December 2, 2023


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Can a company discriminate against me in hiring for having outstanding criminal charges?

3 min read
Can a company discriminate against me in hiring for having outstanding criminal charges?
The question

I am applying for a new job and have outstanding criminal charges, but I haven’t been criminally convicted. One employer requested a criminal check and it came back incomplete, requesting a fingerprint-based check. Does having outstanding charges affect my ability to get hired? Can that company discriminate against me for this, or for the initial criminal check coming back incomplete?

The first answer

Alia Besharat, senior associate, Monkhouse Law, Toronto

Many employers will require some sort of criminal record check as a condition of hiring. They can still hire you depending on the role itself and the reason for your criminal record. This often refers to the process of investigating the background of an individual for employment purposes to ensure they do not pose a risk to the employer, other employees and clients. While these criminal record checks are permitted during the hiring process, employers must have a valid reason for conducting such inquiries. Somewhere in the application or offer, the employer must clearly state that a successful background check is part of the selection process. For the most part, human rights and privacy laws do not protect this information. In other words, when an applicant has a criminal record or pending charge, they can be denied prospective employment on that basis, subject to the protections provided by human rights legislation.

Ontario’s Human Rights Code makes it illegal to discriminate against employees for a “record of offences.” The legislation defines a record of offences as 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for a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or b) an offence in respect of any provincial offence. However, discrimination based on any other information, such as a charge, is not prohibited and you can be denied employment on that basis.

In the event you are criminally convicted, I suggest you apply for a pardon and be open and truthful about your past as being dishonest is grounds for dismissal after you are hired.

The second answer

Jim Boyle, employment lawyer, Forte Workplace Law, Surrey, B.C.

In British Columbia, the Human Rights Code protects individuals from discrimination in employment and hiring on the basis that the individual “has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.”

The British Columbia Human Rights Tribunal has interpreted this protection broadly to include acts for which charges were laid but no conviction is registered.

This means that if an individual has been charged with an offence, a B.C. employer may only legally refuse to hire based on the results of a criminal record check if the alleged crime might affect the person’s ability to do the job. For example, if the charge is theft, an employer might reasonably refuse to hire the individual for a position requiring unsupervised access to money, whereas if the charge is for possession of an illegal substance, the employer should not let that influence the hiring decision.

It is a grey area as to whether the employer can decide against hiring based on a criminal check coming back incomplete – they do not yet have any information about charges on which they could make a discriminatory decision, but it is arguable that, if the employer infers that “incomplete” means there is a criminal record of some kind, deciding not to hire on that basis could still amount to discrimination based on the perception of a criminal conviction.

The law on this varies throughout Canada. You should consult with a lawyer to determine whether human rights protections apply in your particular circumstances.

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