First published at Global News on November 3, 2017.
Despite Ontario’s human rights laws being among the broadest in the country, they don’t go far enough, a provincial politician says.
Liberal MPP Nathalie Des Rosiers, formerly a human rights lawyer, has introduced a private member’s bill, Bill 164, which, if passed, would amend Ontario’s human rights code to tackle discrimination based on a number of factors, including genetic information, “social condition,” and immigration status.
The bill, which passed second reading last week, would also bar discrimination based on police records, defined in the bill as including “charges and convictions.”
The human rights code sets out what practices are unacceptable for private businesses and public agencies — including human resources decisions.
It’s not uncommon for prospective employers to request a police check from applicants or new hires, which could reveal anything from interactions with law enforcement to criminal charges.
But the bill isn’t just about ensuring a traffic stop from 30 years ago doesn’t disqualify you from a job; Des Rosiers confirmed it’s also about guaranteeing those charged, but not convicted, of criminal offences, are not left unemployable.
The logic goes that once the Crown fails to justify a conviction, a person is, in the eyes of the law, innocent, and should be treated as such everywhere. Even if one is convicted, Des Rosiers says, it’s important he or she isn’t subjected to discrimination based on a criminal record, after completing a sentence.
This is dangerous thinking.
The law does allow for people to be kept out of certain fields connected to their crimes — such as a drunk driver applying to be a pizza delivery man or a jewelry thief working at Peoples Jewellers.
But what about someone found not guilty of actions serious enough to cause concern for employers?
One needn’t have a law degree to understand that a conviction must be based on guilt beyond a reasonable doubt. As a result, guilty people will sometimes walk free.
I asked Des Rosiers what she’d think of someone found not guilty, based on a technicality, of offences against children being denied employment at a daycare centre.
Her answer implied this would be unlawful discrimination.
“If you have a presumption of innocence, that’s what you believe,” she said. “You believe that— You say a technicality; you don’t know what technicality was. So, I think this is a pretty extreme example. Presumably, if that’s the case, the police usually— If there’s someone that has had other charges and so on— But I think it’s important to continue to protect the presumption of innocence. If we don’t, we could all be presumed guilty without having proper recourse.”
What of the Jian Ghomeshi case? There was very little doubt that he pushed the boundaries of consent. He was found not guilty after a very weak prosecution, but whether he is truly innocent wasn’t tested.
Under Des Rosiers’ proposed law, an employer would be discriminating against Ghomeshi by denying him a job based on information that is completely factual.
The burden of proof beyond a reasonable doubt in prosecutions is an important hallmark of Canadian justice. While I respect Des Rosiers’ commitment to it, we can’t forget the similarly important right of freedom of association, which surely should allow business owners to make hiring decisions on their own terms.
I support the state maintaining a high bar for assessing guilt, but Canadians don’t need to hold that same threshold for their own determinations.
My examples may be “extreme,” to quote Des Rosiers, but broad laws need to be measured against extreme situations to test whether they hold up.
These reforms don’t.
This isn’t to say the entire bill is without merit. When police lay charges, they’re able to, in most cases, release suspects’ names and ages, which are often reported in the media.
Oftentimes, the media will not follow every case through the courts so there might not be a subsequent story noting the withdrawal of charges. Similarly, many police records do not include details about what happened with a case after charges were laid — even when charges were found to be based on police error.
These issues need to be addressed through the rules governing police — not human rights laws.
To require a business owner to hire a particular person, which is what anti-discrimination provisions do, in effect, is egregious. Especially in an era where companies are regularly forced to either defend or denounce what employees say and do on their own time.
Human rights laws that cover employment may be well-intentioned, but they have a handicapping effect on businesses. To say that brushes with the law must be irrelevant in the hiring process opens a door that needs to remain closed.