In most cases, conviction can't be used as the main reason for refusing to hire
Question: Can we use a job applicant's criminal conviction as a reason for not hiring him? The conviction is unrelated to the job duties but we are concerned about being able to trust the applicant, which is important to the position.
Answer: The ability of an employer to legally consider — and to legally ask a job applicant about — a criminal conviction varies in different jurisdictions.
In some jurisdictions, such as Alberta, Manitoba, Saskatchewan and New Brunswick, there is no protection afforded to applicants with criminal records. In these jurisdictions, there is no human rights impediment to refusing employment based on the perceived untrustworthiness of the applicant arising from her criminal record. At the other end of the spectrum, the Yukon Human Rights Act stipulates it is discrimination to treat any individual or group unfavourably on the grounds of criminal charges or a criminal record.
Other jurisdictions grant limited protection to applicants with criminal records. Some (British Columbia, Prince Edward Island, Quebec) stipulate employment decisions are not to be made on the basis of the employee’s conviction of a criminal or summary conviction offence unrelated to employment. Others extend the protection only to those who have obtained a pardon for the offence for which they were convicted (Northwest Territories, Nunavut, Ontario and Quebec).
In a jurisdiction where a form of limited human rights protection is granted to an employee with a criminal record, whether the conviction can be taken into account will depend, in the first instance, on the triggering factor for the granting of the protection. If it is based on the criminal offence having been pardoned and no pardon has been obtained, discrimination is not prohibited. However, if it is based on a relationship between the offence and the employment, and the conviction is unrelated to employment, it will be far more difficult to establish a basis for denying the employment.
The fact a job applicant is entitled to protection from discrimination on the basis of a criminal record does not mean it is impossible to consider her criminal past. Ontario legislation expressly provides that consideration of an applicant's record of offences — pardoned conviction or conviction for a provincial offence — is not discriminatory if it is a reasonable and bona fide qualification because of the nature of the employment. Employers governed by other legislation would typically have the ability to rely on more general provisions relieving an employer of liability where prohibited discrimination has been necessitated by job requirements. However, establishing a bona fide occupational requirement is not an easy process at the best of times. The acknowledgement that the criminal conviction of the applicant is unrelated to the position to be filled suggests that it might be particularly difficult in the above situation.
A recent Supreme Court decision dealing with the protection granted in Quebec is instructive as to the requirements necessary to establish a bona fide occupational requirement in the context of a refusal of employment based on past criminal conduct. In Québec (Commission des droits de la personne & des droits de la jeunesse) c. Montréal (Service de police de la Communauté urbaine), an applicant for a police position had been pardoned following conviction for shoplifting four years earlier. The employer rejected her application based on its conclusion she was not of "good moral character," a factor the employer was entitled to consider under the governing legislation. A human rights tribunal concluded the employer had improperly based its decision on the conviction and upheld the complaint.
A majority of the Supreme Court agreed with the tribunal that the employer had breached the Quebec Charter of Human Rights in relying on the conviction. However, it rejected the view of the tribunal that the employer was not entitled to consider the facts on which the conviction was based. According to the Supreme Court, the employer could consider the facts surrounding the pardoned conviction in its assessment of the applicant's character. What it could not do was rely solely on the conviction in making that determination. Had the employer established some lack of moral character apart from the conviction, its refusal to conisder the applicant's application might have been warranted.
The decision in Québec confirms employers must proceed cautiously and with due regard to the actual facts underlying the conviction and justify the refusal to employ when discrimination is prohibited on the basis of a criminal record. An employer is not obliged to pretend the offence has not occurred when a pardon has been granted, but, conversely, the employer may not treat the conviction itself as determinative of the employee's suitability.
For more information see:
•Four B Manufacturing Ltd. v. U.G.W., 1979 CarswellOnt 715 (S.C.C.).
•Québec (Commission des droits de la personne & des droits de la jeunesse) c. Montréal (Service de police de la Communauté urbaine), 2008 CarswellQue 6947 (S.C.C.).
Tim Mitchell is a partner with Laird Armstrong in Calgary who practices employment and labour law. He can be reached at email@example.com or (403) 233-0050.