In 1990, a 21-year-old woman was caught shoplifting. She then pleaded guilty to a charge of theft, receiving a conditional discharge. Some five years later, she applied for a position with the Montreal police force. So began a 13-year legal odyssey culminating in a Supreme Court of Canada decision (Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse, 2008 SCC 48) released in August of 2008.
As part of the background screening process, the Montreal police force became aware of the past guilty plea. It rejected her application on the basis that the guilty plea showed she did not possess the necessary “good moral character” required of police officers. The “good moral character” test was legitimate – it was a statutory requirement. The police force believed this test supported its rejection of the woman’s application.
Thirteen years later, the Supreme Court ruled that the test was indeed legitimate but that the police force had applied it improperly.
As it turns out, one of the legal effects of the conditional discharge the woman had received was that by the time she applied to the police force she had also received an “automatic pardon” for her offense. As a general rule, pardons are intended to help erase the “stigma” that attaches to a criminal conviction or guilty plea. (The fact that the woman was referred to only by her initials, S.N., in the judgment underscores that this goal is difficult to achieve.)
What’s more, Quebec human rights laws expressly provided that employers could not refuse to hire someone merely because of an offense for which he or she had been subsequently pardoned. The court ruled that the police force had unfairly discriminated against her by relying on the mere existence of the woman’s guilty plea.
But what about the “good moral character” test, which also had legal force? The presumption that S.N. had completely recovered her “moral integrity” as a result of the pardon could be countered, but this required actual evidence rather than a preconceived notion of what a guilty plea revealed about her character. The police force could investigate further to determine whether there were other facts that would disqualify the candidate even if the facts related to the offense.
Human rights laws
This case illustrates just one of the many potential pitfalls facing Canadian employers looking to conduct background checks on potential employees. Relying on pardoned criminal offenses is currently prohibited in only a few jurisdictions. But in any event, pardoned offenses may not show up on most criminal records checks, and given the purpose behind pardons, relying on pardoned offenses can be tricky, as the Montreal police force found out).
Several provinces go further and have laws prohibiting the refusal to hire someone on the basis of a criminal conviction unless the employer can show that the offense is directly related to the position. This is not an easy test to meet.
In addition to the human rights concerns, serious privacy issues are raised each time an employer conducts a background check. The laws governing collection of personal information by employers vary from one Canadian jurisdiction to another. Generally speaking, potential employees should be informed that personal information may be collected and used by the employer to determine the suitability of the candidate for employment, and their consent must be obtained for each collection.
The information requested, whether it be a reference check, credit check, criminal record check, or police record check, must be “necessary” and more than just “nice to have” or “potentially useful.” Once obtained, any confidential information should be stored separately from the human resources employee file and only necessary individuals should be granted access to this information.
Timing issues also arise. Where such checks are required for the position, some employers may choose to fully review the qualifications of applicants prior to engaging in a background check of a short list of candidates. Some employers may wish to make an offer of employment before the check is conducted, in which case the offer should be made conditional upon a satisfactory result being returned.
Background searches are often conducted by third party service providers, but employers remain responsible (and potentially liable) for the collection. Time and effort must be committed to a full consideration of what information should reasonably be requested, as well as the proper use and storage of such information once the employer has collected it.
As indicated above, there are many potential legal issues that can trip up an employer who engages in such checks, even with the best of intentions. As you can see, there is no such thing as a “routine” background check.
And in case you were still wondering about the ultimate fate of the 21-year-old woman caught shoplifting in 1991, you shouldn’t expect to see her as a member of Montreal’s finest any time soon.
The Supreme Court of Canada noted that she had long since abandoned her pursuit of a career as a police officer. It is unlikely that she was even involved in this round of the litigation as it was the police force that brought the issue to the nation’s highest court.