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Pleading guilty: the effect of criminal convictions in the employment law context in British Columbia

Research articles : 
Key terms: employment, criminal record, indictable offence, contravention, summary conviction, conditional discharge, absolute discharge, peace bond, discrimination, bonding, bondable.
 
Introduction
Ideally, persons charged with offences would plead guilty if they had “done it”, and would take the matter to trial when they hadn’t. Guilty defendants would be motivated to plead guilty by their internal sense of justice, while innocent defendants would proceed to trial to clear their names. But, these are probably not the key factors defendants consider. More likely, defendants engage in a cost benefit analysis and guilty defendants take matters to trial if they think they may be able to “get away with it”, and innocent defendants plead guilty to save the time, energy and cost required to prove their innocence.
 
Before pleading guilty or agreeing to plead to a lesser offence, defendants will look to counsel for advice regarding the consequences of each course of action. Defence counsel may suggest that their clients plead guilty in exchange for a conditional discharge or a s. 810 peace bond because the consequences are less significant than for a traditional conviction. But, discharges and peace bonds may also attract significant negative consequences. Frequently criminal lawyers are not aware of all the implications of a defendant admitting guilt. This may be because the main consequences of pleading guilty occur in the employment and immigration contexts; areas of law that criminal lawyers may not be familiar with. But, before advising clients, it is important for counsel to become familiar the many provincial and federal statutes that affect persons with convictions, discharges, and even peace bonds, such that they can properly advise their clients.
 
This article endeavours to tie together relevant aspects of criminal and employment law in a way that assists defence counsel in advising clients on some of the employment law consequences of admitting guilt. The decision to plead guilty ultimately lies with the client. Mindful of their obligations under the Law Society’s Professional Conduct Handbook, defence counsel must not advise their clients to plead guilty if in fact the client does not admit to all of the elements of the offence. However, it is proper for defence counsel to advise their clients of all the legal consequences associated with a guilty plea. 
 
This article is divided into three main parts. First, relevant aspects of criminal law, including the various possible dispositions that may result from a charge, are discussed. Second, some of the consequences of the various dispositions in the context of employment law are considered. Third, the effect of convictions on other areas of law are briefly identified.
 
In effect, this article deals with a human rights issue: to what extent does Canadian employment law discriminate against persons previously convicted of offences? As will become clear, the principle that once a person has served their sentence they been fully punished and should not be discriminated against, is not a reality of our criminal justice system. While primarily intended to protect potential victims rather than to further punish convicted persons, there is a significant amount of legislation which, in effect if not in purpose, limits the opportunities of those with criminal convictions.
 
Jurisdiction to create offences: what does “Criminal record” mean?
When charged with an offence, defendants will often ask “Will I have a criminal record if I plead guilty?” But the term “criminal record” used in this context is a misnomer. The following explains the distinction between Criminal and other offences and draws conclusions regarding how convictions should be described.
 
Federal government legislation
Under s. 91(27) of the Constitution Act 1867, 30 & 31 Victoria, c. 3. (U.K.) [the Constitution Act 1867], only the Federal Government has jurisdiction to create “Criminal offences”. But, not all federal convictions result in “Criminal convictions”. Whether or not an offence is a “Criminal offence” depends on whether the Federal Government relied on the Criminal Law head of power when passing the law. It sometimes takes an appeal to the Supreme Court of Canada to determine which of the 31 heads of power in s. 91 of the Constitution Act 1867 Parliament relied on in passing the law: see, for example, RJR-MacDonald Inc. v. Canada, [1995] 3 S.C.R. 199[RJR-Macdonald].
 
In order to be valid Criminal law, the law must be enacted for a valid public purpose (such as public peace, order, security, health, or morality) and must be in the proper form i.e. a prohibition coupled with a punishment: per Rand J. in Reference re: Dairy Industry Act (Canada) s. 5(a), [1949] S.C.R. 1 [the Dairy Reference].  Laws which do not have a valid public purpose may be invalid as Criminal law, but valid under a different head of power. For example, in the Dairy Reference the Supreme Court of Canada found that a prohibition against importation of margarine was not a valid Criminal law because it did not fulfill a public purpose, but that it was valid under the Federal Government jurisdiction to control foreign trade.
 
A law need not be in the Criminal Code, R.S.C. 1985, c. C-46 [the Criminal Code] in order to be a “Criminal offence”. For example, in R. v. Hydro Quebec, [1997] 3 S.C.R. 213 the majority of the Supreme Court of Canada found that various provisions of the Canadian Environmental Protection Act, R.S.C. 1985, c. 16 (4th Supp.) were validly enacted under the Criminal Law head of power. Similarly, in RJR-MacDonald the Supreme Court of Canada found that various sections of the Tobacco Products Control Act, S.C. 1988, c. 20 were validly enacted as Criminal law; although ultimately the provisions in that case were unconstitutional because they were an unjustifiable infringement on freedom of expression.
 
Only the Federal Government can create indictable offences, but an offence need not be in the Criminal Code to be an indictable offence. For example, many indictable offences are contained in the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
 
The foregoing indicates that an offence will be a Criminal offence, and so result in a Criminal record, only if Parliament relied on the Criminal Law head of power when creating the offence.
 
Acknowledging that the sometimes harsh consequences that flow from Criminal records are not appropriate for all breaches of federal statutes, Parliament passed the Contraventions Act, S.C. 1992, c. 47 [the Contraventions Act]. The purposes of the Contraventions Act are set out in s. 4:
 
4. The purposes of this Act are
(a) to provide a procedure for the prosecution of contraventions that reflects the distinction between criminal offences and regulatory offences and that is in addition to the procedures set out in the Criminal Code for the prosecution of contraventions and other offences; and
(b) to alter or abolish the consequences in law of being convicted of a contravention, in light of that distinction.
 
Section 8 of the Contraventions Act empowers the Governor in Council to designate certain breaches of federal enactments as contraventions offences. But, breach of a contravention is still an offence, just not a Criminal offence. This is confirmed by the definition of Contravention contained in s. 2 of the Contraventions Act: “contravention” means an offence that is created by an enactment and is designated as a contravention by regulation of the Governor in Council. Furthermore, s. 22 of the Contraventions Act confirms the effect of paying a fine issued for a contravention:
 
Effect of payment
22(2) Payment of the total amount under subsection (1) constitutes a plea of guilty and endorsement of payment on the ticket constitutes a conviction and the imposition of that amount.
 
However, as noted, the conviction is not for a Criminal offence, but just for “an offence”. This is expressly set out in s. 63 of the statute:
 
No criminal record
63. Except in respect of a conviction for a contravention that is entered after a trial on an indictment,
(a) a person who has been convicted of a contravention has not been convicted of a criminal offence; and
(b) a contravention does not constitute an offence for the purposes of the Criminal Records Act.
 
The effect of convictions for federal contraventions in the employment context is discussed below.
 
Provincial government legislation
A law may look like a Criminal law, but actually be a valid provincial offence enacted under s. 92 of the Constitution Act 1867. For example, in AG Canada v. Dupond, [1978] 2 S.C.R. 770 the Supreme Court of Canada upheld a Montreal bylaw that prohibited parades and gatherings. Although the bylaw contained a prohibition coupled with a punishment, and therefore looked like Criminal law, the majority of the Supreme Court of Canada found the bylaw to be a regulation of “a merely local or private nature in the province”, and so upheld it under s. 92(16) of the Constitution Act 1867. But, even if a provincial law is similar in form to a Criminal law, by definition it cannot be a Criminal Law because it was not passed by the federal Parliament, and is therefore simply an offence.
 
Many provinces have offence legislation of general application which define when breaches of provincial statutes will be offences. For example, s. 5 of the British Columbia Offence Act, R.S.B.C. 1996, c. 338 [the Offence Act] says:
 
A person who contravenes [a British Columbia] enactment by doing an act that it forbids, or omitting to do an act that it requires to be done, commits an offence against the enactment.
 
Therefore, unless noted otherwise in the particular statute, breach of any British Columbia enactment is an offence and, as noted by s. 2 of the Offence Act, is “punishable on summary conviction”. Furthermore, s. 1 of the Interpretation Act, R.S.B.C. 1996, c. 238 [the Interpretation Act] says that “‘enactment’ means an Act or a regulation or a portion of an Act or regulation”.  Therefore, regulations have the force of statute and unless noted otherwise, breach of a British Columbia regulation is an offence. This is consistent with s. 41(1)(e) of the Interpretation Act which anticipates offences being created by regulation. 
 
The foregoing indicates that it is a provincial offence, punishable on summary conviction, to breach any provincial statute, unless the statute states that the Offence Act does not apply to it. Many provincial statutes do state that s. 5 of the Offence Act does not apply to them: see for example s. 9.1 of the Tresspass Act, R.S.B.C. 1996, c.462 and s. 89 of the Adoption Act, R.S.B.C. 1996, c. 5. If the provincial statute excludes application of the Offence Act, then breach of the statute is not an offence unless the statute itself declares it to be so. For example, s. 125 of the Employment Standards Act, R.S.B.C. 1996, c. 113 excludes application of s. 5 of the Offence Act, but then the Employment Standards Act itself states that it is an offence to breach certain of its provisions. If breach of the statute is not an offence, the consequences of punishment will be limited to payment of a fine or other measures the statute provides for.  
 
The Offence Act anticipates convictions for British Columbia offences by way of “violation tickets”. Sections 11, 13, and 14(3) of the Offence Act combined confirm that proceedings may be commenced by issuance of a violation ticket i.e. this constitutes laying of an information even though the violation ticket is not sworn.  
 
The combined effect of ss. 14 to 17 of the Offence Act is as follows:
o       Violation tickets may be issued by “enforcement officers”; as defined in s.1 of the Offence Act: s. 14.
o       If the violation ticket is partially or fully paid, or the person issued with the ticket fails to dispute the ticket, the person issued with the ticket is deemed to have pleaded guilty to the alleged contravention. 
o       The person who pays the violation ticket is considered to have been convicted of the contravention and generally no record of the conviction need be made for the conviction to take effect: s. 17(1).
 
Therefore, when a violation ticket is issued, unless the underlying contravention is excluded from the application of s. 5 of the Offence Act, the person paying the violation ticket will then have been “convicted of an offence”, albeit a provincial one.
 
Interestingly, the Motor Vehicle Act,R.S.B.C. 1996, c. 318[Motor Vehicle Act] does not exclude operation of s. 5 of the Offence Act. On the contrary, it adopts, for certain purposes, the Offence Act definitions of “violation ticket” [see s. 148.1(4), (6)] and “enforcement officer” [see s. 83.2(1)]. Therefore, a person who pays a speeding fine after being charged by way of violation ticket [s. 148.1(4)] for speeding contrary to s. 140 of the Motor Vehicle Act would have been convicted of a provincial offence.
 
However, not all breaches of bylaws will be offences. For example, s. 2(2) of the Local Government Bylaw Notice Enforcement Act, S.B.C. 2003, c. 60 states that in certain circumstances “local government may deal with the contravention of a bylaw by bylaw notice”, and s. 27 of the statute states that “[t]he Offence Act does not apply in respect of a bylaw contravention if a bylaw notice is issued in respect of the contravention”.
 
Therefore, in every case one must establish whether the Offence Act applies to the particular provision of the statute, regulation, or bylaw breached to determine whether admitting guilt will result in conviction for an offence.
 
Summary of the consequences of the division of legislative powers regarding offences
The following conclusions emerge from the above:
o       Conviction for a federal offence only yields a “Criminal record” if Parliament relied on the Criminal Law head of power in s. 91(27) of the Constitution Act 1867 when creating the offence.
o       Conviction under a federal statute may result in a Criminal record even if the offence is not contained in the Criminal Code.
o       All indictable offence are Criminal offences and so convictions result in Criminal records.
o       Conviction of a provincial offence does not yield a “Criminal record”.
o       Conviction for contravention of a British Columbia statute generally results in a “conviction for an offence punishable on summary conviction”.
o       Admitting having breached a provincial regulation or bylaw may result in a conviction for an offence.
 
While the above discussion draws distinctions between Criminal and other offences, it will be seen that employment or other application forms do not always appreciate these technical differences. Some may ask whether the applicant has a criminal record, others, perhaps without realizing the distinction, may ask whether the applicant has ever been convicted of an offence. This makes it difficult for counsel to advise clients on the implications of admitting guilt, and means that legal advice may be necessary before persons who have admitted contravening statutes or regulations can fill out various application forms.  
 
Dispositions that may result from being charged with an offence:
This section of the article briefly outlines the different dispositions and consequences that typically follow a finding of, or admission of, guilt.
 
Conviction of indictable offence
Only Parliament can create indictable offences and relies on the Criminal Law head of power when doing so. Therefore, conviction for an indictable offence results in a “Criminal record”.  
 
Possible sentences for persons convicted of indictable offences include jail, a suspended sentence, a conditional sentence order, fine, probation, or some combination of these.
 
Conviction of summary conviction offence
Parliament and the provincial legislatures have jurisdiction to create summary conviction offences. Conviction for a summary conviction offence will only result in a “Criminal record” if the offence was created by Parliament under the criminal law head of power.
 
Possible sentences for persons convicted of summary conviction offences include jail, suspended sentence, conditional sentence order, fine, probation, or some combination of these.
 
Conditional discharge
A conditional discharge is an alternative to a conviction. Section 730(1) of the Criminal Code says that after a guilty plea or a finding of guilt, the court may “instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order.”
 
Section 730(3) states that after a discharge has been ordered under s. 730(1) the offender shall be deemed not to have been convicted of the offence except that the offender and the Attorney General can still appeal and the offender can plead autrefois convict on a subsequent charge relating to the offence.
 
Section 730(1) authorises the court to attach probation conditions to its order where it grants a conditional discharge. Under s. 732.1(2) of the Criminal Code, compulsory terms of the probation order are that the offender:
  1. keep the peace and be of good behaviour;
  2. appear before the court when required to do so by the court;
  3. notify the court or the probation officer in advance of any change of name or address; and
  4. promptly notify the court or the probation officer of any change of employment or occupation.
The court can specify any length of probation (Criminal Code, s. 732.1(4)) and all conditional discharges will necessarily involve probation of some duration.   
 
If an accused bound by a probation order after having received a conditional discharge is convicted of an offence, including the offence of breach of probation (Criminal Code, s. 733.1), the court may retract the conditional discharge and sentence the accused for the crime the conditional discharge was granted for: Criminal Code, s. 730(4).
 
Because a person who receives a conditional discharge is deemed to not have been convicted, if asked whether they have ever been convicted of an offence they an answer “no”. But, if asked, they would have to say they have been charged with an offence, and that they have been on probation.
 
Absolute discharge
Section 730(1) of the Criminal Code says that after a guilty plea or a finding of guilt, the court may “instead of convicting the accused, by order direct that the accused be discharged absolutely…”. An absolute discharge is similar to a conditional discharge, but is granted without probation conditions. Like a conditional discharge, an absolute discharge is deemed to not be a conviction: s. 730(3).
 
Because a person who receives an absolute discharge is deemed to not have been convicted, if asked whether they have ever been convicted of an offence they can answer “no”. But, if asked, they would have to say they have been charged with an offence.
 
Adult Alternative measures (AAM)
AAM is sanctioned under s. 717 of the Criminal Code.AAM is also known as “diversion” because the accused is diverted out of the regular criminal justice system. A defendant, typically one without a criminal record, who admits responsibility in relation to an offence of a minor nature, such as shoplifting, can be diverted out of the criminal justice system and given an alternative program to complete, such as community work service.
 
It is common practice for the Crown to charge defendants before considering them for AAM. This is done because of the six month limitation period for summary conviction offences (Criminal Code, s. 786(2)) which the Crown does not want to inadvertently miss. Therefore, a defendant who is diverted into the AAM program would likely have been “charged” with an offence, but would not have been convicted of an offence and would not have been on probation.
 
Peace Bond (s. 810)
A peace bond is a special preventative process in which no plea is entered. The matter is heard by a justice of a summary conviction court by way of application. The hearing is not a trial, no formal charge is laid, and the proceeding is not a formal criminal prosecution: 
 
[Section 810] does not create an offence, for example a criminal offence, nor does it result in a conviction or a sentence like other criminal offences. This section is designed not to punish but to prevent crime.
(R. v. Schaffner, 2002 BCPC 397 at para. 3).
 
A s. 810 proceeding is commenced by an informant laying an information before a justice. The informant must swear that they, or the person on whose behalf they are swearing the information, fear on reasonable grounds that another person will:
  1. cause personal injury to him/her or to his/her child, spouse or common law partner; or
  2. damage his/her property.
 
When a peace bond is issued, the person bound by it will be under a twelve month recognizance to keep the peace and be of good behaviour. Additional conditions of recognisance may also be imposed. A person bound by a peace bond has not been convicted of an offence and will not have a Criminal record.
 
Because s. 810 does not create an offence, and being bound by a peace bond is not a conviction, a person who has bound by a peace bond can answer “no” if they are asked whether they have ever been charged with or convicted of an offence. Since, according to s. 731 of the Criminal Code, probation orders are only made when courts enter convictions or discharges, a person who has been bound by a s. 810 peace bond can answer “no” if they are asked whether they have ever been on probation.
 
Legislation dealing with convictions in the employment law context
There is no protection against discrimination at common law: Seneca College v. Bhadauria, [1981] 2 S.C.R. 181. Therefore, absent legislation preventing employers from discriminating against job applicants, employers are free to discriminate as they wish.
 
Certain provincial and federal statutes protect against discrimination on the basis of past charges or convictions. Other provincial and federal statutes do quite the opposite and require disclosure of past convictions in certain circumstances. The discussion below outlines the relevant provisions of various provincial and federal statutes which either prohibit discrimination on the basis of past convictions, or require disclosure of past convictions in the employment context.
 
British Columbia Legislation
The British Columbia Human Rights Code
The Human rights Code, R.S.B.C. 1996, c. 210 (the BC Code) applies to all organizations in the public and private sector in British Columbia. Furthermore, if there is any discrepancy between the BC Code and other provincial legislation, the BC Code prevails unless the other enactment expressly overrides the Code: Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145 at 157-158 [Heerspink]. Further, one cannot contract out of the requirements of the Code: Heerspink
 
Sections 13 and 14 of the BC Code are relevant to discrimination in the employment context:
 
13 (1) A person must not         
(a) refuse to employ or refuse to 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.
 
14 A trade union, employers' organization or occupational association must not
(a) exclude any person from membership,         
(b) expel or suspend any member, or   
(c) discriminate against any person or member  
… because that person or member has been convicted of a criminal or summary conviction offence that is unrelated to the membership or intended membership.
 
It is important to note at the outset that these provisions do not prohibit enquires regarding previous convictions, they only prohibit using information obtained from such enquiries in a discriminatory manner. Therefore unless even the worst criminal conviction would be completely irrelevant to the position on offer, which would seldom be the case, employers can ask whether applicants have ever been convicted of an offence. But having asked and been told the nature of the conviction, the employer cannot allow the record to count against the applicant if the conviction is “unrelated to” the position applied for.
 
The meaning of “unrelated” was considered in McCartney v. Woodward Stores Ltd. (1982), 3 C.H.R.R. D/1113, aff’d (1983), 43 B.C.L.R. 314 (S.C.). In that case, a store employee was terminated upon the employer discovering a previously undisclosed, eight year old, conviction for shoplifting. The British Columbia Human Rights Board enunciated the following guidelines for employers when considering the relevance of prior convictions:
 
1.      Does the behaviour for which the charge was laid, if repeated, pose any threat to the employer’s ability to carry on its business safely and efficiently?
2.      What were the circumstances of the charge and the particulars of the offence involved e.g. how old was the individual when the events in question occurred, were there any extenuating circumstances etc.?
3.      How much time has elapsed between the charge and the employment decision? What has the individual done during that period of time? Has he shown any tendencies to repeat the kind of behaviour for which he was charged? Has he shown a firm intention to rehabilitate himself?
 
In applying these factors the employer must consider whether the employee’s actual criminal record relates to the actual job in question. Applying these factors in the McCartney case, the board held that the termination of employment was without reasonable cause.
 
In Thompson v. Granny’s Fried Chicken Ltd. (1989), 11 C.H.R.R. D/477 a cook was fired when the employer found that he had a 21 year old conviction for armed robbery for which he spent two years in jail. The B.C. Human Rights Council found that the employer gave insufficient consideration to the considerable evidence of rehabilitation and awarded the employee compensation for hurt feelings.
 
In Iwanchuck v. British Columbia (Ministry of Human Resources) (1987), 9 C.H.R.R. D/4670 (B.C.C.H.R.) an applicant for a social worker position disclosed he had a criminal conviction, but did not provide further details. The Ministry of Human Resources refused employment based on the mere existence of the criminal record without inquiring as to the nature of that record. The Human Rights Council found discrimination because the criminal record turned out to be wholly unrelated to the position applied for. The Council noted that without knowing the nature of the record the Ministry could not have considered the factors set out in McCartney. 
 
Similarly in Blevins v. Christine’s Food Supplies Ltd. (1991), 15 C.H.R.R. D/250, where a catering truck driver was dismissed because of a conviction for drug possession, discrimination was found because the employer did not inquire into the circumstances of the conviction and so could not have applied the McCartney factors.
 
In Griffiths v. Coquitlam (District) (1988), 10 C.H.R.R. D/5852 (B.C.C.H.R.) a pattern of incidents of indecent exposure was found by the council to be sufficient justification for terminating the employment of a firefighter. The council found that the repeated behaviour was a legitimate concern and was related to the highly visible public service position held by the firefighter. This case indicates that public servants are held to a high moral standard.
 
In Mans v. Council of Licensed Practical Nurses (British Columbia) (1990), 14 C.H.R.R. D/221 the complainant was refused a nursing licence because of 12 year old shoplifting conviction and a seven year old possession of a weapon conviction. The British Columbia Supreme Court (1991), 20 C.H.R.R. D/173, [1991] B.C.J. No. 2666 (QL), aff’d (1993) 77 B.C.L.R. (2d) 47 (C.A.) upheld the finding that the convictions were unrelated to the intended employment given their age and the complainant’s efforts to rehabilitate and educate herself since the convictions. The Court held that the Human Rights Tribunal did have jurisdiction over the decisions of the B.C. Council of Licensed Practical Nurses.
 
In McLaughlin v. Fletcher Challenge Canada Ltd. (2000), 81 B.C.L.R. (3d) 195 (C.A.) McLaughlin was dismissed from his job when he failed to attend work because he was serving a jail sentence. The British Columbia Court of Appeal held that “has been convicted” refers to past criminal convictions for which the sentence has already been served. The court held that, in that case, McLaughlin's employment was not terminated because of his conviction, but because he failed to attend work.  The effect of this decision is that employers are not under a duty to accommodate employees who have to spend time in jail by granting a leaves of absence. Such absence is not “unrelated” to employment, which is a necessary condition for s. 13(1) protection. 
 
In Dore v. Crown Tire Service Ltd. (1989), 10 C.H.R.R. D/5433 (B.C. Human Rights Council) it was held that “conviction” in s. 13(1) includes charges i.e. an employer cannot discriminate on the basis of criminal charges unrelated to the intended employment. Conviction was read to include charges because to do otherwise would be contrary to the fundamental principle of the presumption of innocence. However, in Salter v. Peace RiverSouthSchool District No. 59 (1989), 10 C.H.R.R. D/6150 (B.C.C.H.R.)no discrimination was found when a carpenter was refused employment by school board because of a charge for trafficking in marijuana. The charge was found to be sufficiently related to the position applied for and so the school board was justified in using the charge as a basis for refusing employment. 
 
In B.A.O. v. New Westminser (City) (1989), 11 C.H.R.R. D/400 (B.C. Human Rights Council) the City of New Westminster refused to grant a taxi license to an applicant because of his criminal history. The Human Rights Council found that the “pattern of charges” was so “related” to the particular field of employment that it would affect the employment relationship. Accordingly, the City was justified in refusing to grant the taxi license to the complainant. In fact the applicant in this case had been charged, and in some cases convicted, of a series of crimes including possession of marijuana, theft, damage to property, manslaughter, assault, and assorted traffic violations. The council determined that the individuals propensity for violence, volatile personality, and poor driving record were a bona fide consideration in refusing a taxi permit.  
 
Section 13(1) of the BC Code also provides protection against discrimination on the basis of “perceived criminal convictions”. In Korthe v. Hillstrom Oil Co. Ltd. (1997), 31 C.H.R.R. D/82 an employee was fired on reports, relayed by a customer, that she may have been convicted sometime in the past. In fact, she had no convictions at all. The Board held that given the broad remedial construction of the Human Rights Code, “convictions”, in what is now s.13 of the Code, should be taken to include “perceived criminal convictions”.
 
Based on the foregoing, the effect of s. 13(1) of the BC Code can be summarised as follows:
o       One cannot discriminate on the basis of a criminal conviction that is not related to the intended employment.
o       “Conviction” is taken to include “charges” and “perceived criminal convictions” but, as for convictions, if an actual charge is sufficiently related to the intended employment, the employer may be justified in refusing employment on the basis of the previous charge. 
o       Employers do not have to grant unpaid leave to allow workers to serve jail sentences, but can dismiss them if they fail to attend work.
o       The prohibition against discrimination does not mean that an employer cannot enquire as to past convictions or charges, it just means that once the employer has such information, they cannot use it in a discriminatory way.
 
Of course the critical issue under the BC Code is whether a person who discloses a conviction on the request of an employer and then is not picked for the job will be able to prove that he or she was refused the job for discriminatory reasons. Many factors are considered when selecting employees and in many instances employers will be able to point to non-discriminatory reasons for making the selection they did. This is considered further below when discussing the Canadian Human Rights Act, R.S.C. 1985, c. H-6.
 
Freedom of Information and Protection of Privacy Act.
The Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 [FOIPPA] governs the conduct of the public sector in British Columbia, e.g. ministries, universities and hospitals etc., when collecting and disclosing information.
 
Sections 4 to 25 of the FOIPPA regulate who may apply to public bodies for disclosure of information held by them, and limit what information may be released. Sections 26 to 36 of the FOIPPA deal with how public bodies may collect and use personal information. In particular, s. 22(1) states that the head of a public body must refuse to disclose personal information if the disclosure would be an unreasonable invasion of a third party's personal privacy. Section 33.1 allows personal information to be released if the individual the information is about has identified the information and consented to its disclosure. These provisions prevent the police, or other provincial government organizations, from releasing criminal record information to third persons, such as prospective employers, unless the person applying for the job has consented. 
 
Personal Information Protection Act
Subject to limited exceptions, the Personal Information Protection Act, S.B.C. 2003, c. 63 [PIPA] governs the conduct of all organizations in British Columbia. Therefore, the PIPA regulates how the private sector (e.g. private businesses, charities, associations and labour organizations) in British Columbia may deal with the private information of employees and prospective employees. Sections 10 – 22 of the PIPA deal with how private personal information may be collected and used.
 
Section 6 of the PIPA sets out the general rule that organizations may not collect, use, or disclose personal information about a person unless that person consents or the statute authorizes it.  Section 10 of the PIPA states that when collecting personal information from a person, the organization must explain why it seeks the information and answer any questions the person has about the collection. Furthermore, s. 11 of the PIPA states that, subject to certain exceptions, an organization may only collect personal information that a reasonable person would consider appropriate in the circumstances, and that fulfill the purposes for collecting information which the organization is required to explain under s. 10.
 
The above confirms that employers can only ask job applicants whether they have a criminal record if some type of criminal record would be relevant to whether the applicant was suitable for the job. Unless, the employer can demonstrate that it has a reasonable need for the background information (in the context of the particular job being offered) then the demand for that information would be unlawful. However, as noted above, unless even the worst criminal conviction would be completely irrelevant to the intended employment, which would seldom be the case, an employer can ask an applicant whether he or she has ever been convicted of an offence.
 
Bonding is one issue related to criminal history that is often relevant to suitability for employment. For certain jobs, employees are required to be bondable. For example, if a business is going to have a commercial cleaning company come in and clean its offices in the evenings when all the office employees have gone home, the business will normally require the cleaning company to have a fidelity bond from an insurance company. In that situation, the fidelity bond would cover any losses arising from theft or other wrongdoing by the cleaning company employees when they are in the offices at night when there is no-one else around. Many jobs, apart from being a cleaner for a commercial cleaning company, require fidelity bonds e.g. private security guards, couriers, truck drivers etc.
 
Insurance companies that issue fidelity bonds would obviously be concerned about the insured employer hiring employees with criminal convictions which indicate a history of dishonesty. Some publications suggest that it is acceptable for employers to ask job applicants “are you bondable?”. This question is fine for persons with no convictions because they will certainly be bondable. But, is a difficult question for persons with convictions to answer because whether or not they are bondable will depend on the standards used by the insurance company which will be granting the fidelity bond, and so will vary from one insurance company to the next. Therefore, an applicant with a conviction who is asked whether they are bondable may simply have to explain the nature of the conviction such that the employer can check whether such convictions are permitted under the fidelity insurance contract it holds. Alternatively, the applicant could request the name of the insurance agency that provides the fidelity bond and then, without revealing details to the employer, go directly to the agency to determine whether he or she is bondable.
 
Questions related to bondability would certainly be acceptable under the PIPA if the clients of the employer required the employer to hold a fidelity bond. 
 
The Criminal Records Review Act
The Criminal Records Review Act, R.S.B.C. 1996, c. 86 (the Criminal Records Review Act) is a British Columbia statute that is important to defendants who work with children, or who intend to do so. Section 2 of the Criminal Records Review Act states that its purpose is to help prevent the physical and sexual abuse of children by requiring individuals to whom the statute applies to undergo criminal record checks.
 
The definition of employer in s. 1 of the Criminal Records Review Act establishes that the statute applies to government and bodies affiliated with the government, including, schools, universities, and hospitals.
 
Under s. 9, when an individual is offered employment that involves working with children, the individual must provide a criminal record check authorization to the employer. But the Criminal Records Review Act does not only apply only to job applicants, it also applies to persons who already hold jobs in which they deal with children: s. 12(1) states that if an employee who works with children is charged with or convicted of a relevant offence subsequent to a criminal record check, the employee must promptly report the charge or conviction to the employer and provide to the employer a criminal record check authorization for a further criminal record check.
 
When a criminal record check form is submitted under the Criminal Records Review Act, the registrar checks to see whether the employee or job applicant has a conviction for a “relevant” offence: s. 4(2).
 
Apart from the obvious offences which one would expect to be “relevant”, such as Child Pornography offences under s. 163.1 of the Criminal Code, the list of relevant offences includes:
o       uttering threats (s. 264.1 of the Criminal Code);
o       criminal harassment (s. 264 of the Criminal Code);
o       assault (s. 266 of the Criminal Code); and
o       peace bond where injury or damage feared (s. 810 of the Criminal Code). 
 
If an employee or job applicant is a person with a conviction for a “relevant” offence, then the registrar must refer the matter to the deputy registrar to determine whether the conviction or outstanding charge indicates that the individual presents a risk of physical or sexual abuse to children, and must notify the individual and the employer: s. 4(2).
 
“Conviction” for a “relevant” offence the Criminal Records Review Act includes orders under section 810 of the Criminal Code: s. 1. Therefore, even though according to the Criminal Code a peace bond is not a conviction, it is so for the purposes of the Criminal Records Review Act.
 
The definition of “conviction” under s. 1 of the Criminal Records Review Act also includes conditional discharges. Therefore, even though conditional discharges are deemed by s. 730 of the Criminal Code to not to be convictions, they are convictions for the purposes of the Criminal Records Review Act, although this will only affect the person “convicted” if the conditional discharge was for a “relevant” offence.
 
Therefore, for persons who work with, or plan to work with, children in British Columbia, a conditional discharge (depending on the offence they were charged with) or a peace bond (if issued because injury or damage was feared) may have significant implications.
 
Work in certain professions will necessarily involve work with children. Accordingly, s. 13(1) of the Criminal Records Review Act requires all members of certain professional bodies to undergo criminal record checks. Affected professionals include Chiropractors, Dentists, Medical and Health Professionals, Optometrists, Podiatrists, Social Workers, Teachers: see Schedule 2 of the Criminal Records Review Act.
 
Professional body legislation
A number British Columbia statutes governing professional organisations allow those organisations to inquire into and reject applications of persons who have been convicted of indictable offences. The statutes typically also allow the organisations to suspend or dismiss members convicted of indictable offences. The following professional organisations are allowed to screen or dismiss persons convicted of indictable offences:
 
o       British Columbia Institute of Agrologists: s. 21(2) of the Agrologists Act, S.B.C. 2003 c. 13.
o       College of Applied Biology: s. 24(2) of the College of Applied Biolity Act , S.B.C. 2002, c. 68.
o       The Association of British Columbia Forest Professionals: s. 9(2) of the Foresters Act, S.B.C. 2003, c. 19.
o       The Law Society: s. 36(h) of the Legal Profession Act, S.B.C. 1998, c. 9.
o       College of Health Professionals: ss. 20 and 33 of the Health Professionals Act, R.S.B.C. 1996, c. 183.
o       College of Physicians and Surgeons of British Columbia: s. 50 of the Medical Practitioners Act, R.S.B.C. 1996, c. 285.
o       Society of Notaries Public of British Columbia: s.37 of the Notaries Act, R.S.B.C. 1996, c. 334.
o       College of Pharmacists: s. 58 of the Pharmacists, Pharmacy Operations and Drug Scheduling Act, R.S.B.C. 1996, c. 363.
o       The British Columbia Veterinary Medical Association: s. 14(4) of the Veterinarians Act R.S.B.C. 1996, c. 476.
 
Other British Columbia statutes dealing with the consequences of criminal convictions for professionals include the following:
 
1.      Section 44 of the Architects Act, R.S.B.C. 1996, c. 17 allows the Architectural Institute of British Columbia to refuse to admit, or to dismiss, any person who has been convicted “of an offence”: see s. 44(1) of the Architects Act, R.S.B.C. 1996, c. 17. However, under s. 44(4), the Institute should not refuse to admit or dismiss a person if the offence is, in the opinion of the council, not of a nature such as should disqualify the person from practising as an architect.
2.      The Engineers and Geoscientists Act, R.S.B.C. 1996, c. 116 states that the Association of Professional Engineers and Geoscientists may refuse to licence a person who has been convicted in Canada or elsewhere of an offence that: if committed in British Columbia, would be an offence under provincial or federal legislation, and is of such nature that the person is unsuitable for registration: s. 13(2).
3.      The Registrar appointed under the Private Investigators and Security Agencies Act, R.S.B.C 1996, c. 374 may cancel a “security business licences” of a person convicted of an indictable or summary conviction offence: ss. 8, 16. Similarly, the Registrar may refuse to issue a security business licence to a person who has been convicted of an indictable or summary conviction offence: ss. 8, 16.
4.      On application to the British Columbia Supreme Court, a trustee who holds land or stock may be removed as trustee after being convicted of an indictable offence: s. 35(1) of the Trustee Act, R.S.B.C. 1996, s. 464.
5.      Under the Dentists Act, R.S.B.C. 1996, c. 94 the College of Dental Surgeons refuse to admit or dismiss any member who commits an offence that would, if committed by a member, constitute unprofessional conduct or conduct unbecoming: ss. 26 and 43.
6.      Under s. 60(4) of the Land Surveyors Act, R.S.B.C. 1996, c. 248: “The [Association of Land Surveyors] may expel from membership, or suspend for a period it thinks fit, a member convicted of a criminal offence which, in the board's opinion, involves moral turpitude”.
7.      Under s. 20(3) of the Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267, the General Manager, who is appointed under the Public Service Act, R.S.B.C. 1996, c. 385 must cancel the licence of a person who has “been convicted of a prescribed number of prescribed offences under the laws of Canada or British Columbia”.
8.      Under s. 11.3(2)(d) of the Liquor Distribution Act, R.S.B.C. 1996, c. 268 the General Manager, who is appointed under the Public Service Act, R.S.B.C. 1996, c. 385 may refuse to approve a liquor distribution license of a person who has “been convicted of an offence, inside or outside British Columbia, that in the opinion of the general manager calls into question the honesty or integrity of the applicant.”
9.      Under s. 10(d) of the Real Estate Services Act, S.B.C. 2004, c. 42 applicants for a licence to provide real estate services must satisfy the real estate council that they have “not been convicted of an offence for a reason that reveals the applicant as unfit to be a licensee.”
 
The case of Mans v. Council of Licensed Practical Nurses (British Columbia) (1991), 20 C.H.R.R. D/173 (B.C.S.C.) aff’d (1993), 20 C.HR.R. D/177, discussed above, is authority for the proposition that the Human Rights Tribunal does have jurisdiction to review the decisions of professional regulatory bodies.
 
Federal legislation
The Criminal Records Act
The Criminal Records Act, R.S.C 1985, c. C-47 (the Criminal Records Act) is a federal statute that, in combination with the Canadian Human Rights Act, R.S.C. 1985, c. H-6 [the CHRA], provides persons who have received pardons some protection against discrimination in the employment context.
 
Pardons may be granted under two federal statutes: the Criminal Records Act, R.S.C. 1985, c. 12 (the Criminal Records Act), and the Criminal Code, R.S.C. 1985, C. C-46 (the Criminal Code). Generally, pardons temper, but do not eliminate, the effects of criminal convictions. Obtaining a pardon does not alter the fact that the person has been convicted of an offence and therefore has a criminal record. Generally, a pardoned person cannot completely deny the existence of the conviction and answer “no” if asked whether they have ever been convicted. A pardon merely allows the pardoned person to say that they have since received a pardon which proves that they have since been a law abiding person. 
 
Section 8 the Criminal Records Act provides a limited exception to the rule that a pardoned person cannot deny the existence of a previous conviction. This exception applies in the employment context and prohibits certain bodies from requiring applicants to disclose that they have received convictions for which pardons have been granted. The exception applies when the applicant applies for:
(a)    employment in any department as defined in s. 2 of the Financial Administration Act;
(b)   employment by any Crown corporation as defined in s. 83 of the Financial Administration Act;
(c)    enrolment in the Canadian Forces; or
(d)   employment on or in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament.
 
In these contexts, the employer cannot ask the job applicant “have you ever been convicted of an offence, including an offence that has since been removed from the record”. However, as is evident from the list above, this protection applies in limited situations only.
 
The Canadian Human Rights Act
Section 2 of the CHRA states that the purpose of the statute is to “give effect…to the principle that all individuals should have an opportunity…to make for themselves the lives that they are able and wish to have…without being hindered in or prevented from doing so by discriminatory practices based on…conviction for an offence for which a pardon has been granted.”
 
Section 3(1) of the CHRA expressly states that “conviction for which a pardon has been granted” is a prohibited ground of discrimination and ss. 7 – 10 provide protection from discrimination “on prohibited grounds of discrimination” in the employment context:
 
Employment
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
 
Employment applications, advertisements
8. It is a discriminatory practice
(a) to use or circulate any form of application for employment, or
(b) in connection with employment or prospective employment, to publish any advertisement or to make any written or oral inquiry
that expresses or implies any limitation, specification or preference based on a prohibited ground of discrimination.
 
Employee organizations
9. (1) It is a discriminatory practice for an employee organization on a prohibited ground of discrimination
(a) to exclude an individual from full membership in the organization;
(b) to expel or suspend a member of the organization; or
(c) to limit, segregate, classify or otherwise act in relation to an individual in a way that would deprive the individual of employment opportunities, or limit employment opportunities or otherwise adversely affect the status of the individual, where the individual is a member of the organization or where any of the obligations of the organization pursuant to a collective agreement relate to the individual.
 
Discriminatory policy or practice
10. It is a discriminatory practice for an employer, employee organization or employer organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
 
Thus, pardoned persons are protected from discrimination in the employment context, but the CHRA does not provide any protection for persons who have not received pardons. Furthermore, pardoned persons may, as discussed above in relation to the BC Code, find it difficult to prove that a job was refused for discriminatory reasons.
 
The case of Rivers v. Squamish Indian Band (1994), 94 C.L.L.C. 17012 (Cdn. Human Rights Trib.) dealt with discrimination on the basis of family status and national and ethnic origin and considered the evidentiary burden to met when making a claim of discrimination. The framework set out in that case indicates that to establish a prima facie case of discrimination on the basis of a criminal conviction for which a pardon has been granted, a complainant would have to prove that:
  1. the complainant was qualified for the position applied for;
  2. the complainant was not hired; and
  3. the person hired for the position was no better qualified than the complainant, but was not a person who had been convicted of an offence (for which a pardon had been granted). 
The onus would then move to the employer to rebut the presumption that discrimination occurred. The employer may do this by presenting an explanation of events which is consistent the conclusion that discrimination did not occur.
 
Pardoned persons do not receive absolute protection against discrimination: s. 15 of the CHRA provides exceptions to the protections granted in ss. 7-10 which allow discrimination where it is justified:
 
Exceptions
15. (1) It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement…
 
Therefore, even pardoned persons may be discriminated against on the basis of past convictions. This may occur, for example, where the pardoned person is not bondable because the bonding company does not consider the risk of mischief to be great despite a pardon having been granted.
 
The Privacy Act
The Privacy Act, R.S.C. 1985, c. P-21 [Privacy Act] provides protection from disclosure of private information in the federal context. Section s. 3 of the Privacy Act defines personal information as “information about an identifiable individual that is recorded in any form including … (b) information relating to the education or the medical, criminal or employment history of the individual …”
 
The Privacy Act applies to federal government institutions that collect or provide information. Sections 4 and 5 of the statute regulate how information may be collected, and ss. 7 and 8 state that private information shall not, subject to limited exceptions, be used or disclosed without the consent of the individual the information relates to. These provisions prevent federal government organizations from releasing criminal record information to third persons, such as prospective employers, unless the person applying for the job has consented. 
 
Contraventions Act
The Contraventions Act, mentioned above, provides that federal offences specified by regulation to be contraventions are not Criminal offences and so do not result in Criminal records. Furthermore, s. 64 of the Contraventions Act contains similar wording to that in s. 8 of the Criminal Records Act, discussed above, and prevents employers from enquiring whether job applicants have convictions for contraventions in certain circumstances:
 
Applications for employment
64. Every one is guilty of an offence who uses or authorizes the use of an application form for or relating to any of the following matters that contains a question that by its terms requires the applicant to disclose a conviction for a contravention, other than a conviction entered after a trial on an indictment:
(a) employment in any department, as defined in section 2 of the Financial Administration Act;
(b) employment by any Crown corporation, as defined in subsection 83(1) of the Financial Administration Act;
(c) enrolment in the Canadian Forces; or
(d) employment on or in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament.
 
Again this protection is limited because it only relates to employment within the sectors specifically set out in the list above.  
 
Criminal Code
Obviously many provisions of the Criminal Code impose consequences for convictions i.e. the sentencing provisions. However, one provision of the criminal code which imposes particular consequences related employment is s. 750. That section states that a holder of Crown or other public office who is sentenced to two or more years in prison cannot resume such employment until the entire sentence, including probation, is completed. Further, under s. 750(3), any person convicted of fraud on the government (Criminal Code, s. 121), selling or purchasing office (Criminal Code, s. 124) or selling defective stores to Her Majesty (Criminal Code, s. 418) is prevented from entering into, or receiving any benefit under, any contract with Her Majesty until the Governor in Council agrees to restore those privileges.
 
Other areas in which persons with criminal records may be discriminated against
This article focuses on the consequences of criminal convictions in the employment context, the following merely identifies other areas in which criminal convictions may attract legal consequences.
 
Immigration law
Questions regarding past convictions are often asked in the immigration law context: e.g. when applying to immigrate to, or emigrate from, Canada; when permanent residents apply for citizenship; and when Canadian residents or citizens apply to visit other countries. Furthermore, under the Canadian Passport Order, SI/81-86 persons with Criminal convictions may be refused passports which will obviously limit their ability to travel (although convictions under the Contraventions Act are excluded from this penalty: see s. 65 of that statute).
 
Provision of public services
Although the BC Code protects against discrimination on the basis of past convictions in the employment context, it does not provide similar explicit protection in the contexts of the provision of public services, in the purchase of property, or tenancy. The BC Code does have anti-discrimination provisions dealing with those issues (see ss. 8-10), but past convictions are not listed as a prohibited ground of discrimination in respect of them.
 
In the federal context, the CHRA protects against discrimination with respect to accommodation, facilities and services on the basis of convictions for which pardons have been granted.
 
Jury duty
A person convicted within the previous five years of an offence for which the punishment could be a fine of more than $2,000, or imprisonment for one year or more, is disqualified from serving as a juror in British Columbia unless the person has been pardoned: s. 3(1) of the Jury Act, R.S.B.C. 1996, c. 242.
 
Conclusion
Admitting guilt to any breach of the law may attract negative consequences in the employment context. Even dispositions which are generally considered to be minor, such as peace bonds or conditional discharges, may be detrimental in the employment context, especially for persons wanting to work with children. It is important for defence counsel to become familiar with the many provincial and federal statutes that deal, directly or indirectly, with criminal records such that they can advise on the consequences a conviction will attract.