Tories attack Liberals for clearing former sex offenders to work with children, elderly

The Conservative Opposition is accusing the Liberals of risking public safety by clearing former sex offenders to work with Canada's most vulnerable — but the government argues it had to change the vulnerable sector check program after discovering officials "improperly" applied the law before 2016.

A record suspension, otherwise known as a pardon, offers offenders the kind of clean slate that makes it easier to rent an apartment or apply for a job. But suspensions don't delete past offences from the records. They just set them aside so that, for most purposes, they're confidential.

Anyone who applies for a job in what the federal government considers a "vulnerable" sector — for example, nursing homes, daycares, taxi services or any service working with people with disabilities — is required to apply for a special background check, which combines a regular police check with a scan for suspended sexual offences.

If a suspended offence record pops up in the course of that check, the police force that did the check won't know what's in it. It will notify the federal Department of Public Safety; the minister will then decide if the offence is relevant enough to the job to warrant disclosure. If the minister opts to disclose, a copy of the suspended record is returned to the applicant and the police service that oversaw the request. If it's denied, the background check is returned as having found "no record."

The Criminal Records Act includes entrenched criteria for the minister to follow when making that decision, such as considering whether the suspended offence involved violence, children or a breach of trust.

Under the previous Conservative government, almost all vulnerable sector checks — 95 per cent — were disclosed to police and applicants. That number dropped to 38 per cent under the Liberals. Between 2011 and 2016, Public Safety received 695 vulnerable sector check applications from 520 individuals.

"In 2016, it came to the attention of officials that the criteria for disclosure or non-disclosure set out in the Criminal Records Act and the Criminal Records Regulations were being improperly applied," said Scott Bardsley, spokesperson for Public Safety Minister Ralph Goodale, responding to CBC's questions.

The department sought legal advice and "necessary adjustments were made to how the act and regulations are applied, and that approach continues to be used today," he added.

'There are consequences to our past'

A department official said not all sexual offences should be treated the same.

"As sexual offences can range from minor acts of gross indecency to more serious cases involving violence, and the time an applicant has remained crime-free can vary from three years to over 20 years, it was considered prudent to review the assessment that informed the exercise of discretion in deciding requests," said spokesperson Karine Martel.

But the Conservatives say the government is playing with fire.

"The fact that this current Liberal government is choosing to go down a path that has the potential to create risk for vulnerable people is cause for great concern," said Medicine Hat–Cardston–Warner MP Glen Motz, deputy public safety critic.

"Criminal record suspensions should be considered a privilege, not a right," said Motz.

"There are consequences to our past and to the mistakes we've made in our past. And grateful people apply and want to move on with their lives and be productive members of society, but sometimes those actions prevent us from being involved in things that potentially might put something else at risk."

How the government decides

A newly-obtained document reveals how the Liberal government decides if a former sexual offender can be cleared to work with children and the elderly.

Research compiled by Public Safety between October 2017 and March of this year, and obtained under access to information laws, walks decision-makers through the different factors they must weigh when considering a disclosure request.

For example, researchers said it's "not relevant" to disclose a suspended sex offence if the applicant has applied to work with the elderly and their past offence involved children.

"Due to their sexual preference pertaining to children, it is highly unlikely that they will offend against the elderly," says the document.

Of course, the document says that if the desired position involves working with children, disclosure is "highly relevant."

The research also says it's relevant to disclose if an applicant is a police officer guilty of a driving, breach of trust or violence-related offence, or if an adoptive parent has been involved in a sexual offence.

The research also asks the minister to consider the applicant's age, time out of custody and sentence length.

"Visible minorities, particularly Indigenous offenders, are more likely to receive more serious sentences," says the research.

"The purpose of these criteria is to ensure that the records of those who pose a risk are appropriately disclosed, while also ensuring that rehabilitated former offenders leading law-abiding lives are not unduly prevented from contributing to their communities," said Bardsley.

Most applicants are men

The research document also paints a portrait of the people applying for vulnerable sector checks.

The overwhelming majority of applicants with sexual offences on their records were men. About 58 per cent of their victims were adults, while 17.5 per cent were children. In 24 per cent of the cases, the victims' ages were unknown.

Applicants' median age at time of conviction was 30, and 55 at the time of the disclosure decision.

Catherine Latimer, executive director of the John Howard Society, said the vulnerable sector check program evokes a strong "emotional" reaction from Canadians, which is why evidence-based decisions are more important than ever. Her group has been pushing for reforms to Canada's criminal justice system.

"Our view is everyone is capable of change," she said.

As CBC previously reported, the RCMP has taken issue with changes the Liberal government made to criminal background checks and the pardons system, pointing to cases of people with "disturbing" records applying to work with vulnerable individuals.

Public Safety says people who are granted a record suspension aren't tracked to see if they re-offend.

"That being said, the department has not been made aware of any case in which someone with a non-disclosed vulnerable sector check went on to reoffend," said Bardsley.