Supreme Court Judgments

                                                 SUPREME COURT OF CANADA

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.

* 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 legislature has therefore 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.  A special rule prevails over a general rule.

[32] Unlike my colleague Charron J., I am unable to accept the appellant’s argument that the comments made in Therrien and in 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, namely that s. 20 cannot be applied to counter the protection regarding findings of guilt, do not reflect the law.  A person who is pardoned is entitled to all the benefits flowing from the pardon.  Section 18.2 does not distinguish the pardon of the Criminal Code  from that of the CRA .  The protection of a pardon obtains even if there is a connection with the employment.  It cannot be denied solely because it would deprive the employer of the justification based on the connection with the employment: that is the very purpose of the exception.  The only case where a pardon will be determinative for a complainant is one in which a connection with the employment can be established.  Thus, to accept that s. 20 allows the employer to rely on past findings of guilt despite the pardon would involve a surprising interpretation according to which a justification that is not applicable under s. 18.2 could be raised under s. 20.  I find it hard to imagine that this was the objective being pursued when s. 18.2 was enacted.  In the other Canadian jurisdictions where discrimination based on prior convictions is prohibited, the protection is explicitly subject to a defence based on the aptitudes required for a job.  In order to respect each legislature’s choice, a court must consider such a defence in light of the provisions applicable to the case before it (Maksteel, at paras. 42 and 54, and reasons of Charron J., at para. 76).

[33] These principles do not affect the criterion according to which exemplary probity is an essential qualification for employment as a police officer.  Indeed, this is why it is difficult to imagine a crime that would not be connected with employment as a police officer.  Moreover, the purpose of the protection provided for in s. 18.2 of the Charter is to require an employer to presume that a candidate who has been pardoned (or whose finding of guilt is not connected with the employment) is not of bad character or dubious integrity owing to the mere fact of having been found guilty of an offence.  There is no exception to this rule where police officers are concerned.  As I mentioned above, this does not mean that the good moral character criterion may not be relied on by an employer against whom a complaint under s. 18.2 is made.  An employer 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 with 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.  While it is normally the candidate or employee who must prove the elements of a complaint of discrimination, where the employer submits that there was a reason other than the one alleged in the complaint, it is then up to the employer to prove that its decision was not based solely on the stigma attached to the finding of guilt (Maksteel, at paras. 48 and 53).  In other words, the employer must prove that it is outside the framework of s. 18.2, which prohibits discrimination based on the mere fact of the finding of guilt, and that it is justified in relying on s. 20.

[34] In the case at bar, the SPCUM claims to have concluded that S.N. lacked integrity after a thorough review of the file.  The HRT’s findings of fact are clear, however.  At the relevant time, the SPCUM was rejecting anyone found guilty of shoplifting, regardless of whether the person had been pardoned.  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.

[35] The appellant cites the example of a person found guilty of sexual assault who is pardoned.  This example is an alarmist one.  It disregards the provisions applicable in sexual assault cases and cannot be used by the SPCUM to sidestep its burden of proof.  I would hope that an employer that received a job application from a person who had been found guilty of sexual assault would conduct an inquiry more satisfactory than the one conducted by the SPCUM in this case.  It is also worth mentioning that stricter controls are likely to be imposed in respect of sex crimes than of other crimes (see, for example, ss. 161 and 753 Cr. C.).  In particular, special measures exist in respect of sex crimes in the field of education:  Education Act, R.S.Q., c. I‑13.3.  Thus, the spectre raised by the appellant cannot make up for the lack of evidence supporting the rejection of S.N.’s application.

[36] Finally, the appellant submits that it cannot be ordered to pay damages, because it complied with the Police Act and the By‑law respecting standards for hiring. In addition to the other arguments that can be made against this submission, the above‑quoted passages from the legislation in question show that the rejection of S.N.’s application was required by no provision in force at the time, since the offence was a summary conviction offence.  The Police Act has since been replaced by the Police Act, R.S.Q., c. P‑13.1.  The principles that might be relied on under the new legislation need not be analysed, however, as it does not apply here.

4.  Conclusion

[37] 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 circumstances, the HRT’s finding that S.N.’s application was rejected owing to the mere fact that she had been found guilty of a criminal offence must be upheld.

[38] For these reasons, I would dismiss the appeal with costs.

The reasons of Binnie and Charron JJ. were delivered by

Charron J. (dissenting) —

1.  Overview

[39] S.N. applied to become a police officer with the Service de police de la Communauté urbaine de Montréal (“SPCUM”).  During the course of the selection process, the SPCUM discovered that, a few years earlier, S.N. had been found guilty of theft.  After looking into the circumstances of the offence, the SPCUM rejected S.N.’s candidacy based on the fact that she was not, as required by s. 3 of the Police Act, R.S.Q., c. P‑13, a person of “good moral character”.  The question on this appeal is whether the SPCUM violated S.N.’s rights under the Quebec Charter of human rights and freedoms, R.S.Q., c. C-12 (“Charter”).

[40] The issue arises because S.N. was sentenced to a conditional discharge under s. 730 (736 at that time) of the Criminal Code , R.S.C. 1985, c. C-46 , for the offence and, following the requisite passage of time, her criminal record was sealed pursuant to s. 6.1  of the Criminal Records Act , R.S.C. 1985, c. C‑47 .  S.N. maintains that the sealing of her record is the equivalent of a pardon and that, consequently, the SPCUM’s refusal to hire her because of her criminal past constituted discrimination under s. 18.2 of the Charter.  Section 18.2 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.

[41] The SPCUM takes the position that s. 18.2 of the Charter does not apply for several reasons:  (1) the position of police officer does not constitute “employment”; (2) the automatic sealing of S.N.’s criminal record under s. 6.1  of the Criminal Records Act   is not a “pardon”; and (3) the rejection of her candidacy was not based on the “mere fact” that she was found guilty of a criminal offence but, rather, on the circumstances surrounding the commission of the offence.  Alternatively, the SPCUM argues that s. 18.2 must be read in conjunction with s. 20 of the Charter which allows for the rejection of S.N.’s candidacy based on the fact that she did not have “the aptitudes or qualifications” to become a police officer.  Section 20 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.

[42] I have had the benefit of reading the reasons of Deschamps J.  I agree with my colleague that the position of police officer constitutes “employment” for the purposes of s. 18.2 of the Charter.  I also agree that the sealing of the record of an absolute or conditional discharge, once the statutory time period set out in s. 6.1  of the Criminal Records Act  has passed, is the functional equivalent of a “pardon” within the meaning of s. 18.2. However, I respectfully disagree that there was a violation of the Charter in this case. I take a different view on the proper analytical framework for dealing with alleged discrimination based on criminal record under the Charter.

[43] In my view, ss. 18.2 and 20 can and should be read harmoniously in the context of the Charter as a whole.  The obiter statements in two 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.  These statements were based on the fact that s. 18.2 has its own internal justification mechanism and that resort to the “aptitudes or qualifications” requirement for the employment contained in s. 20 would duplicate this mechanism:  Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35, at para. 145; 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, at paras. 21-22.  I agree that where the employer can successfully except his action or decision from the scope of s. 18.2 by showing that there is a connection between the offence and the employment, resort to s. 20 is unnecessary. In such cases, the s. 18.2 protection against discrimination based on criminal record simply does not apply.   However, where the s. 18.2 protection does apply, as in this case, I see no reason why the general grounds for justification contained in s. 20 should be carved out of the Charter.  Indeed, the opposite conclusion is not only inconsistent with the language, structure and intent of the Charter, it would result in many absurdities.

[44] For the reasons that follow, I conclude that the SPCUM was justified in refusing to hire S.N. and thus its actions did not violate the Charter.  I would therefore allow the appeal, set aside the judgment in the court below, and dismiss the action with costs throughout.

2.  The Facts

[45] In August 1990, S.N. was arrested for shoplifting approximately $200 worth of clothes and accessories from a department store.  She was 21 years old at the time.  In May 1991, she pleaded guilty to the offence of theft and received a conditional discharge. Following the requisite passage of time, her criminal record was sealed pursuant to s. 6.1  of the Criminal Records Act .

[46] In 1995, S.N. applied to become a police officer with the SPCUM. S.N. did not reveal that she had been in trouble with the law because she believed, based on her reading of a letter received from the RCMP, that the sealing of her record effectively erased the incident from her past.  Further, the application form did not require disclosure of pardoned offences.

[47] As part of the selection process, the SPCUM conducted an investigation to determine whether she met the criteria set out in s. 3 of the Police Act, and s. 2 of 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.  Among other qualities, both the Act and the By-law require the candidate to be a person of “good moral character”.  The investigation therefore included checking for any criminal activities in the candidate’s past.

[48] Upon discovering that S.N. had been found guilty of theft, the SPCUM obtained a copy of the reports and statements made at the time of the arrest, as well as the court records.  Based on its review of the circumstances of the offence, particularly the fact that S.N. was 21 years old at the time, the SPCUM concluded that S.N. did not meet the requisite criterion of “good moral character”.  Her candidacy was therefore rejected on this basis.

[49] S.N. lodged a complaint with the Commission des droits de la personne et des droits de la jeunesse, alleging that the SPCUM discriminated against her based on a criminal offence for which she had received a pardon, contrary to s. 18.2 of the  Charter.  The Commission brought a complaint against the SPCUM before the Human Rights Tribunal. The Tribunal found that the SPCUM violated s. 18.2 of the  Charter and ordered it to pay $5,000 in damages ([2002] R.J.Q. 824).  The decision was upheld on appeal before the Quebec Court of Appeal ([2006] Q.J. No. 4125 (QL), 2006 QCCA 612).  The SPCUM further appeals before this Court.

3.  Analysis

[50] In order to determine whether the SPCUM acted improperly in rejecting S.N.’s application, it is essential to understand what the Charter protects, and what it does not.  Before turning to this question, I will comment briefly on an issue which, although not raised by the parties, should be addressed. The law in Quebec provides that the English and French versions of statutes are equally authoritative: Charter of the French language, R.S.Q., c. C‑11, s. 7(3).  An issue therefore arises from the difference between the English and French versions of s. 18.2.  For convenience, I reproduce both versions here:

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.

18.2.  Nul ne peut congédier, refuser d’embaucher ou autrement pénaliser dans le cadre de son emploi une personne du seul fait qu’elle a été déclarée coupable d’une infraction pénale ou criminelle, si cette infraction n’a aucun lien avec l’emploi ou si cette personne en a obtenu le pardon.

[51] The French version of s. 18.2 refers to a person who has been “déclarée coupable” (found guilty) of a criminal or penal offence whereas the English text refers to a person being “convicted” (condamnée).  All persons who are convicted are found guilty of the offence, however, the converse is not true. Persons who are found guilty are not all convicted.  For example, some are granted an absolute or conditional discharge under s. 730  of the Criminal Code .  Or, in cases where the principle in  Kienapple v. The Queen, [1975] 1 S.C.R. 729, applies, a stay will be entered to avoid multiple convictions for the same delict: Hammerling v. The Queen, [1982] 2 S.C.R. 905.  This case falls in the former category.  The relevant part of s. 730 reads as follows:

730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

730. (1) Le tribunal devant lequel comparaît l’accusé, autre qu’une organisation, qui plaide coupable ou est reconnu coupable d’une infraction pour laquelle la loi ne prescrit pas de peine minimale ou qui n’est pas punissable d’un emprisonnement de quatorze ans ou de l’emprisonnement à perpétuité peut, s’il considère qu’il y va de l’intérêt véritable de l’accusé sans nuire à l’intérêt public, au lieu de le condamner, prescrire par ordonnance qu’il soit absous inconditionnellement ou aux conditions prévues dans l’ordonnance rendue aux termes du paragraphe 731(2).

[52] Hence, the English text implies that s. 18.2 does not apply to pardons that result from discharges whereas the French text would have the protection apply to all forms of pardons.

[53] This Court has on a number of occasions elaborated on the appropriate method for interpreting bilingual legislative provisions:  see, e.g., 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.  These cases suggest a two-step approach. The first step is to look for a shared meaning between the two provisions, which often involves adopting the more narrow version.  In this case, this “shared meaning” approach would lead us to adopt the more restricted scope of the protection under the English version of s. 18.2.  However, if this approach would lead to a meaning that is contrary to the legislature’s intention, other principles of interpretation should apply.  The second step therefore involves comparing the shared meaning to Parliament’s intent to determine whether it is consistent with that intent.

[54] As explained by Deschamps J., the sealing of a criminal record of a person who has received a discharge under s. 6.1  of the Criminal Records Act  is the functional equivalent of a pardon.  Indeed, there is no mechanism under that Act for a person who has received a discharge to apply for a pardon — the criminal record is automatically sealed with the simple passage of time. While this automatic sealing of the criminal record is not technically defined as a pardon, it is apparent from reading the provision in  context and having regard to the legislative intent in passing this provision that it is functionally equivalent to other forms of pardon.  In turn, a large and liberal approach to the Charter would suggest that the legislature intended to extend the s. 18.2 protection to all persons who have received a pardon, including those whose criminal records have been sealed following a discharge.

[55] I therefore conclude that the French version of s. 18.2 is more consistent with the intention of the legislature and that the protection extends to all persons who have been found guilty of a criminal or penal offence in respect of which they have received some form of pardon.

[56] I now turn to a review of s. 18.2 in the context of other relevant Charter provisions.

[57] In reviewing the relevant provisions of the Charter, it is important to bear in mind the common rule of interpretation that statutory provisions are to be read in their immediate context and in the context of the Act as a whole:  R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 281.  As I will explain, a holistic and purposive reading of the Charter leads me to the conclusion that ss. 18.2 and 20 of the Charter can and should be read in harmony. 

[58] The prohibited grounds of discrimination are largely set out in s. 10 of the Charter:

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, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

[59] It is noteworthy that the protection from discrimination based on the mere fact that a person has been found guilty of a criminal or penal offence (which I refer to throughout as “discrimination based on criminal record”) does not form part of the enumerated grounds under s. 10.  Rather, the protection is provided for separately in s. 18.2.  Most notably, in contrast to the s. 10 prohibited grounds of discrimination, the s. 18.2 protection does not apply universally — it is limited to the employment context.  The scope of the protection is further circumscribed in two significant respects.  It only applies if (1) the basis for the decision or action taken is “the mere fact” of conviction; and (2) “the offence was in no way connected with the employment or if the person has obtained a pardon for the offence”.  I will return later to the scope of the s. 18.2 protection.  For the moment, I will focus on the general structure of the Charter.

[60] Certain provisions of the Charter make explicit reference to the grounds enumerated in s. 10 and further delineate the scope of the protection on those grounds, but make no reference to s. 18.2.  Quite clearly, these provisions do not apply to the s. 18.2 protection.  For example, s. 10.1 states that “[n]o one may harass a person on the basis of any ground mentioned in section 10.”  Another example which is more relevant to the question that occupies us is found in s. 18.1.  It provides as follows:

18.1.  No one may, in an employment application form or employment interview, require a person to give information regarding any ground mentioned in section 10 unless the information is useful for the application of section 20 or the implementation of an affirmative action program in existence at the time of the application.

The prohibition contained in s. 18.1 is specifically limited to s. 10 grounds.  Therefore, as this Court held in Therrien, the Charter does not prevent an employer from asking a prospective employee whether she has had any trouble with the law, and this, even when the candidate has obtained a pardon in respect of the crime in question (paras. 136-38).

[61] In contrast, s. 20 of the Charter does not refer to discrimination based solely on s. 10 grounds.  Again for convenience, I repeat it here:

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.

As the language makes plain, s. 20 is a general clause that deems certain distinctions, exclusions or preferences non‑discriminatory.  Given the general nature of this section, and the fact that, like s. 18.2, it also deals with the employment context, it seems to me that s. 20 should be read in harmony with s. 18.2. 

[62] Thus, 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.  In my view, this interpretation is consistent with the language and structure of the Charter.  Put against this interpretation are obiter statements in two decisions of this Court that s. 20 has no application to s. 18.2:  see  Therrien, at para. 145, and Maksteel, at para. 21.  It is my view that the reasoning in each of those cases does not support this conclusion and that it should be departed from.  I will explain.

[63] The Court in Therrien described s. 18.2 as a self-contained provision.  Gonthier J. explained that, because aptitudes or qualifications required for an employment are subsumed within the notion of connection with the employment, there is no need to turn to s. 20 of the Charter.  He therefore concluded that s. 20 did not apply to s. 18.2, stating as follows:

The second situation is one in which no exception to the application of that provision is possible.  If a pardon has been granted and the other three conditions are also met, the probable finding will be that there was discrimination against the person who received the pardon.  It should be noted that s. 20, which provides that a distinction based on the aptitudes or qualifications required for an employment is deemed non-discriminatory, has no application in respect of s. 18.2.  Section 18.2 is a self-contained provision and has its own rules governing exceptions.  This internal justification mechanism would otherwise duplicate the mechanism in s. 20.  [Emphasis added; para. 145.]

[64] Building on this reasoning, the Court in Maksteel characterized s. 18.2 as an “independent provision” and found that, when the link to the employment is made out, there is no need to resort to the general justification found in s. 20 nor to its inherent duty to accommodate.  While there was no question of pardon in Maksteel, Deschamps J. added the following:

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. [Emphasis added; para. 21.]

[65] The notion that s. 20 is subsumed under s. 18.2 holds in so far as the “connection to the employment” branch of s. 18.2 is concerned.  The expression “in no way connected with the employment” is indeed very wide.  It certainly encompasses the notion of “aptitudes or qualifications required for an employment”.  But it is even broader than that.  For example, employees who steal from their employer, commit crimes during work hours or using the employer’s property, assault clients or co-workers, all commit crimes that are connected to the employment.  These crimes may or may not, however, impact the employee’s ability to do his or her job — the gardener who steals a hoe from his employer may still be an excellent gardener.  The employer may nonetheless be justified in dismissing, penalizing, or refusing to hire these individuals based on ordinary employment law principles.  The internal limitation contained in s. 18.2 protection signals that these rules are not displaced by the protection against unjustified treatment based on criminal record provided by the Charter.  Because of this wide notion of connection to the employment that internally circumscribes the scope of the protection, whenever an employer successfully invokes this branch of s. 18.2 to except his decision or action from its application, there is no need to justify it under s. 20 because there is no prima facie discrimination. The logic is not that demonstrating a “connection to the employment” leaves nothing to be decided under s. 20, but rather the protection simply does not extend to the decision or action in question.

[66] However, the inquiry is very different when the second branch of the s. 18.2 protection is invoked.  If there is a pardon, the s. 18.2 protection is triggered.  Does this mean that the protection is absolute or that it admits of no exception?  Such a conclusion certainly cannot be based on the notion that any inquiry under s. 20 would be redundant.  Nor in my view, as I explained earlier, can it be based on the language or structure of the relevant Charter provisions.  If the protection is indeed absolute, this conclusion would have to flow from the nature and legal effect of the pardon itself.

[67] In Therrien, Gonthier J. reviewed at length the various types of pardons, their meaning and effect (paras. 113-27).  It is not necessary to repeat this analysis.  It suffices here to repeat the conclusion of the Court:

I therefore find that while a pardon does not make the past go away, it expunges consequences for the future.  The integrity of the pardoned person is restored, and he or she need not suffer the effects associated with the conviction in an arbitrary or discriminatory manner, a situation which the Canadian and Quebec charters tend to protect against.  [Emphasis added; para. 127.]

Therefore, it is clear that a pardon does not erase the past.  Would it nonetheless be “arbitrary or discriminatory” to consider the past events in the context of determining whether a candidate meets the aptitudes or requirements of the employment within the meaning of s. 20?  Short of a free pardon under s. 748(2)  and (3)  of the Criminal Code , by virtue of which a “person shall be deemed thereafter never to have committed the offence”, it is my view that it would not.  The pardon prevents unjustified or discriminatory treatment based on criminal record, but it does not create a legal fiction that forces employers to ignore the fact that the person has committed the acts in question.  The application of s. 20 would merely ensure that a dismissal, refusal to hire, or other penalty is justified by the real aptitudes or qualifications of the individual and not based on stereotypes.

[68] Further, if a pardon were to provide an absolute protection as contended, it would result in the following absurdities.  The protection under s. 18.2 of the Charter does not extend to reprehensible conduct that has not been the subject matter of a charge. Nor does it extend to the commission of criminal acts in respect of which a criminal proceeding has not resulted in a finding of guilt.  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.  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.  And this, even if the acts in question had an undeniable relation to the aptitudes or qualifications for the job.  Further, because the standard of proof in a criminal case is higher than in a civil proceeding, an employer could justify the refusal to hire based on proof of reprehensible acts in respect of which the candidate has been charged but acquitted. However, in making its decision, the same employer could not consider criminal acts in respect of which the candidate was found guilty when they are the subject of a subsequent pardon.

[69] My colleague accepts that a pardon does not erase the past and that the underlying facts can be considered by an employer, even within the four corners of s. 18.2. However, she would require that the employer show something more to support the refusal to hire.  Hence, in dismissing as alarmist the SPCUM’s argument that an employer may have to hire a pardoned pedophile in a day care, she states that one would hope that the employer who receives such an application would conduct a more thorough investigation than that conducted by the SPCUM here.

[70] In my respectful view, the facts underlying the pardoned offence cannot be realistically contained and used simply as a building block to support further facts that would justify the employer’s decision as my colleague’s analysis would have it.  For one matter, it will not always be possible to obtain further information from a more thorough investigation.  Also, the criminal acts in question may provide the most cogent information about a person’s inaptitude for the job.  Undoubtedly, the SPCUM’s stark example of a pedophile claiming a right to be hired in a day care facility was intended to capture the Court’s attention.  But it nonetheless underscores the potential absurdities that may result if we were to exclude s. 20’s application to s. 18.2.

[71] As I have stated earlier, I agree with Deschamps J. that the sealing of S.N.’s record should be regarded as the functional equivalent of a pardon within the meaning of s. 18.2 of the Charter.  However, we cannot ignore the reality that, unlike the free pardon or other forms of pardon, an administrative pardon that is issued for an absolute or conditional discharge is granted automatically based on the simple passage of time, one year in the case of an absolute discharge and three years for a conditional discharge. Hence, it does not offer the same safeguards about the person’s actual rehabilitation as other forms of pardon may offer.  Further, as the evidence demonstrates, pardons are far from uncommon (Tribunal’s decision, at para. 63).  All this to say, it cannot have been the legislature’s intention that the protection granted under the second branch of  s. 18.2 be absolute as contended.  The purpose of the Charter is to protect against stereotypes and unjustified exclusions based on criminal records.  It is not intended to erase the past and shield an individual from all civil consequences of their own behaviour.

[72] It is important to note that this interpretation does not  negate the protection afforded by the second branch of s. 18.2.  Section 20 requires that an employer rebut a prima facie claim of discrimination by demonstrating that the distinction relates to an aptitude or qualification required for the employment, also referred to as a bona fide occupational requirement, governed by the three-part test set out in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (the “Meiorin” test).

[73] Hence, in order to prove that a standard is a bona fide occupational requirement, the employer must demonstrate:

(1)               that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2)               that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work‑related purpose; and

(3)               that the standard is reasonably necessary to the accomplishment of that legitimate work‑related purpose.  To show that the standard is  reasonably necessary, it must be demonstrated that the employer could not accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer  (Meiorin, at para. 54; 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, at paras. 11-12).

[74] 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.

[75] The bona fide occupational requirement exception set out by the legislature in s. 20 applies to all other grounds of discrimination under the Charter.  There is no reason why it should not apply to the protection afforded under s. 18.2.  It ensures that the Charter serves its purpose of preventing a criminal record from being an unnecessary and unjust barrier to employment while, at the same time, not overshooting the scope of the protection.

[76] Finally, this approach is consistent with the legislation in other Canadian jurisdictions.  Every Canadian jurisdiction that provides protection from discrimination based on criminal record allows the employer to consider the criminal conviction if it is a bona fide occupational requirement.  See, e.g., Canadian Human Rights Act , R.S.C. 1985, c. H‑6 ; Human Rights Code, R.S.B.C. 1996, c. 210; Human Rights Code, R.S.O. 1990, c. H.19; 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.N.W.T. 2002, c. 18; Human Rights Act, S. Nu. 2003, c. 12.  This is true even where the legislation contains an “internal limitation” similar to the “connection to the employment” language of s. 18.2 of the Charter:  see, e.g., British Columbia, Prince Edward Island, and the Yukon.  It is also true of jurisdictions that provide protection from discrimination where a pardon has been obtained:  Federal, Ontario, Northwest Territories, and Nunavut.  I see no reason why the language or the logic of the Quebec Charter would lead to a different result.

4.  Application of the Charter to S.N.’s Candidacy

[77] The issue in this case is whether the SPCUM violated s. 18.2 of the Charter when it refused to hire S.N.  As stated in Therrien, “[w]hether this section applies will depend on whether four essential conditions are met:  (1) a dismissal, a refusal to hire or any kind of penalty; (2) in the person’s employment; (3) owing to the mere fact that the person was convicted of a penal or criminal offence; (4) if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence” (para. 140).

[78] Conditions (1), (2) and (4) are clearly met.  The only question is whether the SPCUM refused to hire S.N. based on the “mere fact” that she was found guilty of a criminal offence.

[79] The SPCUM argues firstly that it did not refuse to hire S.N. based on the “mere fact” that she had a criminal record but, rather, based on its review of the circumstances of the offence.  I would not accede to this argument.  If that position were accepted, an employer could always circumvent the application of s. 18.2 by simply stating that reliance was placed on the facts of the offence as opposed to the mere fact that the person was found guilty. In my view, the two are inseparable. 

[80] The fact that the SPCUM did consider the circumstances of the offence, however, has a bearing on the more germane question whether the refusal to hire was based on an aptitude or qualification required for an employment within the meaning of s. 20.  In order to answer this question, it may be useful to briefly recall the facts related to the investigation.

[81] The SPCUM discovered that S.N. had a criminal record by conducting a verification through the computerized police information system.  Because S.N. had been pardoned, the system did not contain the details of the offence.  The SPCUM continued its investigation.  It obtained the police reports and statements made at the time of the infraction, as well as the court record for S.N.  The SPCUM conducted an analysis of the modus operandi of the crime and considered her age at the time of the infraction.  Because the crime was deliberate and S.N. was an adult at the time (A.R., at p. 1345), the SPCUM determined that this incident demonstrated that S.N. was not, as required by the Police Act and the By‑law respecting standards of the Sûreté du Québec and municipal police forces for the hiring of constables and cadets, a person of “good moral character”.

[82] The SPCUM takes the position that the requirement for good moral character for a police officer is an aptitude or qualification for employment  within the meaning of s. 20.  I agree.

[83] 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.  In Lévis (City) v. Fraternité des policiers de Lévis Inc., [2007] 1 S.C.R. 591, 2007 SCC 14, Bastarache J. noted that:

A criminal conviction, whether it occurs on‑duty or off‑duty, brings into question the moral authority and integrity required by a police officer to discharge his or her responsibility to uphold the law and to protect the public.  It undermines the confidence and trust of the public in the ability of a police officer to carry out his or her duties faithfully:  Deux‑Montagnes; Ville de Lévis. [para. 70]

[84] 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.

[85] Clearly the standard of “good moral character” set out in s. 3 of the Police Act meets the first two steps of the Meiorin test, as it is rationally connected to the job and is imposed in good faith.  The question is whether the employer can accommodate persons who have a criminal record and have received a pardon for the offence without imposing undue hardship on the employer.

[86] 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.  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 re-offending, 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.

[87] I therefore conclude that the SPCUM was justified in refusing to hire S.N. and thus its actions did not violate the Charter.

[88] For these reasons, I would allow the appeal, set aside the judgment below, and dismiss the action with costs throughout.

Appeal dismissed with costs, Binnie and Charron JJ. dissenting.

Solicitors for the appellant:  Charest, Séguin, Caron, Montréal.

Solicitor for the respondents:  Commission des droits de la personne et des droits de la jeunesse, Montréal.

Solicitor for the intervener the Attorney General of Quebec:  Attorney General of Quebec, Sainte‑Foy.

Solicitors for the intervener École nationale de police du Québec:  Joli‑Cœur, Lacasse, Geoffrion, Jetté, Saint‑Pierre, Sillery.

Solicitor for the intervener the Prisoners’ Rights Committee:  Prisoners’ Rights Committee, Laval.