Criminal Record Discrimination: Lessons from Bryant
It's been a year since Michael Bryant had his car accident and altercation that led to the death of a bike courier. If he applied for a job at your company, would you hire him, given the publicity and nature of the fatal accident?
The Rising Star of Bryant?
The September issue of the magazine, Toronto Life, has a very interesting cover article on our former provincial Attorney General. For any readers outside of Ontario, Bryant was a rising political star, becoming the province's youngest Attorney General at only 37 years old. After leaving politics, he headed up Invest Toronto.
As a result of the accident on August 31, 2009, Bryant was charged with criminal negligence causing death and dangerous driving causing death. On May 25, 2010, all charges were dropped by the Crown because there was "no reasonable prospect of conviction".
I say "was" a rising star, but have no doubt I will eventually be proven wrong on that. His political return seems inevitable, at least according to the Toronto Life article.
Innocent Until Proven Guilty?
For me, what has been fascinating about the entire ordeal is whether Bryant's political career can survive such a terrible tragedy. Given that the charges were dropped, the old adage of innocent until proven guilty is particularly important - he is officially innocent of any wrongdoing. So can he and/or should he be punished - formally or informally - for the incident?
All is fair game in politics, and the public can respond in whatever raw fashion it wants.
Discrimination Based on Record of Offences
An employer, on the other hand, cannot respond in its own raw fashion. If Bryant did apply at your company, you could not deny him a position on the basis of a criminal record, because he doesn't have one. The charges were dropped, so there is no criminal conviction.
Even had he been convicted, however, there are certain restrictions at law that would apply to both potential applicants and current employees.
The Ontario Human Rights Code prohibits discrimination on the grounds of "record of offences", which is defined as follows:
10(1) "record of offences” means 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(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or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;
So, had Bryant been convicted and been subsequently pardoned, it would have contravened the Code to deny him employment, even in part because of the record of offences.
As with all discrimination claims in the workplace, the employment decision at issue need not be based entirely on the ground of discrimination. For example, you may have denied Bryant a job as head cashier in your bookstore because of several factors (lack of political fit, over-qualified, lack of specific experience, conservative haircut, etc), but if he could prove that at least part of the decision was based on your concerns with his record of offences (that is, had he been convicted and pardoned), he would have a successful discrimination claim.
More difficult are the applicants that fall outside the specific grounds of discrimination in the Code (see section 5). Can you refuse to hire a high profile person because of a perception of guilt (OJ Simpson comes to mind), or a reputation for raising public eyebrows (Mel Lastman, for example?)?
As long as you are not basing the hiring decision at least in part on a ground of discrimination (e.g. racial profiling or assumptions about certain religious or ethnic backgrounds), then the business decision can prevail. Not every applicant will fit with your organization, and that is perfectly legitimate, provided the lack of fit is not in any way based on the Code's list of grounds for discrimination
As for Bryant, he returned to private practice on Bay Street, but I suspect we haven't seen the last of his political ambitions.
