Criminal Records and Your Job | Authors: Jared Lecker and Simon Pelsmakher, Student-at-Law
Every year, thousands of Canadians commit crimes. For some, these are a result of mistakes and poor judgement. Federal Criminal Code offences are generally more serious than their Provincial counterparts. They result in a documentation of the crimes, referred to as Criminal Records.
Even after you have done your time, paid your dues and learned from your mistakes, your criminal records seemingly follow you around everywhere. They will interfere with everyday life, including credit applications, border security as well as jobs.
It is not uncommon for workplaces to discriminate against individuals perceived as “criminals”. Some jobs require applicants to undergo police checks. Your existing employer could fire you for being accused, but not charged, with a provincial or quasi-criminal offence. However, if you are feeling apprehensive about your criminal records, rest assured that, in most cases, the law protects you from discrimination.
As a prospective employee in Ontario, there are a variety of background checks an employer can conduct on you. A Reference Check is a formality that accompanies most job applications. Generally, it is a short conversation your potential employer would have with a former employer or personal contact. They use it to understand your work history, work ethic and character. Employers almost never inquire about criminal records at these discussions.
Employers would conduct a Police Criminal Records Check when they require bonded employees to handle money on the job. This check only reveals previous convictions which the government has not formally pardoned. A more invasive Police Information Check builds on the Criminal Records Check. It reveals any outstanding charges, orders, withdrawn reports, police occurrence reports, etc.
The Police Vulnerable Sector Check is the most invasive. Organizations offering work and volunteer opportunities with vulnerable persons typically require it for teachers, elder care or daycare workers, coaches and nurses. In addition to the information from the two Police checks described above, this check will pull up information about sexual and violent offences, even if a pardon has been granted.
Criminal Records & Ontario Human Rights
The Employment Standards Act, 2000 (ESA) as well as the Ontario Human Rights Code (OHRC) govern almost all workers’ rights in Ontario. The OHRC expressly prohibits employers from discriminating against you based on grounds of “Record of Offences.”
The “Record of Offences” includes Federal Criminal Code convictions for which a pardon has been granted and not revoked. It also includes Provincial offences under The Highway Traffic Act, The Fish and Wildlife Conservation Act, The Liquor License Act, etc.
While some Provincial offences require your court attendance and carry serious consequences, such as loss of your driver’s license, nevertheless, the OHRC considers them less serious than Federal Criminal Code offenses. Therefore, they stand firm that employers not hold such offences against you at work.
Pardons and Criminal Records Suspensions
For most crimes, it is possible for you to apply for, and receive, a Pardon as well as a Criminal Records Suspension after you have completed your sentence. The Federal Government issues the Pardons and Record Suspensions once you demonstrate you are a law-abiding citizens. Your criminal records are kept separate and apart from other active criminal records.
However, the law no longer Pardons crimes specifically committed under the Safe Streets and Communities Act. You may still seek a Record Suspension after completing your sentence for this crime. However, Ontario has not amended OHRC laws to include coverage for individuals whose criminal records are suspended, but not pardoned.
Under such circumstances, you should remain wary about job applications. If a prospective employer requires a criminal record check, they could maintain their right to deny you the position based on the findings.
Bona Fide Job Requirements
Your employer can ask you to undergo a background check if it is a bona fide requirement for the job. This issue was at the heart of the dispute in Joss Covenoho v. Pendylum Inc., 2016 ONSC 4969. Mr. Covenoho was offered employment for a period of one year under a fixed term contract. After a couple of months, one of his employer’s clients insisted that everyone working on their projects undergo criminal records checks. Mr. Covenoho refused and they subsequently terminated his employment.
He commenced litigation for breach of contract and wrongful dismissal. The court sided with his employer and dismissed the matter. They noted that the police check requirement applied to all employees equally and the employer had provided staff sufficient notice about it. They found nothing untruthful, misleading or unduly insensitive about the employer’s actions.
The Court of Appeal ultimately reversed this decision. However, it was not due to discrimination. Rather, the Court of Appeal ruled on the employment contract itself. They rendered it void because it reduced Mr. Covenoho’s fundamental right to termination pay which is guaranteed under the ESA.
Mr. Covenoho ultimately received wrongful dismissal and breach of contract damages because of a poorly drafted employment contract and not for discrimination against his refusal to undergo a police check.
The law as it intersects criminal records and your employment is complex. While clear Human Rights protections exist, such cases usually require the services of experienced employment lawyers to disseminate multi-faceted laws.
Lecker & Associates have been practicing employment law for over 35 years. We exclusively represent employees. Wrongful Dismissal and Severance Negotiation remain cornerstones of our practice. If your employer has discriminated against you because of your criminal records, contact us. We will examine your case and advise you of your options.
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