November 21st, 2017 | Sterling

Legislative Bill Proposes to Protect Police Records Under Ontario Human Rights Code

Canadian human rights laws help promote equality in the workplace and are an integral part of Canadian society. They are designed to prevent discrimination based on certain protected characteristics. Human rights laws exist in all jurisdictions in Canada. The Canadian Charter of Rights and Freedoms, enacted in 1982, is part of the Constitution and applies to government action only, not to private organizations or individuals.  The Canadian Human Rights Act applies to organizations in the federal jurisdiction, like telecommunications companies and railways, and covers all types of discrimination which are based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, genetic characteristics, disability, gender expression or identity, or conviction that is subject to a pardon or record suspension.

Each province and jurisdiction has its own human rights law, and each is slightly different and protects different groups in different ways. It is vital that organizations familiarize themselves with the laws that could apply to them. For provincially-regulated businesses, the applicable law may be the one that applies where the business is located, where the applicant resides, where the recruitment is happening or where the employment will take place. If these activities happen in more than one province or territory, multiple laws could apply.

Bill to Update to Ontario Human Rights Code

There has recently been a private member’s bill to update to the Ontario Human Rights Code that is working its way through a committee of the Ontario legislature. The bill would, among other things, add police records to the characteristics protected under the Code. Police records are defined in the new bill as “charges and convictions, with or without a record suspension, and any police records, including records of a person’s contact with police.” Currently, the Code only protects against discrimination based on pardoned criminal offences or offences under provincial statutes, neither of which are reported through Sterling’s Canadian Criminal Record Check product.

If the updated bill is passed, it will align Ontario with British Columbia, Quebec, Yukon, Newfoundland, Labrador and Prince Edward Island best hiring practices, in that employers would no longer be permitted to discriminate against employees based on police records that are irrelevant to the position. It is important to note that this bill does not propose a blanket ban on collecting or considering police records in an employment decision; it only proposes that police records should only be used in an adverse employment decision where their absence (meaning a record devoid of certain offences) is a bona fide requirement of the position.

Human Rights Protection for Police Information

In some jurisdictions, some types of police or criminal record information may benefit from protection under human rights law. This means that employers need to make individual assessments to decide if the candidate should be hired based on the information found in a background screening report. There are two different types of police information: non-conviction records and criminal conviction records.

• Non-Conviction Records – These are police or court records that did not or have not yet resulted in a conviction. These types of records include warrants, pending charges, dismissed charges and police interactions. A discharge, where there is a finding of guilt (but it isn’t a conviction), is also a non-conviction record. These records can be found by an Enhanced Police Information Check and some checks conducted by local police.
• Criminal Conviction Records – Records of criminal convictions are what is normally meant by a “criminal record.” There are many types of offences that are not criminal; these are known as penal or regulatory offences and they exist at both the federal and provincial level. It is important to remember that all criminal law is federal, but not all federal offences are criminal.

Criminal records and police information require great care to avoid unfair or illegal discrimination. There are three different types of protections given to offences based on Canadian law, but they are treated in different ways in different jurisdictions.

The three types of police or judicial information that may be protected under Human Rights laws:

• In some jurisdictions, the law forbids discrimination based on criminal offences subject to a pardon or a record suspension.
• In some jurisdictions, the law restricts (but does not forbid) discrimination based on criminal history, including convictions. In these jurisdictions, criminal history information can only be used if it is related to the position.
• In other jurisdictions, the law does not specifically protect criminal history. However, a human rights commission or tribunal could extend protections to information found in a criminal record check based on other provisions in the law.

Compliant Background Screening Policies

Recruiters and hiring managers have access to a great deal of information about job applicants. Some of this information can be covered by Human Rights laws and must be handled very carefully. Illegal discrimination or the appearance of it may result in a human rights complaint, which can lead to a time-consuming and expensive investigation. Having good practices and procedures in place to reduce the possibility of illegal discrimination may help respond to a human rights complaint or lawsuit.

Sterling will provide further updates on the Ontario Human Rights Code update bill as it progresses through the legislature. Whether or not it passes, Sterling Talent Solutions recommends that all employers across Canada consider the relevance of criminal records before making an adverse decision. Blog posts, webinars and whitepapers about background screening best practices can be found at Sterling’s website.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.