Montreal police erred in rejecting applicant: Court

Force refuses to hire woman arrested for shoplifting, despite fact she was pardoned
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 10/17/2008

The Supreme Court of Canada has ruled the Montreal police violated a woman’s rights when it used a past shoplifting incident for which she was pardoned as the basis for rejecting her application to be a police officer.

In 1991, the woman was charged with shoplifting and conditionally discharged. According to Quebec law, she was entitled to a pardon after the passage of a certain period of time. The law was designed to differentiate those who receive a discharge from those who are convicted and sentenced under the Criminal Code.

In 1995, the woman applied to be a police officer in Montreal. However, because of her past charge, her application was rejected on the grounds she did not meet the Montreal police’s strict hiring standards that required “good moral character.” She told them she had been pardoned but the decision stood.

The woman filed a human rights complaint, saying the police violated the Quebec Charter of Human Rights and Freedoms by refusing to hire her solely because she had been found guilty of a criminal offence in the past.

The police argued the misconduct itself, not the charge, brought her moral character into question. They also argued an automatic pardon was not a normal pardon and someone providing a police service did not meet the definition of “normal employment” under the charter.

A human rights tribunal disagreed, finding police work did qualify as normal employment and the woman’s administrative pardon was equal to a regular pardon. The police were ordered to pay the woman $5,000 in moral damages. The Quebec Court of Appeal backed up the tribunal, ruling the police couldn’t reject the application based on the fact she had pled guilty to an offence.

In a 6-2 decision, the Supreme Court of Canada upheld the ruling, finding the rejection violated the woman’s charter rights. It found a criminal conviction alone shouldn’t be used as the sole basis for evaluating a job applicant. But it also said the circumstances leading to the charges could be used to establish good moral character if they were properly investigated.

“A pardon does not erase the past,” said the court. “An employer is therefore entitled to consider the facts that resulted in a finding of guilt in assessing whether a candidate has the qualifications required for a job.”

However, in this case, the Supreme Court found the police based the rejection solely on the finding of guilt and didn’t pursue any further inquiry on whether it was related to the job or whether the discharge and pardon had an effect on how she should be viewed.

“(The facts of her guilty plea) did not have to be disregarded in reviewing the application, but they could not serve as the sole basis for rejecting it,” said the Supreme Court. “The (police force) made no real inquiry that would have enabled it to justify its decision.”

For more information see:

Montreal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse)

, 2008 SCC 48 (S.C.C.).

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