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SAMPLE ISSUE |
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December 1, 2006 |
Issue No. 1 |
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— CONTENT— |
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REFUSAL BY POLICE FORCE TO HIRE JOB APPLICANT BECAUSE OF SHOPLIFTING CONVICTION VIOLATES HUMAN RIGHTS CHARTER, WHERE PARDON OBTAINED, APPEAL COURT RULES The Montreal police force violated the Quebec Charter of Human Rights and Freedoms by rejecting an applicant for a job as a police officer because she had pleaded guilty to a charge of shoplifting five years earlier, even though she received a conditional discharge, the Quebec Court of Appeal has ruled. Upholding a decision of the Quebec Human Rights Tribunal, the appeal court ruled that the automatic sealing of all records of the discharge under the federal Criminal Records Act three years after its conditions were completed was the same as a pardon under the Act, and the Quebec Charter prohibits discrimination in employment on the basis of a criminal conviction if the person has obtained a pardon. Details below. POLICE CHIEF HAD DISCRETION TO CHANGE COMPRESSED WORK WEEK SCHEDULE DESPITE INCONVENIENCE TO OFFICERS, ARBITRATOR FINDS Toronto's Chief of Police did not breach the collective agreement by changing the work schedule in order to increase the number of officers available during a major street festival, even though the changes he made inconvenienced a number of officers by depriving them of one of their few summer weekends off, an Ontario arbitrator has ruled. The arbitrator held that the collective agreement gave the police chief the discretion to alter work schedules, provided only that he do so for bona fide service reasons and not act unreasonably. Details below. |
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— DETAILED REPORTS — |
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REFUSAL BY POLICE FORCE TO HIRE JOB APPLICANT BECAUSE OF SHOPLIFTING CONVICTION VIOLATES HUMAN RIGHTS CHARTER, WHERE PARDON OBTAINED, APPEAL COURT RULES The Facts: In 1990, S.M. pleaded guilty at the age of 21 to a $200 shoplifting charge. The matter was treated as a summary offence, and S.M. received a conditional discharge. In 1995, she applied to join the Montreal Urban Community Police Service but was informed that her application could not be considered because her criminal record made her ineligible. The police service based this rejection on the Quebec Police Act and associated regulations. Section 3 of the Act provided that, to become a member of the provincial police, a municipal police officer or a special constable, a person must, among other requirements, be "of good morals" and must not have been found guilty of a breach of the Criminal Code that was pursued as an indictable offence. Section 6.1 of the Act further provided that the provincial government could by regulation establish criteria for the hiring of members of the provincial police and other police forces and of special constables. The relevant regulation stated that, to join a police force, a person had to be of good morals as established by an inquiry with regard to family, social, financial and judicial background and must never have been found guilty of, nor have pleaded guilty to, an indictable offence under the Criminal Code. Informed of her rejection, S.M. objected that this was contrary to s.18.2 of the Quebec Charter of Human Rights and Freedoms, which provides that "[n]o one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence." She informed the Montreal police service that she had applied to the National Parole Board in 2002 for a pardon under the Criminal Records Act but had been told that people who received absolute or conditional discharges no longer needed to apply for pardons because all information about their convictions was automatically removed from the public record after a specified period. When the Montreal police service still refused to consider her application, maintaining that she did not meet the "good morals" criterion because of the shoplifting conviction, S.M. filed a complaint with the Quebec Human Rights Commission, alleging a violation of her rights under s.18.2 of the Charter. In a December 4, 2001 decision, the Quebec Human Rights Tribunal upheld her complaint, holding that a person who receives a conditional discharge is considered not to have been convicted and that the removal of all mention of the matter from the person's record after three years under the provisions of the Criminal Records Act constitutes a legal rehabilitation equivalent to a pardon for the purposes of s.18.2 of the Charter. Finding that S.M.'s rights under the Charter were violated, the Tribunal awarded her damages of $5,000. The police service applied to the Quebec Court of Appeal for judicial review of the Tribunal's decision. The Arguments: Before the Court of Appeal, the police service argued that s.18.2 did not apply to police work because such work does not constitute employment but rather a profession that is regulated under the Police Act. Second, the police service submitted that, even if s.18.2 did apply, S.M.'s application was rejected not because of her guilty plea but because an analysis of the facts and circumstances regarding her commission of the offence revealed a lack of integrity on her part. Third, it contended that the rehabilitation provided under the Criminal Records Act did not constitute a pardon within the meaning of s.18.2 of the Charter, and that in any event S.M. had never applied for or obtained such rehabilitation. Moreover, it asserted that refusing to hire as a police officer an applicant who had been convicted of a criminal offence was permitted by s.20 of the Charter, which states that "[a] distinction, exclusion or preference based on the aptitudes or qualifications required for an employment ... is deemed non-discriminatory." S.M. replied that policing was indeed employment for purposes of s.18.2. She argued that, since a conviction cannot be dissociated from the offence that was committed, the police service had not proved that its refusal to hire her was based on reasons that were genuinely distinct and different from the finding of guilt. Finally, she relied on the decision of the Supreme Court of Canada in Thierrien (Re), [2001] 2 S.C.R. 3, in maintaining that conditional discharge combined with the automatic deletion of her criminal record after three years under the Criminal Records Act constituted a pardon for the purposes of s.18.2 of the Code, and that s.20 did not apply. The Decision: The Quebec Court of Appeal denied the application for judicial review, upholding the decision of the Tribunal that the rejection of S.M.'s application to join the police service was a breach of s.18.2 of the Charter. Writing the unanimous decision of a three-member panel of the Court, Chief Justice Michel Robert rejected the police service's first contention, that police work was a profession and not employment for purposes of s.18.2. Observing that the employer-employee relationship takes many forms and that even professionals such as lawyers, engineers and doctors may carry out their functions within the framework of an employment contract, he held that "it is common knowledge that police officers ... are employees under the Labour Code and are in fact unionized, which is completely incompatible with this ground of appeal raised by the [police service]." This conclusion was reinforced, he added, by the fact that the Labour Code definition of "employee" specifically excluded members of the provincial police force, which would not have been necessary unless police officers of all sorts were in fact employees. Turning to the police service's argument that it had rejected S.M. not because of the conviction itself but because of what the circumstances of the offence revealed about her character, Robert disagreed. In his view, the evidence showed that the Montreal police service "automatically excluded ... every candidate who had committed a criminal offence, even if the Police Act in effect at the time prescribed automatic exclusion only for persons found guilty of an offence prosecuted by indictment. The situation of S.M. was not an exception. There is therefore no reason to interfere with the conclusion of the [Tribunal] judge in this regard." Moreover, Robert held, "the approach proposed by the [police service] would give the employer the discretion to judge the seriousness of the offence that was committed and, based on its assessment of this, to decide whether or not to accept a job application.... The seriousness, or as the [police service] calls it, the facts and circumstances surrounding the commission of the offence, has no relevance in analyzing the protection provided by s.18.2 of the Charter.... Taking the contrary view would remove all useful effect from the provision in question. An employer would only have to claim that it was not the conviction that caused it to reject an applicant, but the fact that the offence was committed in such and such circumstances. An employer, including a police service, does not have such discretion under s.18.2 of the Charter." As for the police service's invocation of s.20 of the Charter, Robert rejected this argument on the basis of the unequivocal statement of the Supreme Court of Canada in Therrien that "[i]t should be noted that s.20, which provides that a distinction based on the aptitudes or qualifications required for an employment is deemed non-discriminatory, has no application in respect of s.18.2. Section 18.2 is a self-contained provision and has its own rules governing exceptions." Finally, addressing what he described as "the question at the heart of this case," namely whether S.M. had obtained a pardon as contemplated in s.18.2 of the Charter, Robert relied on the Supreme Court's holding in Therrien that "the Quebec Charter makes no distinction based on which type of pardon may have been obtained." He acknowledged that, as the police service argued, a person who receives an absolute or conditional discharge under the Criminal Code and then has all reference to this discharge removed from the record under s.6.1 of the Criminal Records Act does not benefit from the provision governing pardons under s.5 of this Act that "the conviction in respect of which the pardon is granted or issued no longer reflects adversely on the applicant's character." But that, he reasoned, is only because a person who receives a discharge in court does not need this provision, since a discharge means that the person is considered never to have been convicted. Therefore, Robert held, "because a discharged person is considered not to have been convicted of the offence in question, it would be useless to want to protect the person against the potential effects of the conviction.... By the provisions of the Criminal Code relating to discharge and of s.6.1 of the Criminal Records Act which gives legal rehabilitation to the discharged person by means of the simple passage of time, the federal legislator exercised its criminal law jurisdiction to legislate in the matter of pardons. Since the Quebec Charter makes no distinctions based on types of pardons, this is a pardon for the purpose of s.18.2 of the Charter. Ruling that the Tribunal had therefore correctly found that the police service violated S.M.'s rights under this section, Chief Justice Robert on behalf of the Court of Appeal dismissed the application for judicial review. Comment: As indicated, s.18.2 of the Quebec Charter provides that "[n]o one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence." This decision dealt only with the inability of a police service, under s.18.2, to reject a job applicant on the basis of a criminal record for which the person had been pardoned. It has no bearing on the right of a police service in Quebec to discriminate in employment against applicants or officers who have been criminally convicted, and have not obtained a pardon. The application of s.18.2 in circumstances where a pardon has not been obtained is illustrated in Association des Policiers provinciaux du Québec v. Sureté du Québec, [2005] Q.J. No. 8001 (QL) (reported in Lancaster's Police Employment Law News, January/February, 2006). In that case, a Quebec Superior Court judge ruled that s.18.2 did not prevent the provincial police force from firing an officer who was convicted of dangerous driving causing death, because the offence was not unconnected to the employment and the employer had no duty to accommodate the officer by reassigning him to work that could be considered unconnected. Noting that "it is not difficult to recognize that there is a comparably strong relation between a criminal offence and police work," the judge held that the test under s.18.2 is "whether the employer, or its clientele, once aware that an employee had been convicted of a particular crime, could reasonably apprehend in light of its nature and gravity either that he may commit a similar crime again, or that, even if he should not, he lacks the moral character or the judgment to reliably perform the functions which the employment in question objectively calls for." If the answer is affirmative, s.18.2 "does not require an employer to accommodate an employee's criminal record by changing the functions he performs ... in order to remove the relation between the offence and the functions." Case Name: Montréal (Communité urbaine de) (Service de police) v. Commission des droits de la personne et des droits de la jeunesse |
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POLICE CHIEF HAD DISCRETION TO CHANGE COMPRESSED WORK WEEK SCHEDULE DESPITE INCONVENIENCE TO OFFICERS, ARBITRATOR FINDS The Facts: The collective agreement between the Toronto Police Services Board and the Toronto Police Association provided for a compressed work week under which many members of the Association, particularly police officers with front line duties, worked on a schedule that ran in fixed cycles without regard to weekends or holidays. In preparation for the Caribana 2005 festival, a huge annual Caribbean street festival in downtown Toronto whose peak four-day period in July coincided with a long weekend, the police chief determined that work schedule changes would be necessary in order to ensure that sufficient officers were available to handle the policing challenges of the event. To that end, discussions with the union were held during the preceding fall and winter to explore different scheduling models and options. The union did not disagree that additional officers were needed during the peak period, but it opposed revision of the compressed work week schedule. The concern was that this would disrupt the summer plans of the affected officers who would unexpectedly have to work that weekend, and would be particularly adverse for the members of "A" platoon who would lose one of only three scheduled summer weekends off. The alternative that the union preferred was to redeploy some officers who were not on the compressed work week but worked regular days, and to make up the shortfall through voluntary callback with overtime. In management's view, the union's proposal was not practical. Instead of using frontline police officers who were already used to working together and experienced at the kind of policing duties the festival involved, it would have meant deploying officers who were not on the compressed work week schedule because their usual functions were not frontline ones. Moreover, it would have resulted in significant overtime costs because the desired staffing levels could not have been achieved without considerable voluntary callback. In the end, the chief of police decided to alter the compressed work week schedule, relying on his discretion under the collective agreement to do so. Article 5.02 of the collective agreement provided that, "[s]ubject to the requirements of the Service, in the discretion of the Chief of Police: (a) The normal tours of duty will be as follows ... provided that the Chief of Police shall continue to have the right to change the starting time of a tour of duty." As well, Appendix B to the collective agreement, entitled "Accord on Compressed Work Week," contained a provision that "the Chief of Police in his/her discretion shall continue to have the right to change the starting time of a tour of duty, including the right to vary the starting time of a tour for overlapping at tour times." When the police chief decided to alter the compressed work week schedule to deal with the Caribana festival, the union filed a grievance alleging that his course of action was unreasonable and therefore contrary to the collective agreement. The Arguments: Before the arbitrator, the union relied on the arbitral award in Metropolitan Toronto Police Assn. v. Metropolitan Toronto Police Services Board(Grievance re Shift Schedule - 31 Division) (2000), unreported, (Jackson), in which it was held that "[u]nder the language of the collective agreement, the Chief of Police has some degree of discretion which can be applied to the Compressed Work Week. However, there are some limits, the first of which is that discretion must be exercised for bona fide requirements of the service.... As well, the Chief's discretion must be exercised in a non-capricious, non-arbitrary, and good-faith manner." While acknowledging that additional officers were needed for the weekend in question, the union submitted that the criteria set out in the Jackson award required management to approach staffing issues of this type on the basis of "minimal impairment" to the rights of officers. Given the great importance of the compressed work week schedule to officers and their families, the union argued, the alternative that it preferred should have been chosen and management's failure to do so constituted a failure to act in a "non-capricious, non-arbitrary, and good-faith" manner. The employer replied that the collective agreement clearly gave the police chief the discretion, where he was of the view that it needed to be exercised, to change the shift schedule to meet the requirements of the service. Provided that the decision was reasonable and taken for bona fide purposes, the employer argued, that was the end of the matter and it was not up to an arbitrator to substitute his own views for that of management. In the present case, it maintained, the decision was rational and made in good faith after consultation with the union, and the fact that management priorities took precedence over the union's preferences was immaterial. The Decision: Finding that "[t]here was nothing improper about the process leading to the exercise of the [police chief's] discretion or about the decision itself," Arbitrator William Kaplan dismissed the grievance. Arbitrator Kaplan held that "[t]he only real issue in this case is whether the exercise of discretion was somehow tainted, unreasonable, irrational, or made in bad faith." He determined that "the exercise of discretion was not only, as conceded, required for the service, but that it was not tainted in any way by the kind of factors identified in the Jackson award and other authorities that might lead to the questioning of the exercise of discretion.... The fact that the Association's preferred alternative, which did not interfere with the compressed work week schedule but which involved significant additional overtime expenditures and deployment of Monday-Friday personnel, was not chosen does not vitiate the decision." Holding that "[t]here is nothing about the Chief's exercise of discretion, and the balancing of interests attendant thereto, that requires that the Association's desired outcome be given preference," Arbitrator Kaplan dismissed the grievance." Comment: In the present case, the collective agreement explicitly gave the chief the discretion to make scheduling changes with regard to the compressed work week. In the absence of any demonstrable impropriety in the exercise of this discretion, the contractual provision was conclusive. Case Name: Toronto Police Association v. Toronto Police Services Board (Caribana Scheduling Grievance) |
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