Note: The rules and law may have changed since this article was first published. It is provided for archival purposes but you should consult with your lawyer for the current state of the law
Nearly anyone convicted of a criminal offence can apply for a pardon under the Criminal Records Act. Alternatively, persons receiving an absolute or conditional discharge may have their records sealed by the passage of time. The criminal record may not be disclosed, nor may the existence of the record be disclosed. The existence of a pardon, however, does not entitle an individual to deny that he or she was found guilty of an offence.
Employers often ask employment candidates whether they have a criminal record. Some employers take a further step, and ask whether the candidate has received a pardon for an offence. Can an employer not hire a candidate on the basis of a previous pardon? The majority of the Supreme Court of Canada has answered this question in the negative in the decision Montreal (City) v. Quebec (Commission des droit de la personne et des droits de la jeunesse).
In the case, the individual was arrested for shoplifting when she was 21. After pleading guilty to theft charges, she received a conditional discharge. A few years later, she applied for employment as a police officer with the City of Montreal. The bylaws for hiring state that the candidates must have “good moral character”. The individual was not hired. When she asked why her application was rejected, she was told she did not satisfy the criterion of “good moral character” because of her prior charges.
The applicant complained under the Quebec human rights legislation, alleging that the employer’s refusal to hire constituted discrimination based on a conviction of a criminal offence if the person has obtained a pardon.
The employer argued that the requirement for employment was “good moral character”. The reason she was not hired was not because of her criminal record, but that she lacked good moral character. It is noteworthy that the employer did no further investigation into the character of the applicant.
The Human Rights Tribunal found that there had been a violation of the human rights legislation and ordered damages. This decision was appealed by the employer, and eventually made its way to the Supreme Court of Canada.
The majority of the Supreme Court found that while an employer could consider the facts resulting in a finding of guilt in assessing the candidate’s qualifications for the job, the inquiry must be broader than simply the finding of guilt.
This was a Quebec case, of course. What about the rest of Canada? The Canadian Human Rights Act prohibits discrimination based on a pardoned criminal conviction, but it does not apply to everything. The Canadian Human Rights tribunal has jurisdiction over matters within the legislative authority of Parliament of Canada, federal government department and agencies, Crown corporations, banks, airlines and other federally regulated employers and service providers.
There are similar provisions in some provincial and territorial human rights legislation. In jurisdictions where there is legislated protection from discrimination based on a pardoned criminal conviction, provisions allow the employer to consider a criminal conviction if the employer can establish that it is a bona fide occupational requirement for an employee not to have a criminal record. The onus is on the employer to establish that:
• The standard was adopted for a purpose rationally connected to the performance of the job;
• The standard was adopted in an honest belief that it was necessary to fulfill a legitimate work related purpose; and
• The standard is reasonably necessary to accomplish the legitimate work related purpose.
In the Saskatchewan Human Rights Code, however, the existence of a pardon for a criminal conviction is not included as a prohibited ground. While Saskatchewan employers should be aware of this Supreme Court decision, the application of this decision would currently only apply to employers who fall under the Canadian Human Rights Act. It is still good practice for employers who establish hiring criteria akin to “good moral character” to review their standards and determine whether they are indeed bona fide occupational requirements. If so, when an employer learns a candidate for employment has been pardoned for an offence, the decision of whether that person has met the criteria for the job cannot simply be based on the fact there was a prior criminal conviction. The inquiry should be taken a step further, to avoid running afoul of the Supreme Court’s guidelines.