Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2008 SCC 48 deals with pardons and their effect. As clients often ask what a pardon does the decision, though arising under Quebec human rights legislation is important.
The case summary follows;
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, 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 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, 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.
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 Criminal Records Act 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. 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.
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.
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.
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