Name of Case: Montreal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse)

Date of Decision: August 1, 2008

Supreme Court Panel: Chief Justice Beverley McLachlin and Justices Michel Bastarache, Ian Binnie, Louis LeBel, Marie Deschamps, Morris Fish, Rosalie Abella, Louise Charron and Marshall Rothstein

Judgment under appeal: Judgment of the Quebec Court of Appeal dated May 3, 2006

Facts: S.N. pleaded guilty to a charge of theft in summary conviction proceedings (shoplifting) and received a conditional discharge. She subsequently received a pardon under provisions in the Criminal Records Act which grant an automatic pardon three years after a conditional discharge. Four years after the conviction, S.N. applied for employment as a police officer with the Service de police de la Communauté urbaine de Montréal (SPCUM). Despite the fact that she had received a pardon, her application was rejected on the grounds that she did not satisfy the criterion of "good moral character" imposed by Quebec's Police Act and the bylaw respecting hiring standards. S.N. complained to the Commission des droits de la personne et des droits de la jeunesse alleging that SPCUM had refused to hire her solely based on the fact that she had been found guilty of a criminal offence, in breach of s.18.2 of Quebec's Charter of human rights and freedoms (Charter).
 
Case History: The Quebec Human Rights Tribunal held that SPCUM had infringed s.18.2 of the Charter and S.N. was awarded damages of $5,000 for injury to dignity. The Quebec Court of Appeal subsequently affirmed the Tribunal's decision.

SPCUM appealed further to the Supreme Court of Canada. Leave was granted on January 11, 2007.

Issue(s): The issues on appeal to the Supreme Court of Canada included: (1) whether service as a police officer constituted "employment" for the purposes of attracting application of s.18.2 of the Charter; (2) whether the statutory pardon received by S.N. was a "pardon" within the meaning of s.18.2 of the Charter; (3) whether the refusal to hire S.N. was based on the mere fact of her criminal record contrary to s.18.2 of the Charter.

Supreme Court's Decision (6-2): The appeal was dismissed (Justice Bastarache took no part in the judgment).

Reasons:

Majority Decision
Upholding the decision of the Quebec Human Rights Tribunal, the majority of the Court ruled that the City had engaged in discrimination. After rejecting the City's arguments that the prohibition in s.18.2 of the Charter did not apply to police work because it was not "employment" and that a pardon was limited to those granted by royal prerogative and did not include those resulting automatically from the passage of time, the Court addressed the interaction of sections 18.2 and 20 of the Charter, as well as s.3 of the Quebec Police Act.

Writing the reasons of the majority, Justice Marie Deschamps made it clear that "a pardon does not have an absolute effect and does not erase the past ... [although it] helps obliterate the stigma attached to the finding of guilt ... [but it] must be presumed that the person has completely recovered his or her moral integrity." As a result, Deschamps held, "an employer is entitled to consider the facts that resulted in a finding of guilt in assessing whether a candidate has the qualifications required for a job. ... However, the employer must also consider that the person has been pardoned."

Reconciling these two themes – prohibition against discrimination if a pardon has been obtained, on the one hand, and a BFOQ such as good moral character in police work, on the other – the Court declared that an adverse employment decision cannot be based on "the mere fact of the finding of guilt;" it must be justified by "evidence of delinquent behaviour" or of facts indicating "a lack of probity." It is "up to the employer to prove that the decision was not based solely on the stigma attached to the finding of guilt."

In the case at hand, the Supreme Court held, the City had failed the test:

In the specific case of S.N., the rejection of her application was based solely on a review of the file on which the finding of guilt was based. The SPCUM conducted no further inquiry or interviews that would have enabled it to conclude that there was sufficient evidence to counter the presumption that the pardon had restored her moral integrity. In these circumstances, the SPCUM's submission that it had rejected S.N.'s application for a reason other than the fact that she had been found guilty of shoplifting cannot be accepted. Since S.N. had been pardoned, the lack of moral integrity associated with shoplifting could not be relied on to prove that she was not of good moral character.

The Court concluded:

The appellant cannot apply the good moral character criterion in this case because it has alleged no facts other than the ones that resulted in the finding of guilt in respect of which S.N. was pardoned. Those facts did not have to be disregarded in reviewing S.N.'s application, but they could not serve as the sole basis for rejecting it. The SPCUM made no real inquiry that would have enabled it to justify its decision.

In the result, the City's appeal was dismissed, and the Human Rights Tribunal's finding, that S.N.'s application was rejected owing to the mere fact that she had been found guilty of a criminal offence, was upheld.

Minority Decision

Two judges (Binnie and Charron) dissented. Writing for the dissenting judges, Justice Charron observed:

The fact that a person has received a pardon should factor into the bona fide occupational requirement analysis. As noted earlier, there are various types of pardons. A 'free pardon', under s.748(2) and (3) of the Criminal Code, deems that the person never committed the offence. Thus it would be virtually impossible to find that the finding of guilt is related to a bona fide occupational requirement if such a pardon were granted. Other pardons are obtained after a certain amount of time passes without the person committing any subsequent offences. In the case of administrative pardons issued for absolute and conditional discharges, they are granted automatically and without investigation into the person's actual rehabilitation. The passage of time makes it less likely that the criminal activity will be relevant to a bona fide occupational requirement, depending on the severity of the offence and the nature of the employment. However, there are some jobs where any degree of risk of recidivism is too great to be tolerated. Likewise, if the position requires a public perception of integrity, then a criminal record may not be something that can be accommodated regardless of how much time has passed.

In Charron's view, the City did not just rely on the conviction; it obtained police reports and statements, as well as the court record, analyzed the modus operandi of the crime and considered the individual's age at the time of the infraction before concluding that she did not possess a qualification for employment, i.e. good moral character.

Charron emphasized that the nature of police employment requires the highest standard of moral character:

This Court has recently affirmed that participation in most, if not all, criminal activities will undermine a police officer's ability to do his or her job.... Police have considerable power and discretion over matters that can affect the fundamental rights of the members of the public whom they encounter. Police work requires individuals not only to exercise a significant degree of judgment and integrity, it is also a position that requires the utmost public trust.... Because of the need of police officers to exercise their authority with integrity, the risk of recidivism may impose an undue burden on the police force. Even if the person presents a very low risk of reoffending, the fact that they have committed an offence is likely to affect the public's confidence in the integrity of the police force. There may be some exceptions such as persons who receive free pardons, persons who committed very minor infractions as minors, or persons whose record stems from non-violent political activity, but these exceptions will be rare. The nature of the employment requires the highest standard of moral character.

The minority concluded that the City was justified in refusing to hire the applicant, and that its actions therefore did not violate the Quebec Charter.

Lancaster Reference: For analysis of the Supreme Court of Canada's decision, see Lancaster's Police Employment Law E-Bulletin, September 12, 2008, Issue No. 23. For analysis of the Quebec Court of Appeal's decision, see Lancaster's Police Employment Law E-Bulletin, December 1, 2006, Issue No. 1.