Employees with a criminal past may be subject to discrimination
By Hermie Abraham
The presumption of innocence for persons accused of a criminal offence is one of the hallmarks of the Canadian judicial system. When it comes to employment, however, the only Canadian province that protects against discrimination for job applicants and employees who have been accused or convicted of a criminal offence where there has not been a pardon is British Columbia.
In July of this year, the B.C. privacy commissioner released the findings of an investigation into employment-related record checks. The investigation focused on the B.C. government, the province’s largest employer, and found that roughly 85 per cent of the government’s 33,500 employees were required to submit to a criminal record check. These findings were viewed as alarming because in B.C., people who have been charged and/or convicted with a criminal offence are entitled to protection from discrimination in employment where the offence is unrelated to the job or position sought.
This is not so in Ontario. Ontario’s Human Rights Code (the “Code”) is clear that only those individuals who have been convicted and pardoned are protected from discrimination in employment. Section 5(1) of the Code states:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
Further, ‘record of offences’ is defined as a conviction for:
(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or
(b) an offence in respect of any provincial enactment
Under the Criminal Records Act, a convicted person may apply for a pardon five years after the completion of a sentence for an indictable offence and/or three years if it was a summary conviction. Generally, once the pardon has been granted, the pardoned criminal record is to be kept separate from other criminal records and cannot be disclosed.
Because of the Code’s requirement for both a conviction and pardon in Ontario, it is conceivable for an Ontario employer to ask a job applicant whether she or he has been charged or convicted of an offence in which he/she has not received a pardon. The candidate may also be asked to submit to a criminal records check. If the candidate has been charged or convicted of an unpardoned offence, then he/she is not protected under the Code and may be subject to discrimination based on the criminal record.
If the candidate’s conviction has been pardoned, then he/she is protected by the Code and the pardoned criminal record cannot be material to the employer’s hiring decision unless the employer can show that the pardoned offence is related to the position or that it is related to a reasonable and bona fide job qualification (e.g. a convicted sexual offender with a pardon who applies to work with children or vulnerable persons). The Human Rights Tribunal has confirmed this interpretation to the scope of ‘record of offences’ (see Arnott v. Vari-Form Corporation, 2012 HRTO 446 (CanLII); McKenzie v. Ontario (Government Services) 2010 HRTO 238 (CanLII); and de Pelham v. Mytrak Health Systems, 2009 HRTO 172 (CanLII)).
While Ontario can be seen as lagging behind B.C. in providing protection to individuals charged and convicted with criminal offences, Ontario is more progressive than Alberta, Manitoba, New Brunswick, Nova Scotia and Saskatchewan which provide absolutely no protection against discrimination of individuals convicted or charged with a criminal offence.