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Is Criminal Record Discrimination Legal in Canada?

Criminal Record Discrimination exists in Canada.  I’m sure this comes as no surprise.  You can be discriminated against for a criminal record, even if Pardoned (or Suspened)…in some cases. To understand why, I first need to give you a history lesson.

Union of Canada

Three Provinces, namely, the Province of Canada (which later became Ontario and Quebec), Nova Scotia and New Brunswick agreed to form a union in 1987. Since that time, the rest of the Provinces joined in.

It was decided that for this union to work, the Federal Government would be given jurisdiction or control over things of national interest (such as railway, forestry, security and banking), and Provinces would retain jurisdiction or control not of national interest (such as Provincial Health Care, Professional Trades and Education).

Each Province was then responsible for creating laws for each area that they retained jurisdiction or control.  Likewise, the Federal Government was responsible for regulating and creating laws for things over which they have control.  The Federal Government has control over divorce in Canada.  The Divorce Act of Canada applies to all of Canada.  The Criminal Code is also Federal and applies to all of Canada.  But, matrimonial property laws vary from Province to Province, so each Province has their own Matrimonial Laws.  I’ll now review the different Human Rights Acts which exist in Canada so that you can learn how criminal record discrimination varies from Province to Province and with the Federal Government.

Federal Human Rights Act

Did you know that there is a Federal Human Rights Act that ONLY provides protection against criminal record discrimination over matters which are under Federal Control? Did you know that the Criminal Records Act, a Federal Legislation, is the law in place that makes Record Suspensions (previously called Canadian Pardon) possible? However, the Federal Government’s Human Rights Act has no effect or force over Human Rights related to issues under the control of the Provincial Government.

The Canadian Human Rights Act

Section 2 of this Act specifically states:

2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

Therefore, if you are applying for a job for an organization not regulated by the Federal Government, you can not rely on section 2 of the Government of Canada’s Human Rights Act to protect you from criminal record discrimination once you are pardoned! Instead, you must look to your Provincial Human Rights Act to see if you are protected. Some Provincial Human Rights Act protect you from discrimination based upon a criminal record, but not all.

For more information, watch for the following blogs which I will post soon:

  • Summary of Human Rights Acts for Each Provinces
  • Court Cases in Canada involving employment-based discrimination involving discharges and pardoned criminal records.

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