To VSS or not to VSS?
Employers who currently require applicants to submit to a Vulnerable Sector Search (VSS) as part of their background screening should consider the benefits of conducting Enhanced Criminal Records searches in their place.
More and more we are finding that the VSS search, which is in essence a search of the Pardoned Sex Offender Database held by held by the RCMP, is not meeting the expectations of employers. Many employers think the VSS search gives them access to all criminal records of a prospective applicant, but this is just not so.
The VSS search only returns the records of those individuals who have a pardoned or suspended record for a sexual offence. It will not tell you if they have been pardoned for any other offense. There are only 14,000 individuals currently in the Pardoned Sex Offender database. In 2012 the government legislated that anyone convicted of a sexual offense against a minor was no longer eligible for a pardoned or suspended record, so there has been little growth in the database, and, as it is not a database that is “maintained”, it includes the records of deceased individuals.
For individuals to be granted a Pardon or Suspended Record, the person first must be arrested/charged with a sexual offence, attend court and be found guilty, be convicted of the offense and a sentence must be handed down. The individual must then serve the entirety of their sentence, pay any fines, make any restitution and complete any probation etc. Once that has all been completed, then the clock starts on the mandatory wait period. They MUST wait 5 to 10 years before they can even apply for the Pardon or Suspended Record. Once they apply and obtain all the necessary paperwork and documents, they submit their application and, in most cases, it takes at least 18 months before an answer is provided. Based on the above, and information received from the Parole Board, it would be impossible for anyone under the age of 35 to be on the Pardoned or Suspended Sex Offender Registry.
When Police agencies conduct a Vulnerable Sector Search, they will see if there is a “hit” on the sex and date of birth, but they will not see any details. The applicant is then fingerprinted and a request is made to the Federal Ministry of Public Safety to review the information and determine if they feel the employer should be made aware of the match.
Interestingly, of the more than 2 million Vulnerable Sector Searches conducted annually in Canada, less than .005 percent result in a match – so 100.
In 2016 the government determined the Federal Ministry of Public Safety should “reinterpret” the regulations surrounding when a match is returned. Prior to 2016, 95% of all matches were returned to employers, but since that date, the percentage has fallen to less than 40%. The reinterpretation included direction to the Ministry that they should assess such things as whether or not the applicant committed the sexual offense against an adult or a child. If the offense was committed against an adult, they are likely to return no match for an applicant who will be working with children. As well, the Federal Ministry of Public Safety has been asked to review such things as how long ago the offense was committed, whether or not the applicant was a member of an ethnic group and the severity of the offense, amongst other criteria.
This means that 60 % of the people in the database with a suspended or pardoned record for a sexual offense are being returned to employers as CLEAR or “no record” when in actual fact they do have a record, but a Federal agency has determined that an employer should not be aware of it. This is a very false sense of security for hiring managers. The RCMP has publicly stated that they take “issue” with the reinterpretation of these regulations and point to cases of people with “disturbing” records who have been returned as CLEAR to work with the vulnerable of our society.
All of the above can take weeks to complete; by the time the applicant attends the police station to conduct the VSS, to be fingerprinted if appropriate, for the Federal Ministry to conduct a review and make a determination, and for the final document to be created and mailed to the employer.
An enhanced criminal records check, conducted with the applicant’s consent, requires no physical visit, is returned in less than 24 hours, and searches for and returns criminal convictions, including any sexual offenses for which a pardon has not been granted, pending charges, charges not resulting in convictions, warrants, prohibitions, probation orders and searches local police indices.
The takeaway here is that you should weigh the alternatives to VSS:
-If your applicants are under 35 years old they cannot be in the Pardoned Sex Offender database.
-The Ministry only returns a positive match in 38% of cases, withholding the records of 62% of the requests when the applicant does in fact hold a pardoned sex offense record.
-Only .005% of the VSS done in Canada result in a match.
An enhanced criminal records check is less expensive for employers, faster, more convenient, and searches far more records than a VSS search does. The most important factor is that the Enhanced Criminal Records search will reveal if your applicant has any pending charges, prohibitions or probations orders, which a VSS search will not show.