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Protecting Vulnerable People

New requirements for all artists and organizations working with children, seniors and others - as of Fall 2011

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Introduction

Many artists and arts organizations have become familiar with the requirement from partner organizations, especially school boards, for police background checks for artists and others who work with children and youth. This is a good first step but it is no longer sufficient.

Understanding has changed about the nature of the potential risk; who exactly is at risk; and how best to prevent or reduce the chances of harm.

This is general information to artists and arts organizations about their evolving responsibility when delivering arts programs in their own premises as well as in educational and community settings. Requirements around what is now called “vulnerable sector screening” are not well established and therefore somewhat confusing. They may change from year to year in partner organizations and police services so arts organizations and artists must keep track of the changes.

Included here are the definition of vulnerable persons, a discussion about vulnerable sector screening and what it means, and an explanation of different types of police background reports. There is also some information about the Human Rights Code, privacy law, liability, and insurance as they relate to the screening of people who work with vulnerable persons. Finally, there are links to resources online for more detailed information.

All arts organizations receiving OAC operating support must establish their own vulnerable sector screening policy and practices in the future to protect participants in their arts programs.

Although most of this information applies to arts organizations, individual artists also need to understand these requirements whether they work independently in settings with vulnerable people or are engaged by arts organizations to work in schools and communities.

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What are the OAC’s New Requirements?

The “duty of care” that individuals and organizations have towards vulnerable persons is established in common law in Ontario and Canada. The OAC does not impose this responsibility; it already exists.

The OAC’s intention is to ensure that artists and arts organizations are aware of their responsibility and have appropriate policy and practice in place.

For OAC project programs


Beginning with fall 2011 program deadlines, individual artists, collectives and organizations applying to OAC project programs to deliver arts programs in educational or community settings will be required to obtain a police background check or vulnerable sector verification (whichever is required by your community partner) for every artist, staff member, or volunteer involved in the programming.

This requirement will be added to the Terms & Conditions of all OAC project programs other than creation programs.

For OAC operating programs


By the end of 2011-2012, organizations receiving OAC operating support must have developed a vulnerable sector screening policy and a set of procedures, including obtaining a police background check or vulnerable sector verification (whichever is required by your community partners) for every artist, staff member, or volunteer involved in programming in education and community settings.

These requirements will be added to the Terms & Conditions of all 2012-2013 OAC operating programs.



Who is Considered a Vulnerable Person?

Vulnerable members of society are defined in the Criminal Records Act as persons who, because of age, disability, or other circumstances, whether temporary or permanent are:

  • In a position of dependence on others or

  • Are otherwise at a greater risk than the general population of being harmed by a person in a position of authority or trust relative to them.

This includes children, youth, senior citizens, people with physical, developmental, social, emotional, or other disabilities, as well as people who are victims of crime or harm. The vulnerability may be a temporary condition or permanent.

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What is Vulnerable Sector Screening?

A Confusing Phrase

Vulnerable sector screening is a confusing phrase as it can refer to two different processes.

It is a new term for a broader, more comprehensive approach to risk reduction taken by organizations in the social service, recreation, health care, and education sectors. In this sense of the phrase, it is the internal human resource process of an organization to screen workers and volunteers to determine their suitability for working with vulnerable persons.

The same term (or the term “vulnerable sector verification”) is used by the RCMP and local police departments to describe reports that go beyond a person’s criminal record to include other information, and may involve fingerprint identification.

Vulnerable Sector Screening as Human Resource Program

A vulnerable sector screening program within an organization is an internal process, outlined in a human resource policy, designed to identify a person (whether a paid worker or a volunteer) who is not suitable to work with vulnerable persons or who may harm or mistreat them. This program will often include a police background check or vulnerable sector verification, renewed on a regular basis, but should also include other elements.

If you have a formal recruitment process, conduct personal interviews before hiring, and always check references for the artists, staff, and volunteers who deliver your programs for schools and communities, then your organization already has some of the elements of a screening program in place.

Other steps could include an orientation or training program to alert your workers and volunteers to the special challenges of working with vulnerable groups and your organization’s expectations for ethical behaviour; a written policy which describes your organization’s expectations for those working with vulnerable groups; and a regular system of getting feedback from vulnerable program participants in order to learn of problems as soon as they occur.

By formalizing the steps you already take, and adding a few others, you can reduce the likelihood that an unsuitable person is recruited by your organization and does harm to your vulnerable sector program participants.

Organizations beginning a vulnerable sector screening program are advised to require existing workers and volunteers to go through the same process as new recruits, including police background checks or vulnerable sector verification. This sends a clear message throughout the organization about expectations and standards.
The Volunteer Canada website provides a good starting place for Vulnerable Sector Screening policy and practice. While its focus is screening volunteers in the social service, recreation, and health sectors, this information can be adapted by the arts sector for its professional artists, staff, and volunteers.

Different Types of Risk

Police background checks, as part of an overall vulnerable sector screening program, are commonly understood as a way of screening out sexual predators. Sexual abuse is not the only risk to vulnerable people. For example, a history of theft, fraud, or embezzlement may be relevant if the arts program provides the opportunity for an individual to ingratiate himself or herself over time with a vulnerable group for the purpose of fraud or extortion.

Identifying and Managing Risk

As resources are limited, an organization should determine the level of risk to program participants and design an appropriate screening process for each level:
  • Low risk: minimal or no contact with vulnerable persons
  • Medium risk: supervised contact with vulnerable persons
  • High risk: unsupervised contact with vulnerable persons

An organization could set a policy, for example, that police background checks are required depending on the duration and frequency of contact with vulnerable persons and exempt workers and volunteers who are in the low risk category.

Similarly, an organization could decide that those workers or volunteers who are continuously engaged with the organization do not have to renew their police background checks unless there are significant gaps in service (perhaps a 12-month period) or unless their partner organizations require it. Instead, for the sake of efficiency, these people could sign an annual declaration affirming that they have not been charged with any criminal offense since their police background check.

Arts organizations must understand the expectations of their partner organizations, whether schools or community organizations, and design screening programs to meet the requirements of the partner organizations.

Ensembles that enter the school or community organization as a group to give a performance under the supervision of teachers or the staff of the community organization are sometimes excused from the requirement of having a police background check for each individual in the group. Those artists within a larger group who provide workshops or directly engage with students are expected to have police background checks. There is an expectation that ensembles and individuals working closely with vulnerable persons, even under a teacher’s supervision or the supervision of the community organization, have been screened by the arts organization which engages them.

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Three Types of Police Report

Police Background Check

This is a name-based report prepared by a police service at the request of an individual or an organization, with the written consent of the subject who is required to produce two pieces of photo identification. This report is generally part of the requirement for workers and volunteers whose activities bring them into contact with vulnerable persons. It can also be used to screen for other types of jobs unrelated to vulnerable persons.

Terminology is confusing here. Police background checks are also sometimes called criminal record checks, police reference checks, police record checks, criminal reference checks, or criminal background checks.

The report issued by the police service, after checking the national police database, may be called a clearance letter. Practice may differ in different municipalities. Whatever it is called, the search of the police database is based on name rather than fingerprints.

As practice varies in different jurisdictions, no matter which of the above terms is used, it is possible that the police report may cover more than a person’s criminal record, including such information as: complaints made by or about an individual, information about an individual’s mental health, information about pending charges and charges that resulted in acquittal or other non-conviction disposition, any prohibitions to do with firearms or driving, or allegations of child or spousal abuse.

Local police agencies use the national database of the Royal Canadian Mounted Police which is called the Canadian Police Information Centre (CPIC) for police background checks.

Certified Criminal Record Check

This is a police report based on fingerprint identification. This kind of report is required for such things as adoptions; some foreign visas and travel documents; some jobs with government, private industry and the police; immigration applications; and citizenship applications. It is also sometimes used as the second stage of the Vulnerable Sector Verification for workers and volunteers whose activity brings them into contact with vulnerable persons.

Vulnerable Sector Verification

This is a report prepared by a police service that, in addition to the information that is gathered for the police background check, determines the possible existence of a criminal record and/or sexual offence conviction for which an individual has received a pardon.

It is a report that begins with name-based identification but may also require fingerprint identification.

A Vulnerable Sector Verification is conducted solely for the purpose of screening workers and volunteers whose activity brings them into contact with vulnerable persons. Before proceeding, the police service must verify that the job or position is related to vulnerable persons.

There are two situations when fingerprints may be required as part of a Vulnerable Sector Verification. First, if the name-based search indicates that an individual has a criminal record, the individual must submit fingerprints to verify identity.

Second, if the CPIC database flags a match from pardoned criminal and pardoned sexual offender records based on the gender and date of birth of the applicant, the individual must submit fingerprints to verify identity. This is to avoid a situation where a person obtains a legal name change and this change is not reported to the RCMP for updating the criminal record information. That could mean that an organization is unable to link someone to a pardoned criminal record or pardoned sexual offense that may be relevant to suitability for working with vulnerable persons.

Organizations in the social services, health, education, and recreation sectors may now require this level of record check to be sure that pardoned offenders are identified before they have a chance to connect with vulnerable persons. Arts organizations should be aware that their partners in education and community organizations may begin to ask for Vulnerable Sector Verifications instead of police background checks.

Although this sounds onerous, arts organizations should keep in mind that in nearly all cases, a match will not be found and no fingerprints will be required.



How to get a Police Background Check

The kind of police report you need depends on the policy of your partner school or community organization. Some organizations are satisfied with a police background check; others now require a Vulnerable Sector Verification.

There are three options to obtain a police report:

  1. Local Police Service: Artists and arts organizations generally request these reports through the police service in the municipality where they are based. The local police service uses the national database of the RCMP as well as its own database. There can be variations in practice from place to place. For example, the Toronto Police Service will only do Vulnerable Sector Verifications for organizations that are registered with them for this service and who take the responsibility to ensure that the applications are filled out properly; it does not do vulnerable sector verifications for individuals.
  2. Royal Canadian Mounted Police: Artists and arts organizations can apply directly to the RCMP in Ottawa for police background checks, certified criminal record checks, or vulnerable sector verifications.

    Independent artists whose local police services do not offer Vulnerable Sector Verification for individuals, for example, and whose engagers require it, may have to apply directly to the RCMP.

  3. Ontario Education Services Corporation (OESC): Artists and arts organizations who work regularly in the school system have used the service of this non-profit organization to obtain police background checks and plastic-coated ID cards which were recognized by the Ontario school system and by some community organizations. Because of changes in the RCMP requirements to reduce the chance for pardoned sex offenders to avoid being linked to their records, OESC is for the present offering a service with some limitations. Check the OESC website for details and updates.

    Some independent artists whose engagers require a Vulnerable Sector Verification may be able to apply through OESC rather than go directly to the RCMP.

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More Information about Police Background Checks

An arts organization should not request a police background check or a vulnerable sector verification until it has decided that the person is otherwise suitable for the position (whether paid or volunteer) and has made an offer of engagement, conditional on a satisfactory police check. The police background check should be limited to information that is relevant to suitability for the position or work in question. The information about the individual is subject to Canada’s privacy laws and the organization must use it appropriately and keep it confidential.

The police will not conduct a background check unless an individual applies on his or her own behalf or has provided consent in writing to the arts organization making the background check. If the latter, the arts organization is responsible for checking at least two pieces of photo identification.

The police will generally provide the report to the subject first, letting the person decide whether to proceed or not. The person may ask the police to clarify, revise, suppress, or remove information in the record; or he or she may choose to discuss with the arts organization the information in the report that may be of concern to it.

Police background checks cost between $15 and $60. Often the individual is required to pay the fee. Some organizations pay the fee on behalf of applicants they are screening. Some organizations make an arrangement with their local police agency to screen volunteers at no charge.

It can take two weeks to ten weeks, depending on the jurisdiction, to get a police background check or vulnerable sector verification. If finger-print verification is required, it can take up to 120 days.



The Limitations of Police Background Checks

Police background checks and vulnerable sector verifications have an important but limited use. Some abusers and offenders have records in other countries that are not captured in the CPIC database. There are sometimes gaps in Canadian police records if a conviction has not yet been registered. If the person was pardoned or convicted under the Youth Criminal Justice Act, information will not be available.

In any case, many abusers and sex offenders have never been convicted of a crime. As some incidents of inappropriate or harmful behaviour never reach the attention of the police, other ways must be in place to detect them.

For this reason, arts organizations are advised to have a broader vulnerable sector screening program within their organizations as part of their human resource policy and practice.



Human Rights Code

While organizations have a responsibility to screen workers and volunteers who work with vulnerable persons, they must also abide by the Human Rights Code which requires that police background checks should only be requested when it is reasonable because of the job or volunteer position and they should restrict their scope to relevant issues. An individual’s consent is required prior to doing a police background check.

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Privacy Law

Arts organizations are subject to Canada’s privacy law (the Personal Information Protection and Electronic Documents Act or PIPEDA) that requires organizations to use or disclose personal information reasonably and appropriately and take appropriate measures to hold that information secure. Information from police background checks or vulnerable sector verification falls into this category.



Liability

Individual artists, workers, and volunteers can be found liable and required to pay damages if they harm someone while doing their work. Non-profit and charitable organizations may be held accountable by the courts for the actions of their workers or volunteers and the harm to their vulnerable program participants.
Even if an incident does not reach the courts, it could cause turmoil and confusion within an organization. It could also damage the reputation of the individuals and organization if the matter becomes public. The Board of Directors is responsible, with input from staff, for ensuring that organizational policies are established around screening. Staff is responsible for designing appropriate screening processes, applying them consistently, and taking action to remove individuals who are not suited to work with vulnerable persons.



Insurance

Artists and arts organizations cannot count on insurance to provide a safety net and resolve problems. In some cases, coverage may be dependent on an organization’s screening policies and procedures. If an organization has been negligent, the insurance company may not provide coverage. In any case, insurance can only provide a partial remedy after the harm is committed. It should be the priority to protect vulnerable persons in the first place, not to compensate them after the harm is done.

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Next Steps for Artists

  • Obtain your own police background check or vulnerable sector verification on a regular basis and provide it to your engagers when asked.
  • Authorize police background checks for jobs or positions at arts organizations, if warranted.
  • Provide personal references from other organizations where you have worked successfully with vulnerable persons.
  • Participate in training and orientation related to working with vulnerable persons, if it is available.
  • Check the Ontario Education Services Corporation website for updates on their police background check service if working regularly in the Ontario school system.
  • Allow sufficient time for police background check process. It can take several weeks in many cities and up to 10 weeks in Toronto.



Next steps for Arts Organizations

  • Seek information.
  • Understand the screening expectations of the organizations to which you send artists, other workers, or volunteers for programs or services.
  • Establish policy and procedures for Vulnerable Sector Screening.
  • Make sure the policy and procedures are understood and applied by your workers and volunteers.
  • emember that police background checks have to be renewed on a regular basis, at intervals determined by the arts organization or as required by its school and community partners.

Links for further information

This information has been drawn from some of the sources below. Each of these links has more information. For advice on specific situations, artists and arts organizations will need to consult their lawyer, police service, or insurance company.

  • Imagine Canada  has a Risk Management section on its website with resources about screening and background checks. It refers to the Volunteer Canada website but also has some other links.
  • Volunteer Canada  has a section on its website with resources about screening. It provides information about the law, outlines a 10-step screening program, and provides information about screening workshops and workbooks. While it focuses on volunteers, the principles can be applied to paid workers as well.
  • The Toronto Police Service  has a section on its Police Reference Check program and vulnerable sector screening. Artists and organizations in other jurisdictions must check with their local police service as detail and process may differ from place to place. All local police services use the national database called the Canadian Police Information Centre (CPIC) that is maintained by the RCMP.
  • The Royal Canadian Mounted Police  has information about Vulnerable Sector Verifications. The CPIC database is used by local police services to prepare police background checks or vulnerable sector screenings.
  • Ontario Education Services Corporation  is a non-profit organization that provides an Ontario-wide police reference service and issues a plastic-coated identification card that is recognized by schools throughout Ontario. Its services are limited at present by new requirements from the RCMP. Check its website for details and updates to know whether it is a viable option for you or your organization.
  • The Information and Privacy Commissioner  of Ontario has published some material on the privacy issues surrounding police background checks including this article called What is involved if you are asked to provide a Police Background Check?
  • Public Safety Canada  provides some resources including this article called Best Practice Guidelines for Screening Volunteers. The principles can be applied to paid workers and volunteers.
  • The Ministry of Citizenship and Immigration’s publication, An Overview of Provincially Mandated Police Records Checks: A Resource for Ontario’s Not-for-Profit Sector, provides details about legislation and regulations that govern police records checks in Ontario.

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