Me Marie-Michelle Savard
A partner at Verreau Dufresne Avocats, Marie-Michelle Savard focuses her practice on labour law, representing businesses and individuals with rigour and a personalized approach. With litigation experience before several provincial and federal tribunals and courts, she stands out for her analytical mind, rooted in her scientific training, and her ability to find practical solutions to complex issues.
View profileBook an appointmentCan an employer check a candidate’s criminal record? Is a consent form required? When can a criminal record justify a refusal to hire? Our labour law lawyers in Québec City and Lévis explain an employer’s rights and obligations.
Can the employer turn down a candidate?
In Quebec, an employer cannot refuse to hire a candidate merely because they were convicted of a penal or criminal offence, if the offence is not connected with the employment or if a pardon was obtained. Otherwise, the candidate is protected by section 18.2 of the Charter of human rights and freedoms and could take legal action against the employer.
Section 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.”
Looking for the real cause
In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., the Supreme Court of Canada emphasized the concept of the “real reason” or “real cause” for a refusal to hire.
The question is therefore whether the only reason the employer refused to hire a candidate was the existence of a criminal record. When an employer refuses to hire someone for other, legitimate reasons, the candidate will not succeed in a claim under section 18.2 of the Charter.
Example: Marc, a historian, had an excellent interview for a position at a museum. He has all the required qualifications, but he was convicted of assault a few months ago. Naturally, the employer is very concerned about this. Turning Marc down for this reason alone could violate the rights guaranteed by section 18.2 of the Charter of human rights and freedoms.
In fact, however, the employer is justified in not hiring Marc, because he must serve jail time every weekend for 6 months, while most of the work at the museum takes place on weekends. Since the real cause of the refusal to hire is Marc’s unavailability, and not only his criminal record, Marc has no recourse.
The connection with the employment
An employer may turn down an application because of a criminal record if no pardon has been obtained for it and it has a connection with the position to be filled. The Supreme Court of Canada tells us that this connection must be objective, not subjective.
The employer therefore has the burden of showing that the offence committed by the candidate objectively has a concrete and tangible connection with the position sought in order to justify the refusal to hire.
To establish this connection, a contextual analysis is needed, looking in particular at the circumstances of the offence, the employer’s mission, the nature of its activities, the nature of the position and the tasks the candidate would perform.
For example, if the context justifies it, an employer could refuse to hire in the following cases:
- A police officer with a record for corruption
- A security guard with a record for theft
- A casino employee convicted of shoplifting in a store
If there is no connection between the criminal record and the employment, section 18.2 of the Charter gives a remedy to the candidate who was excluded from the hiring process.
Analyzing the “connection with the employment” is a complex, contextual exercise that requires an excellent knowledge of the case law. Contact one of our labour law lawyers in Québec City and Lévis for more information.
Pardon obtained for the offence
An employer that refuses to hire a candidate because of a criminal record for which the candidate has obtained a pardon is acting in a discriminatory manner. However, it is up to the candidate to establish that they did in fact obtain a pardon for the offence.
The courts have held that the protection is absolute if the candidate has obtained a pardon for the offence, even if the offence is connected with the employment.
Before hiring: the employer’s options
During the hiring process, an employer is entitled to take steps to learn about candidates’ criminal records.
The employer may ask about criminal records
An employer is entitled to ask a candidate whether they have been convicted of offences for which they have not obtained a pardon. According to the courts, the Charter does not protect candidates at the stage when the employer is gathering information. Rather, the protection targets the wrongful use of the information gathered.
However, the question must be put to the candidate in precise terms, not in broad wording, so that the employer’s right to be properly informed does not clash with the candidate’s right to privacy.
The employer may check the candidate’s record
Since section 18.2 of the Charter does not prohibit asking a candidate about their record, the employer is entitled to contact the police or various private firms to carry out a criminal record check.
An employer must obtain the candidate’s written consent before doing so. It is therefore recommended that the candidate be given a consent form to sign before the record check is carried out. Among other things, this form should state the scope of the check to be performed and should be tailored to the position sought.
Criminal records and false statements when hiring
During the interview or on a pre-employment form, the candidate must answer questions about their criminal record honestly. For example, having obtained a pardon does not allow a candidate to deny the existence of their record or to answer “no” to questions about their criminal record. The candidate must answer “yes” and specify that they have obtained a pardon.
The courts have held that a false statement at the time of hiring can undermine the employer’s trust and ultimately lead to termination of employment. It is then important to determine whether the dismissal results from the existence of the criminal record or from the false statement. This is a contextual analysis.
Contact us
Checking criminal records and refusing to hire a candidate because they were convicted of a criminal offence is a rigorous process that must be carried out in full compliance with the law. For help with your analysis, contact the labour law lawyers at Verreau Dufresne Avocats.
Note: The information above is general in nature and does not constitute legal advice. For advice on your particular legal situation, feel free to contact one of our lawyers in Québec City or Lévis.
