Canada: Can Manitoba Employers Legally Discriminate Against Employees Charged With A Criminal Offence?

As reported recently in the news, CUPE Manitoba's President was removed from his position after he was arrested for an alleged sexual assault.  This situation provides an opportunity to consider potential human rights implications when a person faces consequences in their employment due to alleged criminal conduct.

The following are general comments about this particular area of the law and are not concerned with the specific case involving CUPE Manitoba's President.

In Manitoba, The Human Rights Code (the "Code") sets out specific characteristics that are protected against differential treatment, such as sex, gender identity, physical or mental disability or political belief, among others.  While the Code does not explicitly protect employees against being discriminated on the basis of criminal charge, criminal conviction, or criminal record, for example, the Code does provide a general protection against discrimination on the basis of a person's "actual or presumed membership in or association with some class or group of persons, rather than on the basis of personal merit." (section 9(1)(a)).  Any protection under this part of the Code is generally referred to as an "analogous ground".

In A.B. v. University of Manitoba, 2020 MBHR 1 (February 10, 2020), Adjudicator Werier issued a decision about an employer's preliminary objection to a complainant's human rights complaint which alleged the employer had discriminated against the complainant based on his criminal record.  The employer asserted that the complainant's specific "criminal record" was not an analogous ground.  The Manitoba Human Rights Commission, on the other hand, asserted that the mere fact that a person has a criminal record at all, regardless of the specific details of their record, is an analogous ground entitled to protection against discrimination under the Code.

The Adjudicator decided that a criminal record, in itself, is an analogous ground receiving protection against discrimination under the Code (paragraph 84).  As a result, the employer's preliminary objection was dismissed and the complaint was allowed to proceed to the next stage to be heard on its merits (i.e. whether there was, in fact, discrimination on the basis of the Complainant's criminal record).

This is a significant decision confirming a new scope of protection against discrimination in Manitoba.  While an adjudicator under the Code in 2009 had previously decided a case based on a criminal record being a protected characteristic, that issue was agreed to by the parties and so no argument was heard on that point.

However, it is not immediately clear whether the scope of protection afforded by this new "analogous ground" as described in A.B. also applies to a person who has been charged with a criminal offence, but not necessarily convicted.

In the A.B. decision, there is no definition of what a "criminal record" is exactly.

The decision describes the complainant's specific circumstances, which included that he had been convicted of touching two children for a sexual purpose and making child pornography under the Criminal Code, for which he received a period of incarceration.  The specific question of whether being charged only is an analogous ground does not seem to have been put squarely before the Adjudicator to decide in that case.

Assuming then that the reference "criminal record" in A.B. was only to criminal conviction, is a criminal charge likely to get protection against discrimination under the Code as an analogous ground?  It's impossible to say with certainty until a case on that specific point is decided, but there is case law from outside Manitoba that suggests it might be.

British Columbia's Human Rights Code (the "BC Code") protects against discrimination because "that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or the intended employment of that person" (section 13(1)).  In Clement v. Jackson and Abdulla, 2006 BCHRT 411, the British Columbia Human Rights Tribunal interpreted the BC Code to extend the protection of the ground of criminal conviction to a person charged with a criminal offence because it would run counter to a large and liberal interpretation of human rights legislation "if an employer could dismiss or otherwise discriminate against a person merely charged with an offence (who might subsequently be proven innocent), or who was perceived to have a conviction, but could not do so if that person was convicted" (paragraph 14).

However, this approach in British Columbia has been rejected in Ontario.  Ontario's Human Rights Code prohibits discrimination in employment on the basis of "record of offences" (section 5(1)), defined as:

(a)       an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b)       an offence in respect of any provincial enactment (section 10(1)).

The Ontario Human Rights Tribunal rejected the BC-approach in de Pelham v. Mytrak Health Systems, 2009 HRTO 172, finding that "the language of the [Ontario] statute is clear and unambiguous and provides that "record of offences" covers only persons convicted of an offence" (paragraph 9).

Of course, the competing cases out of those two other jurisdictions are based on the language used in their particular human rights legislation.  Those cases involved interpreting the scope of the specific characteristics explicitly protected under statute and whether the language could be interpreted to apply to a person charged criminally, but not necessarily convicted of an offence.  Neither of those cases involved a determination of whether being charged with a criminal offence was an "analogous ground".

Any human rights protection against discrimination based on a criminal charge in Manitoba would only exist based on an "analogous ground" analysis.  As such, it seems likely that criminal charge would be considered an "analogous ground" here, particularly given the logic underlying the BC-approach –that it would be unfair and inconsistent with the public policy nature of human rights legislation to protect those convicted of criminal charges, but not protect those who are merely charged.

We also note that the Manitoba Human Rights Commission itself revised its Policy on September 30, 2020 which states that "alleged discrimination on the basis of criminal charge or conviction may constitute the basis of a complaint under section 9(1)(a) of the Code", citing A.B.  While the Commission's policies cannot override statutory provisions, their content may inform an adjudicator's analysis of the existence of an analogous ground (see paragraph 105 of the A.B. decision).

Of course, any employer found to have discriminated against an employee on the basis of any characteristic protected by the Code can fully defend itself if it can successfully establish that the discrimination is based on bona fide and reasonable requirements or qualifications for the employment or occupation (see section 14(1) of the Code).  In the case of criminal charge, for example, an employer could establish that, given the nature of the charge and the nature of the employee's position or the employer's operation, the mere existence of the charge is a justifiable basis on which to end the employment relationship.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.