The Supreme Court of Canada recently handed down a decision in Montréal (City) v. Québec (Commission des droits de la personne et des droits de la jeunesse) where it examined the rule, set out in Section 18.2 of the Charter of Human Rights and Freedoms1 (Charter), preventing employers from dismissing or refusing to hire someone owing to the mere fact that that person was convicted of a criminal offence, if that person has been pardoned. This rule applies despite the existence of a link between the offence and the job.
In November 1995, the Service de police de la Ville de Montréal (SPVM) informed a job candidate that her application for employment as a police officer had been rejected. The candidate contacted the SPVM and was told she had been turned down because she did not satisfy the “good moral character” requirement in the Police Act2 and the By-law respecting standards of the Sûreté du Québec and municipal police forces for the hiring of constables and cadets.3 An inquiry by the SPVM had revealed that, in 1991, the candidate had pleaded guilty to a charge of shoplifting committed in 1990, when she was 21. She was conditionally discharged and subsequently received an automatic pardon under the Criminal Records Act.4
The candidate filed a complaint with the Commission des droits de la personne et des droits de la jeunesse (Commission). She argued that the SPVM’s decision violated Section 18.2 of the Charter since it was based solely on the finding of guilt and ignored the fact she had been pardoned.
The SPVM refused to comply with the Commission’s recommendations that it pay the candidate $5,000 in damages (she no longer wished to be considered for the job) and cease to consider her criminal record when applying the “good moral character” criterion. Faced with this refusal, the Commission submitted an application to the Human Rights Tribunal (HRT).
DECISIONS OF THE LOWER COURTS
The HRT concluded that the SPVM had discriminated against the candidate by refusing to hire her solely because she had been found guilty of a criminal offence and despite that she had been pardoned. Since the candidate had given up on becoming a police officer, it ordered the SPVM to pay her $5,000 in moral damages. However, the HRT did not grant the Commission’s request to order the SPVM to cease considering the candidate’s criminal record in applying the “good moral character” criterion.
The Court of Appeal dismissed the appeal and upheld the HRT’s decision.
THE SUPREME COURT OF CANADA DECISION
The Supreme Court dismissed the SPVM’s appeal and upheld the order to award the plaintiff $5,000 in moral damages.
The Court confirmed that a police officer holds employment within the meaning of Section 18.2 of the Charter. Reiterating the findings in the Therrien (Re) case,5 the Court explained that, even though police officers are an integral part of the judicial system, they do not enjoy the constitutional protection judges are granted to ensure that they are not subject to any bureaucratic higher authority. The relationship of subordination that characterizes the employment relationship of police officers, which is an essential feature of the employer-employee relationship, clearly distinguishes them from judges.
The Court also found that the reference to pardons in the Charter is not limited to pardons as they existed at the time the Charter was adopted. In other words, this term includes the administrative pardons created by federal legislators in 1992.6 This legislative change did not alter the concept of a pardon, which is meant to obliterate the social stigma of a finding of guilt: a pardon creates a presumption that a person’s moral integrity has been restored.
Lastly, the Court examined why the SPVM refused to hire the candidate. Was it solely because she was found guilty of an offence? The Court found that “good moral character” is a prerequisite for the position of police officer. Under Section 20 of the Charter, a distinction based on an aptitude required for the job does not constitute discrimination. Therefore, an employer can consider the circumstances surrounding the offence to determine if the person is of “good moral character”. However, if an employer takes these circumstances into account, it must prove it conducted a thorough inquiry before concluding the candidate is unfit for the job. In other words, to counter the protection afforded by Section 18.2 of the Charter, an employer must show that its decision was not based solely on the finding of guilt. Elaborating on this point, the Court reiterated that Section 18.2 of the Charter is an independent provision and Section 20 cannot be applied to counter the protection afforded to someone in the context of their employment solely because they were found guilty of a criminal offence.
The Court concluded that the evidence brought before the HRT showed the SPVM did not undertake a thorough inquiry and had refused to hire the candidate solely because she was found guilty of an offence.
Section 18.2 of the Charter is designed to protect people from the stigma and prejudice attached to criminal convictions. However, the Supreme Court found that while a pardon creates a presumption that a person’s moral integrity has been restored, it does not erase the past; the guilty finding and circumstances surrounding it do not disappear.
The Supreme Court concluded that an employer is entitled to consider the facts giving rise to a criminal offence. Despite this, it would probably be difficult for that employer, if it rejects a candidate, to successfully prove its decision was not based solely on a criminal conviction. Employers therefore need to keep in mind that a pardon has an effect on a person’s employment status even when there is a link between a criminal offence and the job in question.