Human Rights Laws and Inclusion of New Grounds—Criminal Record

By: Linda McKay-Panos

This blog article originally appeared in LawNow Vol. 41(6) and is reprinted with permission.

Various provincial and federal jurisdictions choose to protect people from discrimination on various grounds in areas such as employment, services customarily available to the public and tenancy. In some cases, the grounds protected are the same across jurisdictions. In others, court challenges have resulted in court orders that grounds are to be read into human rights law (e.g., “sexual orientation” was read into Alberta’s human rights law by the Supreme Court of Canada in the Vriend case in 1998.) In addition, over time, provincial legislatures and the federal Parliament come to realize there are vulnerable individuals who experience discrimination, and who should be protected by human rights laws. These governments add grounds to their legislation to address the discrimination. For example, over the past twenty-five years, several grounds have been added to Alberta’s human rights law—family status, marital status, sexual orientation, gender identity and gender expression—to name a few. 

Protection from criminal record discrimination provides a remedy if a person is being denied a benefit, such as employment or services, because he/she has a criminal record. However, this protection is sporadically provided across Canada. The following jurisdictions do not provide any protection from discrimination on the basis of criminal record:

• Alberta Human Rights Act (RSA 2000, c A-25.5)
• Saskatchewan Human Rights Code (SS 1979, c S-24.1)
• New Brunswick Human Rights Act (RSNB 2011, c 171)
• Nova Scotia Human Rights Act (RSNS 1989, c 214)
• Prince Edward Island Human Rights Act (RSPEI 1988, c H-12)

Manitoba’s legislation—The Human Rights Code—does not list criminal record as a protected ground (CCSM c H175); however, the Manitoba Human Rights Commission will accept complaints on this basis (Policy #I-12, effective August 16 2002; online: http://www.manitobahumanrights.ca/publications/policy/policy_criminal-record.html).

The following jurisdictions provide protection from discrimination on the basis of criminal record in all areas (e.g., services customarily available to the public, tenancy, and employment):

• Canada: Canadian Human Rights Act (RSC 1985, c H-6) prohibits discrimination on the basis of a “conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered”. This act applies to federally regulated companies and undertakings (e.g., banks and transportation companies).
• Northwest Territories Human Rights Act (SNWT 2002, c 18) “conviction that is subject to a pardon or a record suspension”.
• Nunavut Human Rights Act (SNu 2003, c 12) “conviction for which a pardon has been granted”.
• Yukon Human Rights Act (RSY 2002, c 116) “criminal charges or criminal record”.

Four provinces provide protection in the area of employment.  In Quebec, The Charter of Human Rights and Freedoms (CQLR c C-12) provides protection in the area of employment: “18.2. No one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence.” In British Columbia, the Human Rights Code (RSBC 1996, c 210) section 13(1) provides that “a person must not (a) refuse to employ or continue to employ a person, or (b) discriminate against a person regarding employment or any term or condition of employment …because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.” In Ontario, the Human Rights Code (RSO 1990, c H.19) section 5 protects against discrimination in employment based on “record of offences” which is defined as “(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”. Finally, in Newfoundland and Labrador, the Human Rights Act (SNL 2010, c H-13.1) section 14 provides that “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 …..because of the conviction for an offence that is unrelated to the employment of the person.”

Because legislating in relation to civil rights matters is under the jurisdiction of individual provinces and territories, there may be differences in legislation across Canada. The question is whether there should be some provinces where human rights protection for people with criminal records is not available.

Why provide human rights protection for people with criminal records? Most people who have committed crimes and served their sentences will re-enter society and hope to become constructive citizens. This means they need to obtain employment. Currently, in many Canadian jurisdictions it is not illegal to ask during an employment interview whether a person has a criminal record. This creates a huge barrier for individuals who have served their sentences and are seeking to rehabilitate and become productive citizens. When the nature of the offence for which the person has served their sentence has nothing to do with the employment they are seeking, it should be illegal to discriminate against the person. If the offence is related to the proposed employment, it would always be available to defend discrimination as a good faith employment requirement. For example, if the person has been convicted of embezzlement from a bank, employers or potential employers may well want to exclude that person from working in a job that requires being responsible for financial matters. In sum, if protection from discrimination on the basis of criminal record is not provided, people with criminal records who cannot find legitimate work may resort to illegal means or will rely on social assistance to support themselves, both of which cost all taxpayers and have other negative consequences for everyone.

The Calgary John Howard Society has launched a new initiative entitled: "I Am More Than My Criminal Record" (see: https://iammorethanmycriminalrecord.com/). The purpose is to reduce the stigma associated with a criminal record. This is also meant to encourage employers to exercise good faith and consider taking the initiative not to ask about criminal records unless it is relevant to the job. However, some individuals will not change their practices unless the law requires them to do so. This means that a legislative amendment will be required to ensure everyone has a fair chance for employment; and, in the end, everyone will benefit.