Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc.

Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc.
Collection
Supreme Court Judgments
Date
2003-11-14
Neutral citation
2003 SCC 68
Report
[2003] 3 SCR 228
Case number
28402
Judges
Gonthier, Charles Doherty; Iacobucci, Frank; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 28402
Decision Content
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
Commission des droits de la personne et des droits de la jeunesse Appellant
v.
Maksteel Québec Inc., a corporation administered by
Ernst & Young Inc., Interim Receiver appointed
by the Court, and Michael Gareau Respondents
Indexed as: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc.
Neutral citation: 2003 SCC 68.
File No.: 28402.
2003: January 20; 2003: November 14.
Present: Gonthier, Iacobucci, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for quebec
Human rights — Equality rights — Discrimination based on criminal record — Dismissal — Employee dismissed while incarcerated for having committed a penal or criminal offence unrelated to his employment — Extent to which s. 18.2 of Charter of Human Rights and Freedoms protects employment of incarcerated person — Whether employer has a duty of reasonable accommodation — Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 18.2.
In 1989, R pleaded guilty to charges of fraud and breach of trust. His sentencing was postponed. On June 26, 1991, while he was working as a maintenance mechanic, R was sentenced to a term of imprisonment of six months less a day. The beginning of the sentence coincided with the beginning of his vacation, which was to end on July 10. On July 15, his employer dismissed him because he did not appear at work on July 11. On July 22, the employer hired a new mechanic. On July 26, R was released on parole. After trying to resume his position, without success, he filed a complaint with the Commission des droits de la personne et des droits de la jeunesse, alleging that he had been dismissed owing to the mere fact of having been convicted of an offence, contrary to s. 18.2 of the Charter of Human Rights and Freedoms. The Quebec Human Rights Tribunal ruled in favour of the complaint. The Court of Appeal reversed that decision.
Held: The appeal should be dismissed. Section 18.2 of the Charter does not protect an employee from dismissal where the real reason is the fact that the employee is not available for work because he or she happens to be incarcerated.
Per Gonthier, Iacobucci, Binnie, Arbour, LeBel and Deschamps JJ.: There is a significant difference between the scope of s. 18.2 and the scope of s. 10 of the Charter. Protection against discrimination based on criminal record applies only in respect of employment and covers only those cases in which the criminal record is the only basis for the decision or the action taken. Section 18.2 contains its own rules governing justification, and accordingly does not require resort to s. 20 of the Charter. If the person has obtained a pardon for the offence committed, whether or not the offence was connected with the employment, the protection is absolute. Moreover, if there is no connection between the criminal record and the employment, the protection is also complete. The finding that there has been an infringement of the right to equality results directly from the differential treatment. The employee’s abilities or potential contribution to the business are not relevant. In the context of an independent justification mechanism being provided in s. 18.2, the “reasonable accommodation” standard established in Meiorin in relation to bona fide occupational requirements plays no role.
Section 18.2 protects the employee from the unjustified social stigma that arises out of a prior conviction. An employee is unfairly stigmatized if the offence committed is not objectively connected with the employment or if the employee has obtained a pardon for it, regardless of the seriousness of the crime committed. In cases in which the action taken by the employer is owed to the mere fact that the individual has a criminal record, the law is broken if the differential treatment results from a perception that the employee is less capable of performing the work, and less worthy of recognition as a human being, because of his or her criminal record. A distinction must be made between the civil consequences of a sentence lawfully imposed on an offender and the unjustified stigmatization he or she may suffer because of a past conviction. Unjustified stigma is the product of prejudice or stereotyping. On the other hand, the sentence is imposed on the employee who committed an act prohibited by the law. Consequently, there is no violation of s. 18.2 where the differential treatment genuinely results from the civil consequences of the sentence itself. Such is the case where an incarcerated employee is truly dismissed because he or she is not available for work. An employee who cannot work because he or she is incarcerated has not been unfairly stigmatized if dismissed. The fact that an incarcerated employee is unavailable is not a consequence of the fact that he or she has a criminal record, but is a civil consequence of the sentence that was lawfully imposed. Moreover, there is no inseverable connection between the conviction and the incarceration, since not all convictions lead to incarceration.
In discrimination cases, the onus is on the complainant to establish prima facie proof that a protected right has been infringed. In the case of s. 18.2, the complainant must establish that he or she has a criminal record and has suffered a reprisal in an employment context, and that the criminal record was the real reason for, or actual cause of, the action taken by the employer. The complainant must also prove that a pardon had been obtained, where applicable. If the employee were required to prove that the conviction was the sole cause that might have motivated the dismissal there would be a risk of eroding the right guaranteed by s. 18.2. For example, in the case of an employee who is incarcerated for a short period of time, the employer could easily conceal its design by claiming to base its action on the fact that the employee was not available. The complainant need therefore only establish that the ground of discrimination alleged was the actual cause of the dismissal. In cases where the sentence of imprisonment affects the employee’s availability, the court will have to be satisfied, on a preponderance of evidence, that the actual cause was the conviction, and that the fact that the employee was not available was not cited as a mere pretext. The employer has the burden of establishing an objective connection between the offence committed and the position held or applied for.
In this case, there are two reasons that could have been the cause of the dismissal: the fact that R had a criminal conviction or the fact that he was not available because he was incarcerated. The Court of Appeal concluded that it could not be deduced from the fact that the employer knew that R was incarcerated that he had been dismissed merely because he had been convicted. The Court of Appeal did not commit any error such as would warrant intervention by this Court.
Per Bastarache J.: While the rights conferred by the Charter must be interpreted broadly and liberally, the courts must nonetheless respect their actual purpose. There is no violation of s. 18.2 unless a conviction that was in no way connected with the employment (or for which the person has been pardoned) is the actual cause of the penalty imposed on the employee. A distinction has to be made between the immediate and proper consequences of a penal or criminal offence, that is, the sentence imposed, and the unfair measures that might be taken against a person later because of a prior conviction that was not connected with his or her present employment or employment for which he or she is applying, or because of a prior conviction for which the person has obtained a pardon. The loss of employment as a result of being imprisoned falls into the first category. Inability to work is a direct consequence of the sentence. The status of former offender, which is the only matter addressed by s. 18.2, does not necessarily result in being unavailable for work. The purpose of the Act is not to eliminate completely the civil consequences of the sentence. Section 18.2 is therefore of no assistance to an incarcerated employee where the actual cause of the dismissal is the fact that he is not available for work.
The acts enumerated in s. 18.2 do not constitute “discrimination” within the definition in s. 10. Where the actual cause of an employee’s dismissal is the conviction for a penal or criminal offence that is in no way connected with his or her employment, s. 18.2 protects the employment and nothing more. In the context of s. 18.2, no duty of accommodation arises.
Cases Cited
By Deschamps J.
Approved: British Columbia (Human Rights Commission) v. British Columbia (Human Rights Tribunal) (2000), 193 D.L.R. (4th) 488, 2000 BCCA 584; referred to: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), [2000] 1 S.C.R. 665, 2000 SCC 27; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; Commission des droits de la personne du Québec v. Cie Price Ltée, J.E. 81-866; Commission des droits de la personne du Québec v. Montréal (Ville de) (1983), 4 C.H.R.R. D/1444; Commission des droits de la personne du Québec v. Ville de Beauport, [1981] C.P. 292; Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35; Commission des écoles catholiques de Québec v. Gobeil, [1999] R.J.Q. 1883; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; B v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 403, 2002 SCC 66; Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; St-Hubert (Ville de) et Syndicat des cols bleus de la Ville de St-Hubert (C.S.D.), [1998] R.J.D.T. 525; St-Jean v. Mercier, [2002] 1 S.C.R. 491, 2002 SCC 15; Schwartz v. Canada, [1996] 1 S.C.R. 254.
By Bastarache J.
Referred to: Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35; Commission des droits de la personne du Québec v. Cie Price Ltée, J.E. 81-866; Commission des
droits de la personne du Québec v. Ville de Beauport, [1981] C.P. 292; Commission des droits de la personne du Québec v. Montréal (Ville de) (1983), 4 C.H.R.R. D/1444; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), [2000] 1 S.C.R. 665, 2000 SCC 27; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Ordon Estate v. Grail, [1998] 3 S.C.R. 437; Boucherville (Ville de) v. Bastien, J.E. 93-1389; Travailleurs et travailleuses unis de l’alimentation et du commerce, local 301W v. Brasserie Molson O’Keefe Ltée, [1995] R.D.J. 329; Syndicat démocratique des salariés de Sommex v. Larocque, J.E. 96-2311; Syndicat du textile de Montmagny inc. v. Cie des fils spécialisés Cavalier inc., [1999] Q.J. No. 1785 (QL); McLaughlan v. Fletcher Challenge Canada Ltd. (2000), 81 B.C.L.R. (3d) 195, 2000 BCCA 584, aff’g sub nom. British Columbia (Human Rights Commission) v. British Columbia (Human Rights Tribunal) (1999), 178 D.L.R. (4th) 546; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; St-Jean v. Mercier, [2002] 1 S.C.R. 491, 2002 SCC 15.
Statutes and Regulations Cited
Act to amend the Charter of Human Rights and Freedoms, S.Q. 1982, c. 61.
Act to amend various legislative provisions respecting the implementation of the Code of Penal Procedure, S.Q. 1990, c. 4, s. 133.
Basic Principles for the Treatment of Prisoners, G.A. Res. 45/111, U.N. Doc. ST/HR/1/Rev. 5 (1994), p. 263.
Canadian Charter of Rights and Freedoms .
Canadian Human Rights Act, R.S.C. 1985, c. H-6, ss. 2 , 15 (a).
Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 10 [am. 1982, c. 61, s. 3], 10.1-18.1, 18.2 [am. 1990, c. 4, s. 133], 19, 20, 20.1.
Convention (No. 111) concerning Discrimination in Respect of Employment and Occupation, 362 U.N.T.S. 31.
Criminal Code, R.S.C. 1985, c. C-46, s. 426 .
Criminal Records Act, R.S.C. 1985, c. C-47 .
Fair Practices Act, R.S.N.W.T. 1988, c. F-2, ss. 2(3), 3(1).
Human Rights Act, S.N.W.T. 2002, c. 18 (not in force).
Human Rights Code, R.S.B.C. 1996, c. 210, s. 13(1), (4).
Human Rights Code, R.S.O. 1990, c. H.19, ss. 5, 10(1), 24(1)(b).
International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3.
Standard Minimum Rules for the Treatment of Prisoners, G.A. Res. 663 C (XXIV) and 2076 (LXII), U.N. Doc. ST/HR/1/Rev. 5 (1994), p. 243.
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948).
Authors Cited
Brunelle, Christian. “La Charte québécoise et les sanctions de l’employeur contre les auteurs d’actes criminels œuvrant en milieu éducatif” (1995), 29 R.J.T. 313.
Caron, Madeleine. “Le droit à l’égalité dans la ‘nouvelle’ Charte québécoise telle que modifiée par le projet de loi 86”, dans Service de la formation permanente, Barreau du Québec, L’interaction des Chartes canadienne et québécoise des droits et libertés de la personne, cours 83. Cowansville, Qué.: Yvon Blais, 1983-84, 115.
Dowd, Marc-André, et Julie Lefevbre. “La protection contre la discrimination fondée sur les antécédents judiciaires en vertu de la Charte des droits et libertés de la personne: ‘il faut qu’une porte soit ouverte ou fermée’”, dans Service de la formation permanente, Barreau du Québec, Développements récents en droit du travail, vol. 153. Cowansville, Qué.: Yvon Blais, 2001, 1.
Québec. Assemblée nationale. Journal des Débats, 3e sess., 32e lég., Commission permanente de la justice, Étude du projet de loi no 86, Loi modifiant la Charte des droits et libertés de la personne, 17 décembre 1982, no 232, p. B-11766.
Québec. Assemblée nationale. Journal des Débats, 3e sess., 32e lég., vol. 26, no 105, 18 décembre 1982, p. 7505.
Singleton, T. J. “La discrimination fondée sur le motif des antécédents judiciaires et les instruments anti-discriminatoires canadiens” (1993), 72 Can. Bar Rev. 456.
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, [2001] R.J.Q. 28, [2000] Q.J. No. 5371 (QL), reversing a judgment of the Quebec Human Rights Tribunal, [1997] R.J.Q. 2891, 33 C.H.R.R. D/414, [1997] J.T.D.P.Q. No. 31 (QL). Appeal dismissed.
Christian Baillargeon, for the appellant.
Alexander Daoussis, for the respondent Michael Gareau.
No one appeared for the respondent Maksteel Québec Inc.
English version of the judgment of Gonthier, Iacobucci, Binnie, Arbour, LeBel and Deschamps JJ. delivered by
1 Deschamps J. — Do the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12 (“Quebec Charter”) and, more specifically, s. 18.2 thereof protect the employment of a person who has been incarcerated?
2 In September 1985, Yvon Roy committed offences involving fraud and breach of trust (s. 426 of the Criminal Code, R.S.C. 1985, c. C‑46 ). In 1989, he pleaded guilty to those charges. His sentencing was postponed. On March 6, 1989, Mr. Roy was hired as a maintenance mechanic by Maksteel Québec Inc. (“Maksteel”), a steel distribution company. On June 26, 1991, he was sentenced to serve a term of imprisonment of six months less a day for the offences committed in 1985. He was incarcerated immediately. The beginning of the sentence coincided with the beginning of his vacation, which was to end on July 10, 1991. By letter dated July 15, 1991, Maksteel dismissed Mr. Roy because he did not appear at work on July 11, 1991. On July 22, 1991, Maksteel Québec Inc. hired a new mechanic to replace Mr. Roy. On July 26, 1991, Mr. Roy was released on parole.
3 On July 29, 1991, Mr. Roy tried to resume his position, without success. On August 12, 1991, he filed a complaint with the appellant, Commission des droits de la personne et des droits de la jeunesse (“Commission”), alleging that he had been dismissed owing to the mere fact of having been convicted of an offence, contrary to s. 18.2 of the Quebec Charter. That section 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.
The Commission investigated and proposed that the employer take remedial measures. No agreement was reached. The Commission applied to the Human Rights Tribunal (“Tribunal”) for redress against Maksteel and its Vice‑President of Finance, Michael Gareau.
4 The Tribunal was of the opinion that s. 18.2 of the Quebec Charter is an expression of recognition for the rights of individuals with a criminal record to work, to be protected from discrimination in employment and to be reintegrated into society. It observed that every provision of the Quebec Charter must be given a large and liberal, purposive interpretation. The Tribunal then found that s. 18.2 protects the employment of a person who is incarcerated. In its view, because imprisonment is the direct result of a conviction, the actual cause of the dismissal is the conviction itself. The Tribunal concluded that this was a case of indirect discrimination which gave rise to a duty to make reasonable accommodation, and that the respondents had failed to discharge that duty. It ordered that the respondents pay Mr. Roy $46,950 in material damages and $5,000 in moral damages: [1997] R.J.Q. 2891.
5 The respondents appealed to the Court of Appeal. That court found that the principles of indirect discrimination and reasonable accommodation did not apply in this case. It held that s. 18.2 does not protect an employee from dismissal where the real reason is the fact that the employee is not available for work because he or she happens to be incarcerated. First, this would be another basis for justifying the dismissal, whereas the provision covers only those cases where the person is dismissed owing to the mere fact that he or she was convicted. Second, the term of imprisonment would interrupt the direct connection between the conviction and the dismissal. Thus, the Court of Appeal concluded that, in this case, Mr. Roy was not dismissed owing to the mere fact that he had been convicted. It accordingly reversed the judgment of the Tribunal. Since then, Maksteel has declared bankruptcy: [2001] R.J.Q. 28. The respondent Gareau is the only remaining respondent in the proceedings.
6 The question in this Court was as follows: was Mr. Roy the victim of a violation of a right protected by s. 18.2 of the Quebec Charter?
7 In the appellant’s submission, an employee who has been incarcerated falls within the scope of s. 18.2. Accordingly, any employee who is convicted and incarcerated, and subsequently dismissed on the ground that he or she is unavailable, has, prima facie, been the victim of discrimination based on the conviction. The appellant presented three arguments in support of that position. First, it contended that the Quebec Charter must be interpreted broadly and liberally, and in a manner consistent with its overall purpose, which is to stop discrimination. Second, it submitted that preserving the employment relationship is directly related to the primary purpose of s. 18.2, which it defined as rehabilitation. And third, it submitted that conviction and incarceration form an indivisible whole.
8 In contrast, Mr. Gareau submitted that an employee who is incarcerated is not covered by s. 18.2. Citing a recent decision of the British Columbia Court of Appeal (British Columbia (Human Rights Commission) v. British Columbia (Human Rights Tribunal) (2000), 193 D.L.R. (4th) 488, 2000 BCCA 584), he argued that the protection afforded by s. 18.2 does not extend to the consequences that result from the sentence imposed on the offender. He submitted that the purpose of s. 18.2 is to protect individuals with a criminal record that is unrelated to their employment from the stigma arising out of their conviction.
9 In order to identify the boundaries of s. 18.2, we must ascertain the scope of the protection afforded by that provision and determine what burden of proof rests on both the employer and the employee.
I. The Scope of Section 18.2
10 It is worth noting that the rights protected by the Quebec Charter must be interpreted broadly and liberally, in order for its objective to be achieved. The latter was stated by this Court in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), [2000] 1 S.C.R. 665, 2000 SCC 27 (“Boisbriand”), at para. 34, as follows: “The preamble suggests that the Charter’s objective is to protect the dignity and equality rights of all human beings and, by logical extension, to eliminate discrimination.” Exceptions, on the other hand, must be narrowly construed (paras. 28‑32). Moreover, although the Quebec Charter adopted in 1976 covers situations that may be different from those covered by the Canadian Charter of Rights and Freedoms , both are intended to protect analogous values, as has been confirmed by the courts that have interpreted them. The interpretation adopted must also be consistent with the terms of the Charters: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”), at para. 43.
11 Furthermore, it is useful to remember the historical context in which the provision at issue was enacted. As the majority of this Court held in the context of the Canadian Charter in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344: “. . . it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore . . . be placed in its proper linguistic, philosophic and historical contexts.” However, the approach taken must be flexible, to allow for a changing conception of human rights to be incorporated: R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at pp. 376‑77.
12 It should also be noted that since the date of the Tribunal's decision, this Court has decided Meiorin, supra, and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (“Grismer”), in which an analysis based on the distinction between direct discrimination and indirect discrimination was eliminated in favour of a unified method.
13 With this interpretive framework in mind, the analysis may be divided into two parts: the context in which s. 18.2 was enacted and the extent of its application. It will then be easier to consider the specific case of the incarcerated employee involved in this appeal.
A. The context in which Section 18.2 was enacted
14 When the Quebec Charter was enacted in 1976, it did not include the provision expressly prohibiting discrimination based on criminal record. Section 10 was the provision available to a person with a complaint of discrimination. Before the Act to amend the Charter of Human Rights and Freedoms, S.Q. 1982, c. 61, came into force, the section read as follows:
10 Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, sexual orientation, civil status, religion, political convictions, language, ethnic or national origin, social conditions or the fact that he is a handicapped person or that he uses any means to palliate his handicap.
Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.
The Commission attempted to persuade the Quebec courts that the expression “social condition”, a prohibited ground of discrimination under s. 10 of the Charter, implicitly contained protection against distinctions based on criminal record: C. Brunelle, “La Charte québécoise et les sanctions de l’employeur contre les auteurs d’actes criminels œuvrant en milieu éducatif” (1995), 29 R.J.T. 313, at p. 319, note 17, and M.‑A. Dowd and J. Lefevbre, “La protection contre la discrimination fondée sur les antécédents judiciaires en vertu de la Charte des droits et libertés de la personne: ‘il faut qu’une porte soit ouverte ou fermée”’, in Développements récents en droit du travail (2001), 1, at p. 5‑6. The courts did not accept that interpretation. They held that the ordinary
meaning of the expression “social condition” did not include having a criminal record. For example, in Commission des droits de la personne du Québec v. Cie Price Ltée, J.E. 81‑866 (Sup. Ct.), Bernier J. rejected the definition advanced by the Commission. He defined the expression as [translation] “refer[ring] to social class or social status as [determined by] birth, education, income and occupation” (p. 20 of full text). However, Bernier J. did acknowledge that a criminal record could, in some circumstances, stigmatize a person who had been convicted of an offence (at p. 22 of full text):
[translation] . . . the legislative body which has jurisdiction in this respect, that is the federal government, since the case involves trafficking in a narcotic, has itself acknowledged that the fact that an individual has a criminal record could harm his or her reputation unless a pardon were granted as provided in section 5 (a) of the Criminal Records Act (R.S.C. 1970, chapter 12, 1st Supplement [now R.S.C. 1985, c. C‑47 ]). . . .
(See also Commission des droits de la personne du Québec v. Montréal (Ville de) (1983), 4 C.H.R.R. D/1444 (Que. Sup. Ct.).)
15 At that time, the Quebec courts were also of the opinion that a distinction based on having a criminal record could not infringe the dignity of individuals with a criminal past. In Commission des droits de la personne du Québec v. Ville de Beauport, [1981] C.P. 292, Judge Desjardins said (at pp. 297 and 300):
[translation] . . . discrimination based on an individual’s criminal record is not based on the individual’s “social condition”, because it is not based on the position that he or she holds in society; rather, it is based on the unlawful conduct engaged in by the individual, regardless of the position he or she occupies in the social order.
. . .
. . . if we consider a criminal record to be one of the things on which a distinction, exclusion or preference could not be based, it is much more difficult to determine how such a distinction, exclusion or preference destroys a fundamental right or freedom. A criminal record is the direct consequence of unlawful acts intentionally committed by the person with that record. . . . That person could certainly not claim to have been denied equality of value and dignity . . . when it was the person himself or herself who impaired that value and dignity by committing the acts that resulted in the convictions.
16 When the Commission lost in the courts, it turned to the legislature: Brunelle, supra, at p. 321. In 1982, the Commission was asked to comment on Bill 86 (Act to amend the Charter of Human Rights and Freedoms), and it proposed that the legislature include the following provision in the Quebec Charter:
[translation] In the Charter, the expression “social condition” shall be interpreted as including having a criminal record.
17 The legislature did not agree with that proposal, and instead enacted s. 18.2, the initial version of which read as follows (National Assembly of Québec, Journal des débats, 3rd Sess., 32nd Leg., Commission permanente de la justice, Étude du projet de loi no 86, December 17, 1982, No. 232, at p. B‑11766):
[translation] 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 and five years have passed since the conviction, or if the person has obtained a pardon for the offence.
18 Except for two amendments that are not in issue in this case, one of which was made in 1982 during legislative consideration of the bill and the other of which occurred in 1990 (Act to amend various legislative provisions respecting the implementation of the Code of Penal Procedure, S.Q. 1990, c. 4, s. 133), this is the text that was in force at the time of the events that concern us here.
19 This text undoubtedly reflects a social choice made at that time, but also the constitutional limitation on the province’s power in relation to protection against discrimination based on criminal record. Whatever the provincial legislature’s objective may have been, it was not within its power to eliminate all of the stigma that attaches to a conviction. We need only note that the Criminal Records Act, R.S.C. 1985, c. C‑47 , as well as the ability to impose a harsher sentence for repeat offences in criminal cases, are within the jurisdiction of the Parliament of Canada, and that all of the ramifications of the exercise of that power are beyond the control of the National Assembly.
B. Extent of the protection provided by Section 18.2
20 It is evident from this brief historical review that the legislature’s decision, in 1982, to enact a provision prohibiting discrimination based on criminal record came in response to the conservative approach taken by the Quebec courts (Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35, at para. 137). The legislature was sensitive to the unfavourable treatment suffered by individuals who had been in trouble with the law. Those individuals have traditionally been stigmatized and excluded from a range of activities: T. J. Singleton, “La discrimination fondée sur le motif des antécédents judiciaires et les instruments anti‑discriminatoires canadiens” (1993), 72 Can. Bar Rev. 456. It is interesting to note, however, that the legislature did not incorporate the protection against discrimination based on criminal record into the list of other grounds of discrimination in s. 10 of the Quebec Charter. It chose to make this an independent protection.
21 Protection against discrimination based on criminal record does not apply universally. First, unlike the grounds enumerated in s. 10, it applies only in respect of employment: “No one may dismiss, refuse to hire or otherwise penalize a person in his employment . . .”. Second, it covers only those cases in which the criminal record is the only basis for the decision or the action taken: “. . . owing to the mere fact that he was convicted of a penal or criminal offence . . .”. And third, it is different in that the employer’s justification is circumscribed by the words of the provision itself: “. . . if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence”. If the person has obtained a pardon for the offence committed, whether or not the offence was connected with the employment, the protection is absolute. Moreover, if there is no connection between the criminal record and the employment, the protection is also complete.
22 As Gonthier J. observed in Therrien, supra, at para. 145, s. 18.2 is a self‑contained provision. It provides both for the employee to have a right to be protected against any unfavourable treatment resulting from his or her conviction (“the right”) and for there to be no protection if there is a connection between the offence and the employment and the employee has not obtained a pardon (“the justification”). Section 18.2 therefore contains its own rules governing justification, and accordingly does not require resort to s. 20 of the Quebec Charter (Therrien, supra, at para. 145).
23 The right to treatment equal to that given other applicants or employees who do not have a record is stated unequivocally: “No one may . . . penalize a person in his employment . . .”. The simple fact that an individual was treated differently owing to a prior conviction thwarts the objective of protection against unlawful discrimination. The finding that there has been an infringement of the right to equality results directly from the differential treatment.
24 The fact that the justification mechanism is incorporated into the protection itself constitutes an additional indication that this protection is simpler to apply than the protection provided in ss. 10 and 20 of the Quebec Charter. Under ss. 10 and 20, differential treatment based on one of the enumerated grounds is prohibited if it is demonstrated that the distinction impairs the right to equality and if the employer is able to accommodate the characteristics of the employee in question without experiencing undue hardship.
25 In the case of protection against the stigma that arises out of a criminal record, the justification is circumscribed. The employee’s abilities or potential contribution to the business are not relevant. A connection with the employment is the only possible justification, and it is limited by obtaining a pardon.
26 In the context of an independent justification mechanism being provided in s. 18.2 itself, the “reasonable accommodation” standard established in Meiorin in relation to bona fide occupational requirements plays no role. If there is a connection to the work between the record and the employment and a pardon has not been obtained, then the employer is not obliged to prove that it would experience undue hardship as a result of accommodating the employee’s criminal record. The employer may rely on the absolute presumption that it is entitled to refuse to hire, or to take other action against, an employee who has committed an offence that is connected with his or her employment if the employee has not obtained a pardon. On the other hand, that is the only ground on which the employer may rely. In addition to the fact that the independent nature of the provision means that it does not lend itself to incorporating the concept of accommodation, it must be noted that from a conceptual standpoint, it is difficult to incorporate accommodation into the context of s. 18.2: if the employee’s right to equality is violated and the employer cannot take advantage of the justification set out in the Quebec Charter, the employee will be entitled to the appropriate redress. There is therefore no question of accommodation, properly so called, because this is an absolute prohibition. Either the individual is entitled to be employed in the job for which he or she was hired, or the individual is not so entitled.
27 To summarize, I find that there is a significant difference between the scope of s. 18.2 and the scope of s. 10. While s. 10 uses the mechanism of protection against discrimination on the basis of enumerated grounds to provide for the right to equality in all spheres of activity, s. 18.2 offers protection that is narrower in scope but easier to administer. In employment, an employee who has been convicted and obtained a pardon, or who has committed an offence that is not connected with the employment, need not endure any stigma arising out of the conviction. Section 18.2, therefore, protects the employee from the unjustified social stigma that arises out of a prior conviction.
28 Despite the fact that s. 18.2 is independent, it is directly related to the general objective of the Quebec Charter in respect of discrimination in employment. The Charter prohibits distinctions based on personal characteristics that are irrelevant to an individual’s ability to do the work. Assuming having a criminal record is a personal characteristic, it is not relevant to one’s ability to do the work when there is no connection with the employment or a pardon has been obtained. The extent to which an employee who is incarcerated is protected by s. 18.2 must be determined in relation to that rationale.
C. The specific case of an employee who is incarcerated
29 As noted earlier, s. 18.2 is intended to protect individuals from unjustified social stigma that operates to exclude a person with a criminal conviction from the labour market. That is the purpose of the provision.
30 An employee is unfairly stigmatized if the offence committed is not objectively connected with the employment or if the employee has obtained a pardon for it. This is true regardless of the seriousness of the crime committed. Accordingly, with the exception of the justification, the law is broken if the differential treatment results from a perception that the employee is less capable of performing the work, and less worthy of recognition as a human being, because of his or her criminal record. Quebec society has changed since the decisions cited earlier, in which it was held that a distinction based on having a criminal record could not infringe the dignity of an individual.
31 It is thus important to note that the protection applies only to cases in which the action taken by the employer is owed to the mere fact that the individual has a criminal record. Accordingly, the protection is of no avail if the employee suffers a reprisal because of a disciplinary offence or is laid off for administrative reasons.
32 As well, we must make a distinction between the civil consequences of a sentence lawfully imposed on an offender and the unjustified stigmatization he or she may suffer because of a past conviction. Unjustified stigma is the product of prejudice or stereotyping. On the other hand, the sentence is imposed on the employee who committed an act prohibited by the law. Consequently, there is no violation of s. 18.2 where the differential treatment genuinely results from the civil consequences of the sentence itself. Such is the case where an incarcerated employee is truly dismissed because he or she is not available for work. To take an example that is not likely to arouse disagreement, there is the employee who has been sentenced to life in prison. In such a case, dismissal is not the result of the stereotyped application of a personal characteristic that is not related in any way to the employee’s ability to do the work. In other words, an employee who cannot work because he or she is incarcerated has not been unfairly stigmatized if dismissed. Rather, the dismissal arises out of the fact that the employee is not available, which is itself an inescapable consequence of the deprivation of liberty lawfully imposed on an employee who has committed a prohibited act.
33 Every incarcerated offender must suffer the consequences that result from being imprisoned, namely loss of employment for unavailability. I therefore cannot accept the appellant’s argument that there is an inherent connection between not being available and the distinction that is prohibited by s. 18.2. Contrary to the decisions cited by the appellant, in which the employee was unavailable as a result of some individual status (a person with a disability, a pregnant woman, a Jewish person), the fact that an incarcerated employee is unavailable is not a consequence of his or her status as a “convicted person”, that is, of the fact that he or she has a criminal record. It is a civil consequence of the sentence that was lawfully imposed. Section 18.2 does not protect a convicted person against that consequence.
34 I adop