Guidelines Regarding Employment of Persons with Criminal Convictions Current as of February 23, 2011 Guidelines are not law: These guidelines reflect the Newfoundland and Labrador Human Rights Commission’s interpretation of the provisions of the Newfoundland and Labrador Human Rights Act 2010 (“the Act”) and various legal decisions from across Canada with respect to employment and criminal convictions. They are subject to decisions by Boards of Inquiry (called Tribunals in some provinces) and the Courts and should be read in conjunction with such decisions and with the specific language of the Act. Readers should be aware that as with all areas of law, legal obligations may evolve as new decisions emerge. If there is any conflict between these guidelines and the Act, the Act will prevail. Any questions regarding these guidelines should be directed to Commission staff. These guidelines should not be substituted for legal advice.

Introduction One important purpose of human rights legislation is to protect individuals from being denied opportunities on the basis of certain personal characteristics known as “prohibited grounds.” 1 Newfoundland and Labrador’s Human Rights Act was amended in July 2010 to include an additional prohibited ground of discrimination known as the “criminal ground.” This new ground protects persons with a criminal record from being discriminated against by potential or current employers on the basis of that record. The Act prohibits employers from imposing conditions of employment, refusing to employ, or otherwise discriminating against an employee because of a criminal conviction that is unrelated to his or her employment. 2 The following information provides further detail on the intent behind this addition to the Act.

Relevant Provision of the Human Rights Act s.14(1) An employer, or a person acting on behalf of an employer, shall not refuse to employ or to continue to employ or otherwise discriminate against a person in regard to employment or a term or condition of employment on the basis of a prohibited ground of discrimination, or because of the conviction for an offence that is unrelated to the employment of the person.

How to use these Guidelines It is important when reading these guidelines to understand that their purpose is to educate as to the general meaning of s.14. The guidelines cannot anticipate whether the particular circumstances of an individual case will be covered under section 14. Employers and employees

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These are listed in the Newfoundland and Labrador Human Rights Act and for example include race, religion, and sex. See the Human Rights Act, S.N.L 2010, c. H-13, s.9 & s.14. 2 Human Rights Act, S.N.L 2010, c. H-13, s.14.

 

should not rely on them when a dispute has already arisen. Employers should use the guidelines to avoid discriminatory practices wherever possible. Employees should use them as a basic, nonexhaustive guide to their rights in the workplace. As noted above, the criminal ground is new to Newfoundland and Labrador human rights legislation. These guidelines therefore rely on legal principles that have been applied in other provinces where the criminal ground has been incorporated into human rights legislation for some time. 3 They explain how adjudicators in other provinces have interpreted similar though not identical legislation. 4 Newfoundland and Labrador Boards of Inquiry and Courts are likely to adopt similar principles in interpreting the new Act, although they may interpret the criminal ground as they see fit.

Structure The interpretation guidelines are broken into several sections. Each section explains the legal meaning of different aspects of s.14. To understand the full meaning of s.14 you must read each section in turn. 1. When/where persons are protected: Employment 2. What does “conviction” include? 3. What constitutes discrimination? 4. Justifiable Discrimination: Offences related to employment 5. Avoiding Conflict: Suggestions for employers and employees

1. When/where persons are protected: Employment Protection under section 14 is exclusive to the employment relationship. If an individual has a criminal conviction, employers cannot use that as a reason to discriminate against him/her where the criminal offence is unrelated to the current employment. The Act does not provide protection from discrimination in any other context (for example, housing, service provision, etc).

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Human rights legislation is different in every province. Provincial legislatures decide what the prohibited grounds are in each province and the kinds of situations where protection is afforded. Adjudicators then interpret the legislation and apply it to specific instances. Because the criminal ground is new to Newfoundland and Labrador, there is no existing case law interpreting it. This guideline therefore relies on existing case law in other provinces. 4 British Columbia legislation is very similar to the new provisions in the Newfoundland and Labrador Act. In British Columbia persons employers cannot discriminate because of a criminal or summary conviction offence that is unrelated to employment. See the Human Rights Code R.S.B.C. 1996, c.210, s.13(1). Quebec legislation is also quite similar. In Quebec a person is protected when discrimination occurs because of the “mere fact of a criminal conviction unrelated to employment.” See Charter of rights and freedoms R.S.Q. c. C-12, s.18.2.

 

While there are provisions in the Act which provide protections in other contexts based on other grounds of discrimination, the “criminal ground” is only protected in the context of “employment”. 5 Example 1: Employees are required to provide a criminal record check before being offered a job. The employer should notify applicants that only criminal convictions reasonably associated with the position in question will be relevant to the hiring decision. Example 2: A person is looking for an apartment. A landlord refuses to rent to the individual on the basis of a criminal record. A landlord need not justify this, as this is not an area protected by the Human Rights Act. The person would be protected if a landlord discriminated against you because of a different prohibited ground, such as race. 6 “Employer” and “employee” have very broad definitions in human rights legislation. This means that an independent contractor, even though not considered an employee in other contexts, would likely be considered an employee under the Human Rights Act. The broad definitions also mean that a parent company could potentially be liable for a subsidiary company’s discriminatory conduct. 7

2. What does “conviction” include? Section 14 guarantees protection from discrimination because of “conviction for an offence.” So what does this include? In some provinces, protection is limited to convictions where a pardon has been granted. Newfoundland and Labrador’s legislation does not have this limitation. Generally, “conviction for an offence” refers to any conviction that would appear on a criminal record check. It includes convictions under the Criminal Code as well as convictions under other statutes, such as an offence under the Highway Traffic Act. A broad and interpretive approach, typically favoured by human rights boards of inquiry, may broaden the protections of the Act to include criminally-related matters beyond a conviction. The British Columbia Human Rights Code contains a criminal ground protection that is very similar to Newfoundland and Labrador’s section 14 protections. In British Columbia, adjudicators have broadened the meaning of “conviction,” such that persons are also protected when they are “perceived to be criminally culpable.” This means if you are under investigation, charged but not convicted, 8 or have been accused of a crime, you are protected from discrimination by employers. 9

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Other provisions in the Act protect against discrimination on the basis of prohibited grounds in the context of accommodation, public services, contracts, and advertising. The criminal ground is not included in these provisions. See the Human Rights Act, S.N.L 2010, c. H-13, s.9, s.11, s.12, s.19 & s.21. 6 Human Rights Act, S.N.L 2010, c. H-13, s.11 & s.12. 7 McEvoy v. Best of Care Ltd, 2008 NLTD 66, 842 A.P.R. 1, 275 Nfld. & P.E.I.R.1. (S.C.). 8 Insurance Corp of BC v. Heerspink, [1981] 121 D.L.R. (3d) 464 BCCA; affd [1982] 2 S.C.R. 145. 9 Korthe v. Hillstrom Oil Co. [1997] 31 C.H.R.R. D/82, (B.C.H.R.T); Clement v. Jackson, [2006] 57 C.H.R.R. D/507 (B.C.H.R.T). 

 

In Ontario adjudicators have restricted the legislation in that province to apply only to convictions that appear on your criminal record. You would not be protected if you were charged, under investigation, or accused of a crime. 10 It is unclear what stance Newfoundland and Labrador Human Rights Boards of Inquiry will take, however the legislation is most similar in wording to that in British Columbia. Below are some examples of the extent of protection in British Columbia: Example 1: You work as an insurance salesperson and you are awaiting a trial for manslaughter. Your boss did not know about the charges and pending trial, and when she finds out she suspends you until the trial is over. She must justify the suspension. Example 2: You work in a convenience store. One night at work a person comes into the store and accuses you of sexually assaulting his daughter. Your boss hears of this event and fires you as a result. Your employer must justify firing you.

3. What constitutes discrimination? If you wanted to show that your employer discriminated against you on the basis of a conviction, you would need to present evidence that your employment was adversely affected in some way, and that your conviction was at least part of the reason for this. If you can establish these things, your employer will then have to justify his or her actions. Below are the requirements in British Columbia and Quebec. The requirements in Newfoundland and Labrador are not yet established but may be similar. In British Columbia for an individual to establish discrimination on the basis of criminal conviction, he or she must show that: 1. He or she has a conviction (in the broad sense of the term, as described above); 2. That the employer: a. Refused to hire b. Refused to continue to employ; or c. Demanded a condition of employment of him or her; AND that 3. The conviction was at least part of the reason the employer took the action described above. 11 In British Columbia the criminal conviction does not need to be the only reason that the employer took this action. It need only be a factor in the employer’s act, and it need not even be

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In Ontario the legislation also limits protection to pardoned offences. This limitation does not exist in the Newfoundland and Labrador Human Rights Act. See the Human Rights Code R.S.O. 1990, c. H.19, s. 5(1). See also the definition of “record of offences” in the Criminal Records Act R.S.C. 1985, c. C-47, s.10(1). 11 Hugenschmidt v. Underwater Diving Development Society of BC, [1998] 9 C.H.R.R. D/5389. (B.C.C.H.R.); Wright v. Boden, 2007 BCHRT 286, C.L.L.C. 230-023, CarswellBC 1839.

 

the main factor either. 12 Once the claimant establishes that criminality was a factor, the employer is obligated to justify his or her actions. 13 show:

In Quebec, the requirements are similar, though slightly more stringent. A claimant must 1.

That the employer dismissed, refused to hire, or imposed some other penalty in the person’s employment;

2.

Owing to the “mere fact” that the person was convicted of a penal or criminal offence 14

Quebec case law says that the conviction need not be the only cause but it must be the actual cause of the employer’s action. The test is designed to prevent employers from hiding discriminatory reasons behind some other justifiable cause. 15 Quebec case law also indicates that in some circumstances if an employee lies about a prior conviction when asked, this could constitute a justifiable dismissal. The cause of dismissal would not be the conviction itself, but rather the fact that the employee was dishonest. 16 This would apply in limited situations where an employee is accorded a great deal of responsibility and trust. Employers should not rely on this justification without further legal advice. Employees however should take note that dishonesty is not advisable. Below are two examples demonstrating how the principles developed in British Columbia and Quebec might work: Example 1: You go into a job interview. The interviewer asks you if you have ever been convicted of a criminal offence. You answer yes. You are otherwise qualified but are not hired for the job. You later discover that the person who was hired does not have your qualifications. You may have a human rights claim. Example 2: You work for a hair salon. The owner of the store discovers that you have a criminal conviction. Two weeks later she dismisses you, and she tells you it is because you have not been showing up for work and are consistently late. If what your employer claims is true, you may not have a human rights claim, as the cause of your dismissal was not your conviction. The actual cause was that you were always late. However, if the evidence shows that the owner was hiding her true reason for firing you, that your conviction the actual reason, you may still have a claim. Evidence of this may be

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Wright v. Boden at para 56. For justifications, see the next section: justifiable discrimination. 14 Therrien v. Quebec (Ministre de la justice), 2001 SCC 35, 2 S.C.R. 3, 155 C.C.C. (3d) 1. 15 Maksteel Quebec Inc. v. Quebec (Comm. Des droits de la personne et des droits de la jeunesse), 2003 SCC 68, 3 S.C.R. 228, 47 C.H.R.R. D/399. 16 Therrien at para 143. 13

 

that you have worked there for 3 years and your employer never had a problem with you being late before she found out about your conviction.

4. Justifiable Discrimination: An offence related to employment Once an employee can show differential treatment as described above, an employer then must defend their actions by showing justification for their decision. The legislation specifically allows the employer to argue that the offence is related to the employment. If the particular offence that a person was convicted of is related to his or her employment, an employer may be justified in discriminating. For example, if a person was convicted of sexually assaulting children, a daycare could refuse to hire that person on the basis of that conviction. Unlike for other prohibited grounds, once an employer shows that the conviction is related to employment, the employer does not need to attempt to accommodate the individual. 17 He need not further investigate whether there is a way to integrate the employee into the workforce. 18 Whether or not an offence is related to employment sufficient to justify discriminatory conduct depends on the circumstances of each case. British Columbia tribunals have articulated three factors to consider: 1. Does the behaviour for which the charge was laid, if repeated, pose any threat to the employer’s ability to carry on its business safely and efficiently? 2. What were the circumstances of the charge and the particulars of the offence involved (ex. How old was the individual when the events in question occurred, were there any extenuating circumstances?) 3. How much time has elapsed between the charge and the employment decision? What has the individual done during that period of time? Has he shown any tendencies to repeat the kind of behaviour for which he was charged? Has he shown a firm intention to rehabilitate himself? An employer should consider the factors listed above in addition to any other relevant factors, in deciding whether this employee’s criminal record relates to this employee’s job duties. 19 Adjudicators have emphasized the importance of making inquiries and communicating the relevance of the offence to the employee. 20 If an employer can establish that the conviction is

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Maksteel; Wright v Boden; McKnight v. Insurance Corporation of BC 2003 BCHRT 89, 48 C.H.R.R. D/216; Dunphy v. British Columbia (Ministry of Public Safety and Solicitor General), 2005 BCHRT 3, 51 C.H.R.R. D/320. 18 For the other prohibited grounds such as race or disability, there is an additional duty to accommodate. For more on the duty to accommodate see our “Employer’s Guide to the Human Rights Act.” 19 Woodward Stores Ltd v. McCartney [1982] 3 C.H.R.R. D/1113 (B.C. Bd. Inq.) affd 145 D.L.R. (3d) 193; 4 C.H.R.R. D/1325, 43 B.C.L.R. 314 (SC); Dunphy v. British Columbia (Ministry of Public Safety and Solicitor General (2005), 51 C.H.R.R. D/320, 2005 BCHRT 3; Kent v. Alberni-Clayquot Continuing Care Society, 2009 BCHRT 442,B.C.W.L.D. 2977(B.C. Human Rights Trib.). 20 Blevins v. Christine’s Food Supplies Ltd. [1991] 15 C.H.R.R. D/250 (B.C.C.H.R.). 

 

related, then he or she can justifiably refuse to employ, or to impose a term/condition of employment. The factors considered are very case specific, and there is no precise formula to determine whether a conviction is related to employment. Below are some examples of tribunal decisions from British Columbia, which provide some sense of how these factors have been applied: Example: The BC Human Rights Council found that it was justifiable that a school refused to hire a carpenter because of a charge for trafficking marijuana, finding that that the school has a duty to protect the children within its walls. 21 Example: The BC Human Rights Council found that a record of convictions for violence, theft, drug possession, manslaughter, assault and traffic violations were related to a person’s employment as a taxi driver. 22 Example: The BC Human Rights Council found that it was not justifiable to refuse a social worker employment solely because she had a “record” without inquiry into the particulars of the offences. 23 Example: The BC Human Rights Council found that a conviction for indecent exposure was related to the employment of a public servant (a fire fighter), because the position was a very visible one, requiring an appropriate standard of conduct both on and off duty.24 In both Quebec and British Columbia, time spent in prison away from one’s job is considered related to employment and is not a protected area. This means that if you are convicted of an offence and as a result will be away from your job due to time in prison/jail, your employer may justifiably fire or impose conditions of employment on the basis of this time spent away from the job. 25 There is no legal obligation to hold a job for an employee while they serve time. The Commission frequently receives questions from employers about “trust” issues associated with criminal convictions (i.e. the employer is concerned generally about whether or not the criminal record of an employee/potential employee means the employee cannot be trusted in the work environment). The most helpful answer we can provide is to advise employer to view the criminal record issue objectively, and to carefully consider the factors as they relate to the specific position the employee/potential employee holds.

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Salter v. Peace River South School District No. 59 [1989] 10 C.H.R.R. D/6150 (B.C.C.H.R.). O (B.A.) v. New Westminster (City) [1989] 11 C.H.R.R. D/400 (B.C.C.H.R.). 23 Iwanchuck v. B.C. (Ministry of Human Resources) [1987] 9 C.H.R.R. D/4670 (B.C.C.H.R.). 24 Griffiths v. Coquitlam (District) [1988] 10 C.H.R.R. D/5852 (B.C.C.H.R.). 25 BC human Rights Commission v. BC Human Rights Tribunal [1998] 35 C.H.R.R. D/329, 99 C.L.L.C; Maksteel Quebec Inc. v. Quebec (Comm. Des droits de la personne et des droits de la jeunesse), 2003 SCC 68, 3 S.C.R. 228, 47 C.H.R.R. D/399. 22

 

5. Avoiding Conflict: Suggestions for employees and employers To avoid contravening this section, we suggest that employers: 1. Assess each case on an individual basis; 2. Routinely review job descriptions to ensure accuracy, relevancy and legitimacy and be prepared to justify the details of the job description as they relate to prohibited grounds of discrimination under the Human Rights Act; 3. If an employer requires a criminal record check, it is best to wait until after conditionally offering the job to the potential employee. Employers should carefully review the application material and references prior to this. Employers should explain the relevance of the check and assure the potential employee that unrelated offences will not adversely affect the offer of employment. NOTE: A police record check contains information beyond what is contained in a criminal record check. 26 There will be very few positions for which a police record check is necessary, and accordingly, requests for this type of check should be used sparingly. There are additional obligations on an employer when he or she requests this more intrusive type of information. 4. After obtaining information about conviction, charge, allegation or investigation, the employer should conduct a secondary assessment to determine if the information provided objectively relates to the specific employment. The criteria set out in McCartney (laid out above) are useful for this determination. 5. If an employer determines they cannot hire, must dismiss, or must impose a condition of employment upon an employee (current or potential), the employer should explain why. To protect their rights, we recommend that employees: 1. If asked about criminal history: a. Inquire why this information is necessary. b. Answer truthfully or choose not to disclose, but do not lie. c. If possible, explain why the circumstances of any conviction make it irrelevant to the employment

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A criminal record check does not include offences that were pardoned, unless they were sexual offences. A police record check can include any involvement an individual may have had with the police, including pardoned offences, times where that person was a victim, a suspect, a witness, or entered a mental health facility; although a move is afoot in some provinces (Ontario, British Columbia and Manitoba) to seal off mental health information held by police that is unrelated to criminal convictions so this information cannot be accessed via a police record check.