At SpringLaw we get a lot of questions from both employers and employees about the intersection of the criminal law and the employment relationship. Unfortunately it’s easier, and likely more common, than you might think to get somehow mixed up in a police database or wind up with a criminal record.
Many employers will require some sort of criminal record check as a condition of hiring, or will have policies with respect to their current employees disclosing criminal charges. For the most part Human Rights and Privacy laws do not protect this information.
Types of Record Checks
In general, an applicant will need to provide the employer with appropriate consent to perform a record check. There are three basic types of record checks:
Police Criminal Record Check
This is the least intrusive level of check and will reveal criminal convictions that have not been pardoned only.
Police Information Check
This check will reveal much more extensive information, including outstanding charges, peace bonds and probation orders, absolute and conditional discharges, family court restraining orders, other court dispositions such as withdrawn charges, police occurrence reports and information about police contact such as 911 calls and police interactions that did not results in charges.
Vulnerable Sector Check
This check will include all the information in Criminal Record Check, as well as a Police Information Check as well as information about certain sexual and violent offences for which a pardon has been granted.
Discrimination Based on Record of Offences
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(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or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;
If an applicant has been convicted and been subsequently pardoned, it would contravene the Code to deny her or him employment, even in part because of the record of offences. However, discrimination based on any of the other information that might show up in a check is not prohibited. This means that where an applicant has a criminal record, or a pending charge for example, they can be denied employment on that basis.
Where the applicant has been convicted and pardoned the Code provides protection. 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, an employer may deny an applicant a job for other reasons (over-qualified, lack of specific experience, conservative haircut, etc), but if an applicant could prove that at least part of the decision was based on concerns with respect to his or her record of offences (that is, had she or he been convicted and pardoned), the applicant could have a successful discrimination claim.
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.
This can be concerning news for job applicants who may have had some interaction, short of a conviction and pardon, with the justice system.
If you have questions about the intersection been criminal law and your workplace we’d be happy to chat.