View source for Record of Offences

[[Category:HumanRights]]

==<i>Human Rights Code</i>, R.S.O. 1990, c. H.19 {{HRC}}==

Definitions re: Parts I and II

10 (1) In Part I and in this Part,

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(a)  an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or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

==<i>Ma v. Fung Loy Kok Institute of Taoism</i>, 2019 HRTO 1303 (CanLII){{Ma v. Fung Loy Kok Institute of Taoism, 2019 HRTO 1303 (CanLII)}}==

[11]        The applicant refused to answer the manager as to why he was arrested. <b><u>He alleges that his employment was terminated that same afternoon, because of the discovery of his arrest. The applicant alleges that the respondent violated the Code by terminating him for an offence for which he was not convicted, and for insisting that he disclose the offence and circumstances of the arrest.</b></u>

[13]        The question before me in this summary hearing was whether or not the ground of record of offences applied to the applicant’s circumstances. In his Application the applicant indicated that he was charged with sexual assault, which is a federal offence, and that he had not received a pardon.

[16]        I asked the applicant whether he had any documentation to demonstrate that he had been pardoned. He indicated that he had documentation relating to the criminal proceedings but did not point to any documentation that would suggest he had been pardoned.

[17]        In reply, the applicant explained that he had been arrested by police immediately after an incident in which he touched a woman, and that he had spent three days in jail before he was bailed out. <b><u>He retained counsel from legal aid, who advised him that he did not need to attend court. The applicant indicated that he did not have to go to trial or jail, and that because of this he had no criminal record.</b></u>

[18]        Based on this explanation of events, the information contained in his Application, and his answer to my question. <b><u>I find that the applicant has failed to point to any evidence available to him which would suggest that he falls under the Code ground of “record of offences”.</b></u>

==<i>de Pelham v. Mytrak Health Systems</i>, 2009 HRTO 172 (CanLII){{de Pelham v. Mytrak Health Systems, 2009 HRTO 172 (CanLII)}}==

[6]    Mr. de Pelham argues that, notwithstanding the definition provided in the Code, <b><u>I should give "record of offences" a broader meaning, to include situations in which an individual has been charged with a criminal offence.</b></u> 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.

[7]    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.

[9]    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 <i>University of British Columbia v. Berg</i>, 1993 CanLII 89 (SCC), [1993] 2 S.C.R. 353 (at 371) [ 18 C.H.R.R. D/310 at § 27]{{University of British Columbia v. Berg, 1993 CanLII 89 (SCC)}}:

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.

[10]    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. <b><u>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</b></u>: <i>R. v. Ulybel Enterprises Ltd.</i>, 2001 SCC 56 (CanLII), [2001] 2 S.C.R. 867 at § 28.{{R. v. Ulybel Enterprises Ltd., 2001 SCC 56 (CanLII)}} <b><u>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.</b></u> 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 <i>Yukon Human Rights Act</i>, 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.{{Yukon Human Rights Act}} Thus, it is clear that different Legislatures across Canada have made different legislative choices. <b><u>The Tribunal must respect those legislative choices.</b></u>

[11]    Finally, I recognize that the British Columbia Human Rights Tribunal does take a different approach on similar statutory language. However, with respect, I cannot reach the same conclusion.

==References==