Police can’t reject applicant based on pardoned criminal offence: Court

Supreme Court of Canada says a crime for which applicant was pardoned can be considered but not used as sole basis for rejection
|employmentlawtoday.com

The Supreme Court of Canada has ruled the Montreal police violated a woman’s rights when it used a past shoplifting incident for which she was pardoned as the basis for rejecting her application to be a police officer.

In 1991, the woman, who was 21 at the time, pled guilty to a charge of theft after she was caught shoplifting and was conditionally discharged. After a few years, she was given an automatic pardon, courtesy of the Quebec

Criminal Records Act

, which grants a pardon to those given a discharge after the passage of a certain period of time. The amendments were designed to differentiate between those who receive a discharge — and no conviction — and those who are convicted and sentenced under the

Criminal Code

.

In 1995, the woman applied to be a police officer with the Montreal police. However, her application was rejected on the grounds she didn’t meet their strict hiring standards requiring “good moral character” because of her shoplifting charge. She told them she had been pardoned, but the decision stood.

The woman filed a complaint with the Quebec human rights commission, saying the police violated the Quebec

Charter of Human Rights and Freedoms

by refusing to hire her solely because she had been found guilty of a criminal offence in the past.

The police argued they didn’t reject her because of her criminal record, but for the conduct itself, which brought into question her moral character. It also argued an automatic pardon from the passage of time was not a normal pardon and someone providing a police service didn’t meet the definition of normal employment under the charter anyway. The human rights tribunal disagreed, finding police work did qualify as employment and the woman’s administrative pardon did qualify as a regular pardon. The police were ordered to pay the woman $5,000 in moral damages.

The Quebec Court of Appeal backed up the tribunal, saying police officers are in an employment relationship and therefore the hiring process is subject to the charter. As a result, the police couldn’t reject the application on the fact she had pled guilty to an offence.

In a 6-2 decision, the Supreme Court of Canada upheld the ruling, finding the police’s rejection of the application violated the woman’s charter rights. It ruled the administrative pardon she received for the passage of time after her discharge should be treated the same as a regular pardon and a criminal conviction alone shouldn’t be used as the sole basis for evaluating a job applicant.

The Supreme Court did say the circumstances leading to the charges could be used to establish good moral character if they were properly investigated.

“A pardon does not erase the past,” the court said. “An employer is therefore entitled to consider the facts that resulted in a finding of guilt in assessing whether a candidate has the qualifications required for a job.”

However, in this case, the Supreme Court found the police based its rejection solely on the finding of guilt and didn’t pursue any further inquiry on whether it was related to the job of police officer and whether the pardon had an effect on how she should be viewed.

“(The facts around the finding of guilt) did not have to be disregarded in reviewing (the woman’s) application, but they could not serve as the sole basis for rejecting it,” the Supreme Court said. “The (Montreal police) made no real inquiry that would have enabled it to justify its decision.”

For more information see:

Montreal (City) v. Quebec (Commission des droit de la personne et des droits de la jeunesse)

, 2008 SCC 48 (S.C.C.).

Add Comment

  • *
  • *
  • *
  • *