They must appear in person and provide two pieces of
Government Issued Identification (one must be a photo ID). Fees apply to both
volunteers and employees, and volunteers must bring a letter from the
organization with which they are applying to work. If fingerprints are needed,
they can be taken at the Aurora Police Station (for an extra cost). There is a
four to six week processing time and results are mailed back to the applicant.
3. Peel Regional Police (PRP)
The Region of Peel is currently undergoing changes to its
vulnerable sector check process. In the past, before volunteer applicants could
receive a vulnerable sector check, an organization was required to send the PRP
a letter requesting that it be added to the volunteer agency list (i.e. the
list of organizations that work with Vulnerable Persons). The PRP would then
respond with a letter confirming that the organization had been added to the
list and every volunteer applicant would bring a copy of this letter to the
police station when requesting a vulnerable sector check. The PRP, however, is
now in the process of auditing this system. As a result, at this time any
volunteer wishing to receive a vulnerable sector check must pay a $45 fee (or
$25 senior fee) in order to have the check conducted. However, those volunteer
agencies previously registered with PRP will continue to have their volunteer
applications processed as before. In order to request a vulnerable sector
search, volunteer and employee applicants must attend in person at PRP
Headquarters in Brampton with two pieces of valid government ID. There is a two
to four week processing time and results are mailed back to the applicant.
E. BRIEF COMMENTS ON OTHER PRACTICAL ISSUES RELATING TO CHILD PROTECTION
As mentioned earlier in this Bulletin, police checks are
an important step in screening employees and volunteers. However, organizations
working with children and other vulnerable persons are strongly recommended to
adopt a comprehensive child protection policy that outlines screening procedures,
reporting guidelines and other measures to help protect children from harm. Once
a child protection policy is adopted, it is imperative that the organization
designate a responsible person to ensure that the screening and abuse
prevention policies are actually followed.
The importance of this principle is underscored in a case
involving a church that was denied insurance coverage on the basis of a
material representation when incidents of abuse arose. The church in this case had
obtained insurance coverage for abuse claims after it had advised its insurer
that it had a child protection plan in place, which included a requirement for
police checks. Unfortunately, the individual in charge of doing the police checks
did not follow through in having the police checks completed. A few months
later a new youth leader was charged, and later pleaded no contest, to sexually
molesting three teenagers at the church’s youth group. If the church had
conducted the police checks on the youth leader in accordance with the
screening procedures outlined in its child protection policy, the church would
have discovered that the youth leader had a pre-existing sexual offence
conviction.
It is important to note that most liability insurance
policies exclude abuse related claims and therefore charities and not-for-profits
should not assume they are covered for abuse claims. If they are unsure,
organizations should contact their insurance broker or insurer to obtain
written confirmation of coverage.
Organizations should ensure they comply with their child
protection policy, and that the policy is followed in all aspects of the
operations, wherever they may be carried out. Many churches and religious
organizations carry out meetings at a member’s home on a weekly or bi-weekly
basis (i.e. cell groups, house churches), but do not adhere to the child
protection policies at programs held outside of the church facility. However, the
increased potential for incidents to occur at such meetings underscores the
importance of organizations complying with their child protection policy and
providing appropriate supervision at all activities.
Further information on child protection matters is available
on our website at www.charitylaw.ca:
– PowerPoint Presentation, entitled “Thoughts on Child
Protection Policies: How to Make Them Work for Your Not-for-Profit or
Charity”, dated June 7, 2010 - http://www.carters.ca/pub/seminar/charity/2010/eso0607.pdf
– Church Law Bulletin No. 23, entitled “Thoughts on Child
Protection Policies: How to Make Them Work for Your Church or Charity”, dated
November 27, 2008 - http://www.carters.ca/pub/bulletin/church/2008/chchlb23.pdf
Helpful resource materials regarding
child protection are also available on the Robertson Hall Insurance website: http://robertsonhall.com/church-insurance/resources/abuse_prevention.html.
