Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse)

Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse)
Collection
Supreme Court Judgments
Date
2008-08-01
Neutral citation
2008 SCC 48
Report
[2008] 2 SCR 698
Case number
31551
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 31551
Decision Content
SUPREME COURT OF CANADA
Citation: Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse), [2008] 2 S.C.R. 698, 2008 SCC 48
Date: 20080801
Docket: 31551
Between:
City of Montréal (in right of the
Communauté urbaine de Montréal)
Appellant
and
Commission des droits de la personne
et des droits de la jeunesse and S. N
Respondents
‑ and ‑
Attorney General of Quebec, École nationale de police du
Québec and Prisoners’ Rights Committee
Interveners
Official English Translation: Reasons of Deschamps J.
Coram: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 38)
Dissenting Reasons:
(paras. 39 to 88)
Deschamps J. (McLachlin C.J. and LeBel, Fish, Abella and Rothstein JJ. concurring)
Charron J. (Binnie J. concurring)
* Bastarache J. took no part in the judgment.
______________________________
Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse), [2008] 2 S.C.R. 698, 2008 SCC 48
City of Montréal (in right of the
Communauté urbaine de Montréal) Appellant
v.
Commission des droits de la personne
et des droits de la jeunesse and S.N. Respondents
and
Attorney General of Quebec, École nationale de police du
Québec and Prisoners’ Rights Committee Interveners
Indexed as: Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse)
Neutral citation: 2008 SCC 48.
File No.: 31551.
2007: December 5; 2008: August 1.
Present: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for quebec
Human rights — Right to equality — Discrimination based on criminal record — Pardon — Candidate for employment as police officer rejected at initial stage of selection process because of prior conviction despite having been pardoned — Police force indicating that she did not satisfy “good moral character” criterion imposed by hiring standards provided for in statute and regulation — Whether candidate for employment as police officer enjoys protection of s. 18.2 of Charter of human rights and freedoms against discrimination based on prior conviction that connected with employment — Whether that protection applies to all existing forms of pardon, such as statutory pardon — Whether candidate rejected owing to mere fact of finding of guilt — Whether rejection of candidate justified under s. 20 of Quebec Charter, which provides that requirement of aptitudes and qualifications that necessary for employment deemed non‑discriminatory — Charter of human rights and freedoms, R.S.Q., c. C‑12, ss. 18.2, 20 — Criminal Records Act, R.S.C. 1985, c. C‑47, s. 6.1 .
In 1991, N pleaded guilty to a charge of theft in summary conviction proceedings and was conditionally discharged pursuant to s. 730 (then 736) of the Criminal Code . In 1995, she applied for employment as a police officer with the Service de police de la Communauté urbaine de Montréal (“SPCUM”), but her application was rejected because she did not satisfy the criterion of “good moral character” imposed by the Police Act and the by‑law respecting hiring standards adopted pursuant to it. N informed the personnel officer that she had been pardoned. Section 6.1 of the Criminal Records Act (“CRA ”) grants an automatic pardon once three years have elapsed since a conditional discharge. The SPCUM stood by its decision. N complained to the Commission des droits de la personne et des droits de la jeunesse. She alleged that the SPCUM had, contrary to s. 18.2 of the Charter of human rights and freedoms (“Charter”), refused to hire her owing to the mere fact that she had been found guilty of a criminal offence even though she had been pardoned. The Human Rights Tribunal held that the SPCUM had infringed s. 18.2 of the Charter, and it awarded moral damages. The Court of Appeal affirmed that judgment.
Held (Binnie and Charron JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and LeBel, Deschamps, Fish, Abella and Rothstein JJ.: The rejection of N’s application infringed the Charter. Her statutory pardon is a “pardon” within the meaning of s. 18.2 of the Charter. Since the Quebec legislature has neither defined the scope of its reference to the federal law respecting pardons nor limited that reference in time, neither its use of that word in 1982 nor the legislative history limits the pardon referred to in s. 18.2 to the federal procedure or administrative mechanisms that existed at that time. The 1992 amendments to the CRA relating to the pardon resulting from a discharge were dictated by a concern to remove the requirement that discharged persons apply for a pardon in the same way as those who were convicted. This purpose is pursued in the legislation by providing that a pardon has effects that apply to discharged persons as well as to convicted persons: it helps them obliterate the stigma attached to the finding of guilt. [14‑16] [19‑20]
Police officers can benefit from the protection of s. 18.2 of the Charter because they hold employment. They are subject to their superiors, to the executive power of the state and to their employer’s general supervisory powers. [13]
Under the Police Act, being of good moral character and not having a criminal record are separate criteria. The facts giving rise to a conviction are therefore on their own an insufficient basis for rejecting a candidate for not being of good moral character. However, a pardon does not erase the past. An employer is therefore entitled, in evaluating a candidate, to consider the facts that resulted in a finding of guilt. It can establish that a candidate was rejected or an employee dismissed for not being of “good moral character”. However, such a defence requires proof of more than just a connection between the finding of guilt and the employment and may not be raised if the decision was based solely on the fact that the person has been found guilty of an offence. In the instant case, the rejection of N’s application was based solely on a review of the file on which the finding of guilt was based. No further inquiry or interviews were conducted that would have made it possible to counter the presumption that the pardon had restored N’s moral integrity. [24‑26] [33‑34]
The legislature has, by enacting s. 18.2, created a special rule for the stigma attached to findings of guilt. This rule cannot be disregarded by applying the more general rule in s. 20. The protection of s. 20, which relates to requirements of employment, is broader in several respects than that of s. 18.2. It encompasses occupational requirements that go beyond a person’s integrity or character. However, an employer that imposes a requirement that is prima facie discriminatory must prove that it would suffer undue hardship if the requirement were not met. Section 18.2 does not require such proof. Where two different rules exist, a special rule prevails over a general one. To accept that s. 20 allows the employer to base its decision on the mere fact that the person was found guilty without taking the pardon into account would mean that a justification that is not applicable under s. 18.2 can be raised under s. 20. [30‑31]
Per Binnie and Charron JJ. (dissenting): The SPCUM was justified in rejecting N’s candidacy based on the fact that she was not, as required by s. 3 of the Police Act, a person of “good moral character”. The refusal to hire was based on an aptitude or qualification required for an employment within the meaning of s. 20 of the Charter. Where the s. 18.2 protection applies, as in this case, there is no reason why the general grounds for justification contained in s. 20 should be carved out of the Charter. The obiter statements in previous decisions of this Court to the effect that s. 18.2 is a “self‑contained” or “independent” provision in respect of which s. 20 finds no application should be departed from. [39] [43] [80]
The French version of s. 18.2 of the Charter is more consistent with the intention of the legislature that the protection extends to all persons who have received some form of pardon. It refers to a person who has been found guilty of a criminal or penal offence whereas the English text refers to a person being convicted. While all persons who are convicted were first found guilty of the offence, some persons found guilty are not convicted but rather granted an absolute or conditional discharge. It is apparent from reading s. 6.1 CRA in context and from a large and liberal approach to the Charter that s. 18.2 includes those whose criminal records have been sealed following a discharge pursuant to s. 6.1 CRA . [51] [54-55]
Section 20 of the Charter is a general clause that deems certain distinctions, exclusions or preferences non‑discriminatory and it is not subsumed under s. 18.2. Certain provisions of the Charter make explicit reference to the grounds enumerated in s. 10 but do not apply to the s. 18.2 protection. In contrast, s. 20 of the Charter does not refer to discrimination based solely on s. 10 grounds. The logic is not that demonstrating a “connection to the employment” under 18.2 leaves nothing to be decided under s. 20, which would in any case hold only so far as that branch of 18.2 is concerned. Given the general nature of s. 20, and the fact that, like s. 18.2, it also deals with the employment context, it should be read in harmony with s. 18.2. Distinctions based on criminal record that otherwise fall within the scope of the s. 18.2 protection should be deemed non‑discriminatory if they relate to aptitudes or qualifications required for an employment. This ensures that the Charter serves its purpose of preventing a criminal record from being an unnecessary and unjust barrier to employment while not overshooting the scope of the protection. This approach is consistent with the legislation in other Canadian jurisdictions. [43] [60‑62] [65] [75‑76]
If a pardon were to provide an absolute protection as contended, it would result in absurdities. An employer who requires its employees to be of high moral character could justifiably refuse to hire persons who have engaged in questionable activities that fall well short of criminal behaviour, or criminal activities that never formed the subject matter of a charge, or reprehensible acts in respect of which the candidate has been charged but acquitted. However, the same employer would be prohibited from refusing to hire a person who has committed a criminal act that has been proven beyond a reasonable doubt, if that person has obtained a pardon. [68]
The burden is still on the employer to prove that the aptitude or qualification is required and the fact that a person has received a pardon should factor into the requirement analysis. The standard of “good moral character” set out in s. 3 of the Police Act meets the first two steps of the bona fide occupational requirement test, as it is rationally connected to the job and is imposed in good faith. With respect to the third step, in the case of police officers, the hardship is two‑fold: the risk of recidivism and the public perception of the integrity of the police force. The nature of the employment requires the highest standard of moral character. In the case of N, the SPCUM obtained the police reports and statements made at the time of the infraction, as well as the court record. Because the crime was deliberate and N was an adult at the time, it determined that she was not, as required, a person of “good moral character”. The SPCUM was justified in refusing to hire N and thus its actions did not violate the Charter. [74] [81] [85‑87]
Cases Cited
By Deschamps J.
Referred to: Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35; Lévis (City) v. Fraternité des policiers de Lévis Inc., [2007] 1 S.C.R. 591, 2007 SCC 14; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., [2003] 3 S.C.R. 228, 2003 SCC 68.
By Charron J. (dissenting)
Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., [2003] 3 S.C.R. 228, 2003 SCC 68; Kienapple v. The Queen, [1975] 1 S.C.R. 729; Hammerling v. The Queen, [1982] 2 S.C.R. 905; R. v. Daoust, [2004] 1 S.C.R. 217, 2004 SCC 6; Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269, 2002 SCC 62; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Hydro‑Québec v. Syndicat des employé‑e‑s de techniques professionnelles et de bureau d’Hydro‑Québec, section locale 2000 (SCFP‑FTQ), [2008] 2 S.C.R. 561, 2008 SCC 43; Lévis (City) v. Fraternité des policiers de Lévis Inc., [2007] 1 S.C.R. 591, 2007 SCC 14.
Statutes and Regulations Cited
Act respecting police organization, R.S.Q., c. O‑8.1.
By‑law respecting standards of the Sûreté du Québec and municipal police forces for the hiring of constables and cadets, R.R.Q. 1981, c. P‑13, r. 14, s. 2(b), (c).
Canadian Human Rights Act, R.S.C. 1985, c. H‑6 .
Charter of human rights and freedoms, R.S.Q., c. C‑12, ss. 10, 10.1, 18.1, 18.2, 20.
Charter of the French language, R.S.Q., c. C‑11, s. 7(3).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 161 , 334 (b)(ii), 607 , 667 , 730 , 748 , 753 .
Criminal Records Act, R.S.C. 1985, c. C‑47, ss. 2 “pardon”, 5, 6.1.
Education Act, R.S.Q., c. I‑13.3.
Human Rights Act, R.S.P.E.I. 1988, c. H‑12.
Human Rights Act, R.S.Y. 2002, c. 116.
Human Rights Act, S. Nu. 2003, c. 12.
Human Rights Act, S.N.W.T. 2002, c. 18.
Human Rights Code, R.S.B.C. 1996, c. 210.
Human Rights Code, R.S.O. 1990, c. H.19.
Police Act, R.S.Q., c. P‑13, s. 3.
Police Act, R.S.Q., c. P‑13.1.
Authors Cited
Canada. Solicitor General. Proposal for Reform of the Criminal Records Act. Explanatory document by the Solicitor General of Canada. Ottawa: Solicitor General of Canada, July 20, 1991.
Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham, Ont.: Butterworths, 2002.
APPEAL from a judgment of the Quebec Court of Appeal (Robert C.J.Q. and Hilton and Bich JJ.A.), [2006] R.J.Q. 1307, [2006] Q.J. No. 4125 (QL), 2006 CarswellQue 3696, 2006 QCCA 612, upholding a decision of the Human Rights Tribunal, [2002] R.J.Q. 824, [2001] J.T.D.P.Q. No. 17 (QL), 2001 CarswellQue 2785. Appeal dismissed, Binnie and Charron JJ. dissenting.
Pierre Yves Boisvert, Jean‑Nicolas Loiselle and Guy Régimbald, for the appellant.
Pierre‑Yves Bourdeau and Christian Baillargeon, for the respondents.
Hugo Jean, for the intervener the Attorney General of Quebec.
Louis Masson, Albina Mulaomerovic and Gérald Laprise, for the intervener École nationale de police du Québec.
Pier Bélisle and Jacky-Éric Salvant, for the intervener the Prisoners’ Rights Committee.
English version of the judgment of McLachlin C.J. and LeBel, Deschamps, Fish, Abella and Rothstein JJ. delivered by
[1] Deschamps J. — Is a person who has obtained a pardon protected by s. 18.2 of the Charter of human rights and freedoms, R.S.Q., c. C‑12 (“Charter”), on applying for employment as a police officer? The answer to this question is yes, but this does not deprive the employer of the defences available to it when its decision is not based on the stigma attached to the conviction in respect of which the pardon was granted.
1. Facts
[2] In May 1995, S.N. applied for employment as a police officer with the Service de police de la Communauté urbaine de Montréal (“SPCUM”). In November 1995, she received a letter from the SPCUM informing her that her application had been rejected.
[3] S.N. asked why it had been rejected. A personnel officer told her that she did not satisfy the criterion of “good moral character” imposed by the hiring standards, since an inquiry had revealed that she had been caught shoplifting in 1990, when she was 21 years old. She had pleaded guilty to a charge of theft in summary conviction proceedings (s. 334 (b)(ii) of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”)) and had been conditionally discharged. S.N. informed the officer that she had been pardoned, but the SPCUM stood by its decision.
[4] S.N. complained to the Commission des droits de la personne et des droits de la jeunesse (“Commission”). She asserted that the SPCUM had, contrary to s. 18.2 of the Charter, refused to hire her owing to the mere fact that she had been found guilty of a criminal offence.
[5] The Commission investigated the complaint and proposed two measures of redress to the SPCUM: that it pay S.N. $5,000 in moral damages and that it cease to consider her criminal record in applying the good moral character criterion. The SPCUM refused to implement them. The Commission submitted an application to the Human Rights Tribunal (“HRT”) against the SPCUM.
2. Issues and Decisions Below
[6] The SPCUM argued that service as a police officer does not constitute employment and is therefore not subject to s. 18.2 of the Charter. It added that the rejection of S.N.’s application had been based not on her criminal record, which consisted of the one finding of guilt for shoplifting, but on the “good moral character” criterion provided for in the By‑law respecting standards of the Sûreté du Québec and municipal police forces for the hiring of constables and cadets, R.R.Q. 1981, c. P‑13, r. 14 (“By‑law respecting standards for hiring”). The SPCUM further submitted that a pardon resulting solely from the passage of time is not a “pardon” within the meaning of s. 18.2 of the Charter and that, under s. 20 of the Charter, it could take account of the fact that S.N. did not meet the requirements of the job. The SPCUM maintained that it had committed no fault justifying an award of damages.
[7] The HRT concluded that a police officer working for the SPCUM holds employment within the meaning of s. 18.2 of the Charter and that the SPCUM had automatically excluded S.N. from the hiring process because of her criminal record. The HRT held that a pardon that results solely from the passage of time following an order of discharge is a “pardon” within the meaning of s. 18.2 of the Charter. Accordingly, even though S.N.’s offence was connected with employment as a police officer, the SPCUM could not reject her application on the basis that the facts surrounding the incident in which she was caught shoplifting showed that she was not of good moral character. The HRT found that by rejecting it on that basis, the SPCUM had infringed s. 18.2 of the Charter. Since S.N. had given up on becoming a police officer, the HRT ordered the SPCUM, because her dignity had nevertheless been impaired, to pay her $5,000 in moral damages. However, the HRT did not grant the Commission’s request to order the SPCUM to cease considering S.N.’s criminal record in applying the good moral character criterion ([2002] R.J.Q. 824). The case was appealed to the Court of Appeal.
[8] The Court of Appeal affirmed the HRT’s decision ([2006] Q.J. No. 4125 (QL), 2006 QCCA 612), stating that police officers are in an employment relationship and that the SPCUM’s hiring process must be consistent with s. 18.2 of the Charter, which was not the case here. Since S.N. had been pardoned, the SPCUM could not reject her application on the basis that she had been found guilty of a criminal offence or on the basis of the facts of the offence. According to the Court of Appeal, an employer that refuses to hire a candidate solely because of his or her criminal record cannot rely on s. 20 of the Charter as a defence. The Court of Appeal held that there was no reason to intervene on the issue of damages.
[9] The same arguments were made in this Court.
3. Analysis
[10] The issue here concerns the interpretation of s. 18.2 of the Charter, which reads as follows:
18.2. No 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 Court previously considered this provision in Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35, where it identified four conditions that must be met for s. 18.2 to apply (para. 140). There must be:
(1) a dismissal, a refusal to hire or any kind of penalty,
(2) decided on in relation to the person’s employment,
(3) owing to the mere fact that the person was convicted of a penal or criminal offence, and
(4) either the offence must be in no way connected with the employment or the person must have obtained a pardon for the offence.
[11] The instant case concerns a refusal to hire, but this condition for the application of s. 18.2 is not in issue. The appellant’s grounds of appeal relate to the other three conditions: Does a police officer in the SPCUM hold employment within the meaning of s. 18.2 of the Charter? Is a pardon that results solely from the passage of time a “pardon” within the meaning of s. 18.2? And did the SPCUM refuse to hire S.N. owing to the mere fact that she had a criminal record?
3.1 Does a police officer’s relationship with the SPCUM constitute employment within the meaning of s. 18.2 of the Charter?
[12] The appellant argues that service as a police officer must be likened to the office of a judge for the purposes of s. 18.2 of the Charter. It takes the Court’s conclusions in Therrien and applies them to police officers. The appellant’s argument is without merit. In Therrien, Gonthier J. explained his reasons for holding that judicial office is not employment within the meaning of s. 18.2 as follows (at para. 141):
However, the Court of Appeal held that judicial office was not an employment within the meaning intended by s. 18.2, by reason of the history of the judiciary and the nature, characteristics and requirements of the office. These findings in fact reflect the constitutional reality of judicial office, which requires that judges not be subject to any bureaucratic higher authority, or be a party to any relationship of subordination such as is traditionally characteristic of the employer‑employee relationship, other than in respect of certain administrative aspects of the office such as workload allocation and scheduling of court sittings and certain duties associated with the enforcement of judicial ethics, which are assigned to the chief judge: see s. 96 C.J.A. and Ruffo [[1995] 4 S.C.R. 267], at para. 59. In addition, although judges perform their functions for remuneration, their financial security is one of the three essential conditions of judicial independence for the purposes of s. 11 (d) of the Canadian Charter and the preamble to the Constitution Act, 1867 , which require that the right to salary and pension be established by law and that any salary reduction, increase or freeze be the subject of a specific process allowing avoidance of any possibility of real or perceived interference by the Executive: Valente [[1985] 2 S.C.R. 673], at p. 704, and Reference re Remuneration of Judges of the Provincial Court [[1997] 3 S.C.R. 3], at paras. 131 and 287. Finally, the hiring and firing process for judges is substantially different from the normal procedure used for most employments. As the case at bar illustrates, the appointment and removal of members of the judiciary are governed by a series of constitutional requirements that are intended to protect their security of tenure: Valente, at p. 698.
[13] Police officers do not enjoy the constitutional protection judges are granted to ensure that they are not subject to any bureaucratic higher authority. The police officer’s role is of course essential to any organized society, since it ensures order and security. Police officers are an integral part of the judicial system established to punish delinquent behaviour and prevent wrongdoing. However, this does not mean that they do not hold employment. Furthermore, as the Court of Appeal noted (at para. 41) after reviewing the legislative provisions governing service as a police officer, [translation] “police officers are subject to their superiors, to the executive power of the State, and to the general supervisory powers of their employer in the exercise of their tasks” (see the Act respecting police organization, R.S.Q., c. O‑8.1; the Police Act, R.S.Q., c. P‑13; and the By‑law respecting standards for hiring). Although some of this legislation — which was in force at the relevant time — has since been replaced, the status of police officers remains the same. The relationship of subordination that characterizes the employment relationship of police officers clearly distinguishes them from judges. Thus, police officers hold employment and can benefit from the protection of s. 18.2 of the Charter.
3.2 Is a statutory pardon a “pardon” within the meaning of s. 18.2?
[14] The appellant submits that the use of the word “pardon” in s. 18.2 of the Charter is a static interjurisdictional reference and that in enacting s. 18.2 in 1982, the legislature was concerned only with pardons as they existed at the time. According to this interpretation, the protection afforded someone who is granted a pardon under the Criminal Records Act, R.S.C. 1985, c. C‑47 (“CRA ”), has been virtually eliminated as a result of the amendments made by Parliament to the CRA in 1992. This argument cannot be accepted. A restrictive interpretation such as this is not necessary merely because the word “pardon” is used in the French version of s. 18.2 of the Charter. The use of the word “réhabilitation” in the French version of the CRA does not indicate a substantive change, since the single word “pardon” is used in the English versions of both statutes. Nor do the administrative changes alter the concept of a pardon. This word has a more general meaning. The Quebec legislature has neither defined the scope of its reference to the federal law respecting pardons nor limited that reference in time. Its incorporation of this concept in the Charter must be seen as concerning the pardon in the law as it stands at the time the reference is applied. As the law now stands, the administrative pardon is a form of pardon. The word encompasses both a pardon granted by royal prerogative (s. 748 Cr. C.) and a pardon under the CRA .
[15] The 1992 amendments to the CRA specifically affect someone who is granted a discharge. As a result of these amendments, a pardon is obtained solely through the passage of time. The person in question receives no document attesting to his or her pardon. Parliament made this amendment in response to a report by an interdepartmental committee on the reform of the CRA : Proposal for Reform of the Criminal Records Act (July 20, 1991), Explanatory document by the Solicitor General of Canada, at p. 1. The report began by referring to the purpose of a pardon:
The primary aim of a pardon, granted under the Criminal Records Act (CRA ) is the removal, as completely as possible, of the negative consequences of conviction once the offender has fulfilled the sentence and enough time has elapsed to establish, with some degree of certainty, law abiding behaviour.
[16] In the case of discharged persons, the reform was dictated by a concern to “[address] the anomaly of requiring those persons receiving discharges (and therefore no conviction) to apply for a pardon” (p. 5). Under s. 730(3) Cr. C., a person found guilty of an offence who is discharged is deemed not to have been convicted of the offence. The new process was therefore designed to further recognition of the distinction between a person who is found guilty and discharged and a person who is convicted and sentenced under the Criminal Code . As a result of the amendments, if more than three years have elapsed since a conditional discharge or if more than one year has elapsed since an absolute discharge, no record of the discharge may be disclosed to any person, nor may the existence of the record be disclosed. The interdepartmental committee considered this time period necessary to meet the requirements for proving previous convictions or discharges, appealing and pleading autrefois convict (ss. 667 and 607 Cr. C.). It also wanted to ensure that discharged persons would be provided the same protection as before the amendments (report, at p. 6). Thus, the amendments to the CRA were not intended to deprive discharged persons of the benefit of that statute.
[17] The appellant’s argument that a pardon under the CRA cannot be considered a “pardon” within the meaning of s. 18.2 is therefore based neither on the wording of the Charter nor on the history of the amendments made to the CRA in 1992.
[18] Moreover, since the protection against the disclosure of information that the CRA affords a person granted a conditional discharge is effective only once three years have elapsed, there is no basis for concluding that a person who is discharged under s. 730(1) Cr. C. benefits from the effects of a pardon as soon as the order of discharge is made.
[19] It remains to be asked what the effects of the pardon are. In its report, the interdepartmental committee stated that the purpose of a pardon is to remove, as completely as possible, the consequences of conviction. This purpose is pursued in the CRA by providing that a pardon has the following effects:
5. The pardon
(a) is evidence of the fact
(i) that, in the case of a pardon for an offence referred to in paragraph 4(a), the Board, after making inquiries, was satisfied that the applicant for the pardon was of good conduct, and
(ii) that, in the case of any pardon, the conviction in respect of which the pardon is granted or issued should no longer reflect adversely on the applicant’s character; and
(b) unless the pardon is subsequently revoked or ceases to have effect, requires the judicial record of the conviction to be kept separate and apart from other criminal records and removes any disqualification or obligation to which the person so convicted is, by reason of the conviction, subject by virtue of the provisions of any Act of Parliament, other than section 109 , 110 , 161 , 259 , 490.012 or 490.019 of the Criminal Code or subsection 147.1(1) of the National Defence Act , or of a regulation made under an Act of Parliament.
Although the definition of “pardon” in s. 2 CRA does not refer to the mechanism that applies when a person is discharged, the effect is the same. It can be concluded from a contextual interpretation in keeping with the spirit of the CRA that s. 5 applies to discharged persons as well as to convicted persons.
[20] As Gonthier J. noted in Therrien, the use of the conditional in s. 5(a)(ii) is significant. A pardon does not have an absolute effect and does not erase the past. Neither a discharge nor a pardon allows a person to deny that he or she was found guilty of an offence (Therrien, at paras. 116 and 122). The facts surrounding the offence did occur, but the pardon helps obliterate the stigma attached to the finding of guilt. Consequently, when the time period provided for in the CRA elapses or a pardon is granted, the opprobrium that results from prejudice and is attached solely to the finding of guilt must be resisted, and the finding of guilt should no longer reflect adversely on the pardoned person’s character. It must be presumed that the person has completely recovered his or her moral integrity.
[21] If the pardoned person is presumed to have recovered his or her moral integrity, can an employer consider the facts that gave rise to the finding of guilt when deciding either to refuse to hire the person or to dismiss him or her? The respondent and the appellant advocate different approaches to this question. Regarding the application of s. 18.2, the answer to the question lies in the real reason for the refusal to hire or the dismissal.
3.3 Was the refusal to hire S.N. based on the mere fact of her criminal record?
[22] The appellant makes three arguments concerning the reason for the refusal to hire. First, it argues that, under the Police Act and the By‑law respecting standards for hiring, it has a legal obligation to verify the good moral character of every candidate. It submits that its review of the record of the investigation that resulted in the finding of guilt led it to conclude that S.N. was not of good moral character. The appellant also argues that a person’s integrity cannot be dissociated from the duties of a police officer. This standard should therefore be accepted as a required qualification under s. 20 of the Charter. Finally, the appellant argues that it cannot be held civilly liable, since all it did was meet the statutory and regulatory requirements applicable to it. In the circumstances of this case, these three arguments overlap.
[23] The relevant provisions of the Police Act and the By‑law respecting standards for hiring read as follows:
Police Act
3. To become a member of the Police Force, a municipal policeman or a special constable, a person must
. . .
(2) be of good moral character;
(3) not have been found guilty following an information for an offence under the Criminal Code (Revised Statutes of Canada, 1985, chapter C‑46) which, according to the information, was prosecuted by way of indictment;
. . .
By‑law respecting standards for hiring
2. To become a constable or a cadet of the Police Force or of a municipal police force, a person must:
. . .
(b) be of good moral character according to the conclusions of an inquiry to be made by using the form prescribed for such purpose by the Commission particularly as regards his family, social, financial and judicial background;
(c) never have been found guilty or pleaded guilty of an offence under the Criminal Code (R.S.C., 1970, c. C‑34) upon prosecution by way of indictment, or have pleaded guilty upon an information for an offence under the Criminal Code which, according to the information, should be prosecuted by way of indictment;
[24] Being of good moral character and not having a criminal record are separate criteria and are treated as such in the Police Act and the By‑law respecting standards for hiring. They are governed by separate paragraphs. If, as the appellant argues, the facts giving rise to a conviction can on their own be used to reject a candidate for not being of good moral character, this would mean that the provisions concerning a criminal record are redundant. On the other hand, to accept the respondent’s argument that the facts giving rise to a conviction may not be considered in assessing whether a candidate is of good moral character would mean that a pardon would not only restore the convicted person’s reputation but would also erase the past, which is not the case.
[25] There is no doubt that being of good moral character is a qualification required to become or remain a police officer. As Bastarache J. said in Lévis (City) v. Fraternité des policiers de Lévis Inc., [2007] 1 S.C.R. 591, 2007 SCC 14, at para. 43:
. . . most, if not all, criminal offences committed by a municipal police officer will be connected to his or her employment due to the importance of public confidence in the police officer’s abilities to discharge his or her duties.
Not only is a police force, as an employer, entitled to rely on that factor on the basis of the Police Act and the By‑law respecting standards for hiring, but it can also invoke s. 20 of the Charter, according to which a distinction based on an aptitude required for an employment is deemed non‑discriminatory. In this context, the provisions — s. 3(2) of the Police Act and s. 2(b) of the By‑law respecting standards for hiring — dealing with good moral character are merely applications of this general provision of the Charter, which reads as follows:
20. A distinction, exclusion or preference based on the aptitudes or qualifications required for an employment, or justified by the charitable, philanthropic, religious, political or educational nature of a non‑profit institution or of an institution devoted exclusively to the well‑being of an ethnic group, is deemed non‑discriminatory.
[26] An employer is therefore entitled to consider the facts that resulted in a finding of guilt in assessing whether a candidate has the qualifications required for a job. Those facts are inevitably part of the candidate’s past. However, the employer must also consider the fact that the person has been pardoned.
[27] Indeed, the fact that a candidate’s good moral character, and thus his or her entire file, is considered does not justify a decision that is inconsistent with the fact that the candidate has been pardoned. A conviction or, in the case of a discharge, a finding of guilt “should” no longer reflect adversely on a person’s character following a pardon. The positive effect of a pardon as it reflects on a person’s character may, however, be countered by adducing evidence of delinquent behaviour or of facts indicating a lack of probity, although this evidence cannot be limited solely to the finding of guilt.
[28] To justify an objection based on moral character, the employer’s inquiry must uncover conduct or facts that, when considered in light of the circumstances in which the person committed the crime for which the pardon was obtained, support a conclusion that this person is unfit for the job. The employer must show that the decision was not based on the mere fact of the finding of guilt.
[29] Thus, the facts giving rise to a finding of guilt can be helpful in showing that a person is unfit for service as a police officer. In this context, the facts considered at the time the finding of guilt was made may reveal deficiencies that are relevant to the decision the employer must make. The Commission’s position — which, I should add, the Court of Appeal endorsed (paras. 58‑59) — that the facts giving rise to a finding of guilt may not be considered in deciding whether a candidate meets the good moral character criterion provided for in the By‑law respecting standards for hiring must therefore be rejected.
[30] To assess the interaction between ss. 18.2 and 20 of the Charter, a correlation must be established between the protection against the stigma attached to a finding of guilt and the defence available to the employer to counter a complaint of discrimination on the basis of a qualification required for the employment.
[31] A finding of guilt reflects first and foremost on a person’s character. A person who has committed an act for which he or she has been reprimanded under criminal or penal law is believed to be less honest. This stigma may therefore affect the assessment of the person’s ability to meet conditions of employment. Pursuant to s. 18.2, such a stigma is unjustified if the offence was not connected with the employment or if the person has been pardoned. This protection is more limited — it applies only to findings of guilt — than the general protection against discrimination (s. 10 of the Charter), and to avoid its application, the employer need only establish a connection between the offence and the employment. This represents a choice of the legislature. The defence provided for in s. 20 is broader. It encompasses occupational requirements that go beyond a person’s integrity or character. However, an employer that imposes a requirement that is prima facie discriminatory must prove that it would suffer undue hardship if the requirement were not met. Section 18.2 does not require such proof. The l