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Off the Record – Irrelevant Criminal Record Discrimination

Criminal Record Discrimination Costs Taxpayers and Puts the Public at Greater Risk

Did you know that criminal record discrimination puts the offender at greater risk of re-offending? Somehow we have to create more employment opportunities, even if supervised, for ex-offenders to ensure they stay employed, gain valuable work experience and stay out of trouble.  Often, employment will help in the rehabilitation process.

Types of Criminal Record Discrimination

Individuals can face criminal record discrimination, even if their criminal record is pardoned (or suspended).    The Pardon Program (now called Record Suspension) is run by the Canadian Federal Government and only protects against discrimination in Federal-related positions.  Protection from discrimination is found in the Canadian Human Rights Act.  Some of the Provinces have adopted this in their Provincial Human Rights Act–but not all, meaning you are only protected from criminal record discrimination if you apply for a position with the Federal Government or a position with the Provincial Government if that province has freedom from discrimination based upon pardoned records in its provincial Human Rights Act.

If you face charges and are later found not guilty or charges are withdrawn or dismissed, that information may appear in court cases which are published on the internet.  More and more employers are running the names of potential candidates on the internet, and if you name appears, you face criminal record discriminated, even if not convicted. But, how do you prove it?  Most employers will not disclose the fact that the information found on the internet was used in their decision making.

The question is “What is a criminal record?”  Technically, it is any information of a criminal nature that is associated with a person’s name, regardless of whether there was a finding of guilt.  Accordingly, criminal record discrimination results from convictions, discharges, and charges which were withdrawn, dismissed or there was a finding of ‘not guilty’.

Criminal Record Discrimination based upon Pardoned Criminal Records

If you were convicted of a sex offence, even if pardoned, you will never be given a Police Clearance IF you apply for a job in the vulnerable sector.  Accordingly, individuals with sex offences will face criminal record discrimination, even if pardoned, if they apply for a vulnerable sector position.

Technically, once pardoned, if an employment application asks “do you have a criminal record, pardoned or otherwise”, then the truthful answer is “yes”.  Being pardoned or having your record suspended does not erase the fact that you have a criminal record.  Though a pardon (or suspension) protects against most criminal record discrimination, it does not protect you from all of it.

Most employes (except for employers in the vulnerable sector), do not require the disclosure of a pardoned record.  So, once pardoned (or your record is suspended), you’ll probably be fine.  But, if you are asked if pardoned, you are expected to answer ‘yes’.  Does this mean you face criminal record discrimination?  The answer is “no” if you apply for a position with the Federal Government or a Provincial Government (if that Province has freedom from discrimination in its Provincial Human Rights Act).  Otherwise, the answer is “yes, you do face criminal record discrimination”.

Irrelevant Criminal Record Discrimination Affects Employment

This is a very good video on criminal record discrimination based upon convictions that are irrelevant to the position being sought or that are old.

Some U.S. States are now passing criminal record discrimination-based legislation that prevents employers from asking if a person has a criminal record during initial employment screening.  It allows for the individual to get to meet the employer, and pass a few stages before the individual is asked to discuss or disclose a criminal record.  It allows for the employer to get to know the employee before judging him or her on their criminal record.

I also like the idea that some U.S. States are passing laws or attempting to pass laws that prevent criminal record discrimination by employers  who are screening individuals with irrelevant criminal convictions unrelated to the position being sought  (ie. if the conviction is DUI which is not a crime of dishonest and the position being sought is in banking).  I will discuss in subsequent blogs exactly what kinds of criminal record discrimination is allowed in Canada based upon pardoned and non-pardoned criminal records.

A New Kind of Criminal Record Discrimination

Unfortunately, due to the passing of the Crime Bill in 2012, Canadians must now wait longer to apply for a Record Suspension (previously called a Canadian Pardon). It is unfortunately because less than 4% of individuals pardoned ever re-offended. This means that the pardon program previously was very successful. However, due to the 4% that re-offended after pardoned, the remaining 96% get to pay with longer waiting periods before qualifying for a Record Suspension!  This new kind of criminal record discrimination means 96% of the individuals now have to wait longer because of the risk of the other 4% re-offending.  Here are statistics from the Parole Board of Canada:

4% Revocation Rate of Pardons increased Criminal Record Discrimination for Remaining 96%

Pardon Revocation

Pardon Program Was Successful – Why change it?

Increased Punishments for Criminal Record

Effectively, the new rules impose greater penalties on individuals with a criminal record, even though 96% of the people pardoned have demonstrated that no further penalties were ever necessary. People with summary offences now criminal record discrimination for 5 years instead of 3 years.  Individuals with indictable offences face criminal record discrimination for 10 years instead of 5 years. Often times, my customers have one isolated offence, and learn the lesson permanently the moment they are caught and realize the gravity of what they have just done. I’d really like your feedback on Criminal Record Discrimination. Do you think the new punishments for past criminal records to be excessive?

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