Criminal Background Checks and Offense Declarations

Introduction

Regulation 521/01 Collection of Personal Information, is now a legal requirement. The regulation requires school boards to collect criminal background checks on most existing and new employees and service providers who regularly come into direct contact with students. The regulation also requires school boards to collect an annual Offence Declaration from all employees and service providers.

Convictions Under the Criminal Code of Canada

District school boards are beginning to receive the names of existing employees who have been convicted of criminal offences, specifically a conviction or convictions under the Criminal Code of Canada, for which a pardon has not been granted.

School boards are obligated to investigate any accurate report of a criminal conviction. Under the guidelines established by the Ontario Public School Boards’ Association (OPSBA) and the Ontario Education Services Corporation (OESC) the board is required to investigate to determine whether or not the conviction itself meets a certain threshold test.

School boards will be contacting members to request that they attend an interview and, in some cases, provide a letter of explanation regarding the conviction.

Although you may have a criminal code conviction, this does not necessarily mean that your employment is in jeopardy, or that a report will be made to the Ontario College of Teachers. The board must gather sufficient information to make an informed decision. When all of the information is received, the board contact will determine whether risk exists based on the test of whether in all of the circumstances, on a balance of probabilities, the continued employment represents a continuing risk to the well- being of any of the board’s students or staff.

Boards which are not subject to the OPSBA process may develop different standards or approaches. However, it is ETFO’s view that OPSBA’s approach will have significant sway with arbitrators.

Know Your Rights

As a member of ETFO you have the right to:

• Representation by a federation representatives;
• Adequate notice and time to prepare for an interview;
• Confidentiality of the investigation process;
• Advance notice as to how the board intends to proceed; and
• A full opportunity to present the relevant information.

ETFO will assist in preparing individual members for any interview schedule. If an interview is scheduled at a time when a federation representative is unavailable, an adjournment should be requested.

Questions and Answers

Q.  What is the difference between a Criminal Background Check and an Offence Declaration?

A.   A Criminal Background Check contains an employee’s personal criminal history and is prepared by police using national data from the Canadian Police Information Centre (CPIC). Only one criminal background check is required for all existing teachers in the employ of the board. (Some exceptions apply – see questions #2 and #3).  New teachers may be subject to more stringent background checks than required by the regulation depending upon the particular board’s policy.

An Offence Declaration is a form completed by the individual teacher that lists any Criminal Code convictions for which a pardon has not been granted since the last criminal background check collected by the board or the College of Teachers.

Q.  Why does the regulation require teachers who became members of the Ontario College of Teachers after to provide an Offence Declaration?

A.   The Ontario College of Teachers began to collect criminal background checks from all applicants to the College as of January 1, 1999. The Regulation required this group of teachers to submit an offence declaration annually, beginning September 1, 2002. The board will not collect a new criminal background check from these teachers.
 

Q.  What if I transferred to a different school after – will I be required to submit an Offence Declaration?

A.   According to the regulation, all board employees, who transfer to a different school, are required to complete an Offence Declaration prior to the transfer to the new school board.

Q.   What is considered a Criminal Code conviction?

A.  Any offence under the Criminal Code of Canada for which you have been convicted and for which a pardon has not been granted. If you have any question about what is a criminal code offence, contact the federation or your lawyer.

Q.   What is not considered a Criminal Code conviction?

A.  Members are not required to disclose any information regarding investigations, charges, peace bonds, convictions for which pardons have been granted, conditional or absolute discharges, or information related to convictions under legislation other than the Criminal Code of Canada. For example, convictions under the Highway Traffic Act, the Customs Act, the Drug and Narcotics Act or the Food and Substance Act are not included in the regulation and need not be reported. Members are also not required to disclose a conviction of a criminal offence outside of . Members do not have to divulge Criminal Code offences for which they were convicted as young offenders.  Newly hired employees may be subject to more stringent requirements depending upon the particular school board’s policy.
 

Q.   What are the consequences for making false statements on the Offence Declaration?

A.   Arbitrators will likely consider falsifying an Offence Declaration as grounds for discipline. Depending on the circumstances, doing so could result in termination.

Effective Dates of Offence Declarations and Criminal Background Checks

The following are the effective dates of offence declarations and criminal background checks:

• For teachers hired after March 31, 2002, a criminal background check is required prior to beginning work. An annual Offence Declaration is also required and must be collected by September 1 each year.
  
• For teachers certified by the Ontario College of Teachers after December 31, 1998  and before April 1, 2002, an Offence Declaration must be submitted annually by September 1.  These teachers were not required to provide a criminal background check since the has already collected one from them.
  
• For all other teachers, the criminal background check is required. The Offence Declaration must be collected annually by September 1.

Transfers

If an employee is transferred to a different school site, the board is required to collect an Offence Declaration before the transfer actually takes place.

ETFO takes the position that the transfer requirement does not apply if teachers are centrally assigned and sent to different school sites, or to occasional teachers upon a change of assignment. In addition, the obligation to provide the declaration does not arise until immediately before the actual transfer occurs.

If a long-term occasional teacher transfers to another long-term occasional assignment in another school, it is not clear whether or not they will be required to supply an Offence Declaration. It appears, however, that under the OPSBA protocol, long term occasional teachers will be treated the same as other occasional teachers and only be required to provide an Offence Declaration once.

Occasional Teachers and Members with Breaks in Service

It is recommended that the board collect a criminal background check on all occasional teachers once only. An annual Offence Declaration must be collected subsequently.

Pardons

If a member has a criminal conviction under the Criminal Code, that member may want to consider applying for a pardon, particularly if the conviction occurred some time ago.  

A pardon is recognition of good conduct. The granting of a pardon by the National Parole Board, under the Criminal Records Act, means that any federal agency or department that has records of convictions must keep those records separate and apart from other criminal records. The information will be removed from the Canadian Police Information Centre (CPIC) computer system.

Once a person has been pardoned, information about the conviction may not be given out without the approval of the Solicitor General of Canada. The pardon application process is lengthy. If a transfer to another site in the school board occurs prior to obtaining a pardon, it will be necessary to disclose the conviction on the Offence Declaration required by the Board.

Details of how to obtain a pardon are set out in the National Parole Board’s Pardon Application Guide available from the National Parole Board at  www.npb-cnlc.gc.ca/pardons/servic_e.htm or at 1-800-874-2652.

Members are advised to consult Professional Relations staff in Protective Services at 416-962-3836 or 1-888-838-3836 for additional advice.