Criminal Record Discrimination by Employers and How a Pardon Can Help

Charter of Rights

Criminal Record Discrimination by Employers and How a Pardon Can Help

Employment is a crucial factor in preventing crime. A good, stable job provides not only income but also opportunities to learn skills, be productive, build self-esteem, and contribute to our communities. A quality workplace can be an environment of growth and connection — a place where we feel competent, valued, and part of something bigger than ourselves.

It’s no wonder that research has consistently shown that quality, stable employment is a powerful protective factor against criminal behaviour and re-offending. Likewise, it’s not surprising that unemployment is a significant risk factor for criminal activity and recidivism — especially when unemployment interacts with other risk factors like poverty, addiction, mental illness, or housing instability.

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The literature is clear that employment is one of the most effective social supports for reintegrating individuals into society and reducing subsequent criminal involvement. And yet, individuals with a criminal record face unique obstacles to securing employment.

The consequences of these obstacles can be severe. Many people find that their criminal record is an automatic barrier to certain jobs, even if their conviction is non-violent and unrelated to the requirements of the job. Prolonged spells of unemployment can lead to the erosion of skills, loss of networks, and feelings of alienation from the labour force.

In 2016, Public Safety Canada estimated that 3.8 million Canadians have a criminal record. This means that roughly one in ten Canadians has been convicted of an offence under a federal act — typically, a Criminal Code offence (provincial and municipal offences do not result in a record under the Criminal Records Act). Nearly 90 percent of these records remain open.

Most people do not reoffend. Indeed, many people hope that release from prison or completion of a sentence will mark the beginning of a transition to a more productive and pro-social life. The unfortunate reality is that this transition rarely goes smoothly. Individuals who have been involved with the criminal justice system often experience negative impacts from their criminal conviction long after they have fulfilled the requirements of their sentence. Some authors refer to these impacts as the collateral consequences of punishment.

Fortunately, for those who meet the requirements, a Pardon (can also be known as a “Record Suspension”, depending on the age of the applicant’s most recent offence) can help to dismantle many of the barriers to employment created by a criminal record. A Pardon removes a person’s criminal record from the publicly visible Canadian Police Information Centre (CPIC) database, meaning a search of CPIC will not show that the individual has a criminal record or a Pardon. In other words, a police criminal record requested by a potential employer will come back clear. This removes a significant barrier to quality employment. No longer will your criminal record mean automatic disqualification from a job prospect.

Perhaps even more significantly, a Pardon brings you under the protective umbrella of federal and provincial human rights law. The Canadian Human Rights Act prohibits discrimination by employers on the basis of a conviction for an offence for which a Pardon (or Record Suspension) has been granted.

The Canadian Human Rights Act applies to federal and federally regulated employers, including airlines, banks, Crown corporations, and the telecommunications industry. Under the Act, the Canadian Human Rights Commission is empowered to investigate and try to settle complaints of discrimination in employment that fall within federal jurisdiction. If the Commission believes a complaint has merit and cannot settle the matter, it can send it to the Canadian Human Rights Tribunal for further examination and, ultimately, adjudication.

Many of the provinces and territories have human rights legislation that includes similar protection against discrimination on the basis of a criminal record. For example, Ontario’s Human Rights Code prohibits discrimination on the basis of a record of offences, meaning employment decisions cannot be based on whether a person has been (a) convicted of and Pardoned for an offence under federal law, or (b) convicted under a provincial law. Employers in Ontario can only refuse to hire someone based on a record of offences if they can show that this is a reasonable and genuine qualification for the job. (An example might be refusing to hire a person to be a bus driver because that person has serious or repeated driving convictions under the provincial Highway Traffic Act.)

The Parole Board of Canada is the official federal agency that is responsible for ordering, refusing to order, and revoking Pardons. To be eligible for a Pardon, you must have completed all your sentences. This means you must first pay all fines, surcharges, costs, restitution, and compensation orders; complete all sentences of imprisonment and conditional sentences, including parole and statutory release; and complete any probation orders. After completing all sentences, you then must complete a waiting period. This can vary from three years to 10 years, depending on the date of your most recent criminal offence and the method of trial.

Some applicants are permanently ineligible for a Pardon (Record Suspension). You are ineligible if you have been convicted of a Schedule 1 offence which occurred on/after March 13, 2012 under the Criminal Records Act, or if you have been convicted of more than three indictable offences, each with a prison sentence of two years or more, again, on/after March 13, 2012.

A person who is eligible for a Pardon has already completed their sentence and repaid their debt to society; and yet, until a Pardon is granted, he or she will continue to face significant barriers and collateral consequences that go beyond the proportionate penalty initially set for the crime. A Pardon can provide some much needed relief from the continuing negative effects of a criminal record by removing barriers to employment — not to mention barriers in other domains, such as volunteer work, housing, adoption eligibility, and child custody.

Over 525,000 Pardons have been granted in Canada between 1970, the year when the Pardon process began, and 2018, the last year for which we have available data. The rate of application approval is over 92 percent.


About the Author
Chelsey Legge is a research analyst with Pardon Applications of Canada. An Ontario lawyer who graduated with honours from the top law school in Canada, Chelsey has contributed numerous articles to Rights Review, a monthly magazine run by the International Human Rights Program at the University of Toronto, Faculty of Law.

References
Berg, M.T. & Huebner, B.M. (2010). Reentry and the Ties that Bind: An Examination of Social Ties, Employment, and Recidivism. Justice Quarterly, vol. 28(2), 382-410. Available online: https://www.tandfonline.com/doi/abs/10.1080/07418825.2010.498383.
John Howard Society of Ontario. (2009). Crime and Unemployment: What’s the link? John Howard Society of Ontario Fact Sheet, Issue 24. Available online: https://johnhoward.on.ca/wp-content/uploads/2014/09/facts-24-crime-and-unemployment-whats-the-link-march-2009.pdf.
McAleese, S. & Latimer, C. (2017). “Reforming the Criminal Records Act.” John Howard Society of Canada. Online: https://johnhoward.ca/wp-content/uploads/2017/04/Criminal-Records-Act-Reform-Final.pdf.
Ontario Human Rights Commission. (n.d.). “Record of offences.” Online: http://www.ohrc.on.ca/en/code_grounds/record_of_offences.
Public Safety Canada. (2017). Corrections and Conditional Release Statistical Overview. Ottawa: Public Works and Government Services Canada. Available online: https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ccrso-2016/ccrso-2016-en.pdf.
Public Safety Canada. (2019). Corrections and Conditional Release Statistical Overview.  Ottawa: Public Works and Government Services Canada. Available online:  https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ccrso-2018/ccrso-2018-en.pdf.

 

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