McKenzie v. Ontario (Government Services), 2010 HRTO 1186

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cam McKenzie

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Ministry of Government Services

Respondent

DECISION

Adjudicator: Alison Renton

Date: May 26, 2010

Citation: 2010 HRTO 1186

Indexed as: McKenzie v. Ontario (Government Services)

INTRODUCTION

1The applicant filed an Application on August 1, 2009 under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code") alleging the respondent discriminated against him on the basis of record of offences in respect of employment or contracts by collecting and considering information about criminal charges for which he received a discharge. Specifically, the applicant raised concerns with application forms, job interviews, and security screening used by the respondent, the Ontario government, its agencies and firms to which it has contracted out security screening services, which use or include questions about "discharged legal matters".

2The respondent filed a Response on December 2, 2009. In the Response, amongst other issues raised, the respondent questioned whether the applicant has a record of offences within the meaning of the Code to bring himself within the jurisdiction of the Tribunal.

3The Tribunal issued an Interim Decision, 2010 HRTO 238, which required the applicant to provide submissions on whether he has a "record of offences" as defined in section 10 of the Code. The Tribunal has now received the applicant's submissions.

Applicant's Submissions

4The applicant alleges that the respondent performed a background check and then called him and interrogated him endlessly about charges that against him that were either dropped or for which he received a discharge. He further alleges that the respondent recorded that information, maintains that information in its database and told him that this information would be used to determine his suitability to perform consulting work with various government agencies. He submits that he has never been convicted of a crime.

5The applicant's submissions appear to confuse the Tribunal with the Ontario Human Rights Commission ("OHRC") and go on at length to make a number of disparaging comments about the Interim Decision, the OHRC and the respondent. Most pertinent is his submission that the Interim Decision is based on an "incorrect assertion" that "only individuals convicted of a crime and have received a pardon" may claim discrimination based on the grounds of "record of offence".

DECISION

6The Human Rights Tribunal of Ontario ("the Tribunal") is a quasi-judicial tribunal responsible for adjudicating claims of discrimination brought under the Code. The Tribunal can only adjudicate on issues that fall under the Code and not other pieces of legislation.

7Section 5 of the Code prohibits discrimination in employment on a number of grounds. It states:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

8The drafters of the Code assigned a very specific meaning to "record of offences" in section 10:

"record of offences" means a conviction for,

(a) an offence in respect of which a pardon has been granted under the *Criminal Records Act* (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment.

9The Criminal Records Act, R.S.C. 1985, c. C-47, as amended ("CRA") distinguishes between pardons and discharges. Section 3(1) of the CRA sets out the process by which a person can apply for a pardon. It states:

3(1) A person who has been convicted of an offence under an Act of Parliament or a regulation made under an Act of Parliament may apply to the Board [National Parole Board] for a pardon in respect of that offence….

10Section 4 describes the procedure by which a pardon is granted and section 5 describes the effect of pardon.

11In contrast, the CRA addresses discharges under section 6.1 which states:

6.1(1) No record of a discharge under section 730 of the *Criminal Code* that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record or the fact of discharge be disclosed to any person, without the prior approval of the Minister if,

(a) more than one year has elapsed since the offender was discharged absolutely; or

(b) more than three years have elapsed since the offender was discharged on the conditions prescribed in the probation order.

12In a recent decision, Jamal v. First Student Canada, 2009 HRTO 2083; Reconsideration denied 2010 HRTO 401, the applicant alleged discrimination in employment on the basis of record of offences. He had been charged with several counts under the Criminal Code and had been incarcerated for 17 months. One of the charges was withdrawn and the other resolved by a peace bond, the terms of which were concluded in April 2009. The applicant was never convicted of any criminal offence and therefore did not receive a pardon. Following the expiry of the peace bond, the applicant sought employment with the respondent, which was denied because the respondent considered his "alleged involvement in criminal activities". That part of the Application was dismissed by the Tribunal because the applicant did not meet the particular definition of "record of offences" under the Code.

13In another recent decision, de Pelham v. Mytrak Health Systems, 2009 HRTO 172, the Tribunal determined that the Code did not apply to an applicant who was charged with a criminal offence, but did not have a criminal record. In reaching this conclusion, the Tribunal stated at paras. 6 – 10:

Mr. de Pelham argues that notwithstanding the definition provided in the Code, I should give "record of offences" a broader meaning, to include situations in which an individual has been charged with a criminal offence. He puts forward several reasons for this position. He argues that it does not make sense, and would be unfair to allow employers to discriminate against persons merely charged with an offence, since it is a fundamental principle of law that an individual is "innocent until proven guilty." He says that the Legislature could not have intended that a person convicted of a criminal offence would have greater protection than a person only charged. In this regard he makes reference to the legislative debates preceding the 1981 amendments to the Code which added record of offences as a prohibited ground of discrimination.

Mr. de Pelham also argues that the term "record of offences" can and should be read to include any official record of interaction with the law, including a record of criminal accusations.

Finally, he relies on a series of British of Columbia Human Rights Tribunal cases which appear to extend the definition of record of offences to include persons charged, but not convicted of an offence. He notes that the *British Columbia Human Rights Code*, R.S.B.C. 1996, c. 210, while not identical to the Ontario Code, is similar in that it also refers to "a person convicted of a criminal offence". Notwithstanding, the British Columbia Tribunal has found that the protection is available to persons merely charged with an offence. (See e.g.: Clement v. Jackson (2006), 2006 BCHRT 411, 57 C.H.R.R. D/507).

Although I appreciate the applicant's arguments in this case, his position cannot succeed. The language of the statute is clear and unambiguous and provides that "record of offences" covers only persons convicted of an offence. It is true that the Code is an important public policy statute and must be given a large, liberal and purposive interpretation, but this does not mean the Tribunal can depart from the express provisions of the legislation. As the Supreme Court said in University of British Columbia v. Berg, 1993 CanLII 89 (SCC), [1993] 2 S.C.R. 353 (at 371):

This interpretive approach does not give a board or court licence to ignore the words of the Act in order to prevent discrimination wherever it is found. While this may be a laudable goal, the legislature has stated, through the limiting words in s. 3, that some relationships will not be subject to scrutiny under human rights legislation. It is the duty of boards and courts to give s. 3 a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumscribing the intention of the legislature.

Neither can I accept Mr. de Pelham's argument that the Legislature could not have intended that the Code protect only individuals convicted of an offence, and not cover those merely charged. First, it is a basic principle of statutory interpretation that words of a statute should be read in their ordinary sense, consistent with the scheme and object of the Act; R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 SCR 867 at para. 28. Second, the Code does not cover every form of discrimination in every circumstance. The Legislature has made choices about what forms of discrimination should be proscribed and in which social areas. Moreover, a review of human rights legislation across the country reveals a wide variation in the extent to which interactions with the criminal justice system are considered a prohibited ground of discrimination. For example Nova Scotia, New Brunswick, Newfoundland, Manitoba, Saskatchewan and Alberta provide no protection whatsoever for this form of discrimination. Quebec provides that an employer may not discriminate on the grounds that a person has been convicted of an offence if the offence was unrelated to the employment or intended employment, or the person has obtained a pardon. The Yukon *Human Rights Act*, R.S.Y. 2002, c. 116 does prohibit discrimination on the basis that an individual has a criminal record or has been charged with an offence. Thus, it is clear that different Legislatures across Canada have made different legislative choices. The Tribunal must respect those legislative choices.

14The Tribunal can appreciate the concerns and the issues that the applicant has raised in this Application, however, in light of the specific meaning that has been given to the definition of "record of offences", the applicant does not meet the definition of "record of offences" under the Code.

15Therefore, the Application is dismissed.