Recent changes to Ontario law make it harder for an employer to find out if their employees (or prospective employees) have faced criminal charges in the past – unless those charges resulted in a conviction. But, these changes haven’t banned discrimination on the basis of non-conviction charges (cases where charges were dropped or you enter into a peace bond, for example). Labour, employment and criminal lawyers alike still need to be aware of the impact a criminal charge or conviction can have on their clients at work.
HUMAN RIGHTS CODE
The Ontario Human Rights Code offers some protection to people looking to start-over after a brush with the law. It bans discrimination on the basis of a criminal conviction that has since been pardoned or received a record suspension. Unfortunately, charges that are dropped cannot be pardoned. For this reason, the Human Rights Tribunal of Ontario has found that there’s nothing illegal about discriminating against some one because they have been charged with an offence, even if the charge was dropped. Similarly, discrimination on the basis of having entered into a “peace bond” isn’t a violation of the Code. It doesn’t offer any protection for people who have been charged with provincial offences, either.
VULNERABLE SECTOR CHECK
Even the new restrictions on background checks and the Code ban of discrimination after you’ve received a pardon is limited. An employer can discriminate on the basis of a criminal record if they have a real concern that your record prevents you from being able to do your job. For example, an employer in the child- or healthcare sector can refuse to hire some one who has been convicted of child abuse related charges, even if they have been pardoned.
People out of work because of the results of a vulnerable sector check may seek LEARN reconsideration and ask to know the reason why their vulnerable sector approval has been denied.
Other workers may have to report past or outstanding charges to a professional college, regulator or employer. For these workers, the lack of a conviction may not mean that they don’t have to report the charge to their professional body or boss. Some workers may find themselves unable to obtain employment in the first place because of past contact with the criminal justice system while others may find themselves fired or see their license suspended or revoked following an arrest.
Lawyers helping a client assess their options after they’ve been charged with a crime should be sure to ask about their job. A wide variety work is regulated either by an independent college or some other regulatory body that may require its licensees to promptly report brushes with the law. Some examples include teachers, doctors, lawyers, licensed mechanics, car salespersons, real estate agents and people who hold a liquor license.
WHAT’S A CRIMINAL LAWYER TO DO?
Whether some one will be disciplined or fired because of a criminal charge depends on a number of factors and varies greatly from case to case.
- Think about the employment consequences your client may face and consider working together with her employment lawyer or union to make sure that all of her interests are protected as best as possible. This may include working with her other representatives to seek a stay of any other legal proceedings pending the outcome of her criminal trial, for example.
- If your client needs to maintain a license of any kind to keep her job or keep her business open, you should consider referring her to a lawyer with experience dealing with regulations applicable to her industry.
- If your client is unionized, they should reach out to their union soon after any charges to seek assistance in navigating any workplace consequences.
- If your client is refused a job or fired after her employer discovers that she has been charged with or convicted of a crime, encourage her to seek advice from a human rights or employment lawyer to determine if this was contrary to the Code or if it was a wrongful dismissal. If your client has a Union, she may wish to file a grievance.
If you are some one with concerns about the impact that a criminal charge or conviction may have on your job, please consider seeking legal advice from your criminal and employment lawyers.
de Pelham v. Mytrak Health Systems, 2009 HRTO 172 (CanLII)
Musoni v. Logiteck Technology Ltd., 2011 HRTO 1122 (CanLII)
J.N. v. Durham Regional Police Service, 2011 ONSC 2892 (CanLII)
This blog is for educational and informational purposes only and does not constitute legal advice. If you would like legal advice or have questions about your particular workplace problems please contact a lawyer. Our lawyers’ information is available on our Contact Us page.
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