LA DISCRIMINATION FONDEE SUR LE MOTIF DES ANTECEDENTS JUDICIAIRES ET LES INSTRUMENTS ANTI-DISCRIMINATOIRES CANADIENS
AbstractIn this article, the author discusses the problem of discrimination based on criminal antecedents in Canada and examines the degree to which this form of discrimination is addressed by the Criminal Records Act and human rights codes at both the federal and provincial levels. The Criminal Records Act, as amended in 1992, is the subject of a critical analysis emphasizing the practical problems which this legislation leaves unaddressed. The federal human rights code as well as similar legislation in British Columbia, Quebec, Ontario and the territories which contain provisions purporting to protect against this form of discrimination are considered as offering but a deficient protection. The author argues that these codes and those of the provinces having no provision whatsoever dealing with this form of discrimination, may infringe section 15(1) of the Charter of Rights and Freedoms because discrimination on the ground of criminal antecedents meets the criteria for "analogous grounds" as outlined by the Supreme Court of Canada in Andrews. Finally, the author suggests that a court could "read in" criminal antecedents as a prohibited ground of discrimination following the approach of the Supreme Court in Schatcher as applied recently in the context of human rights legislation by the Ontario Court of Appeal in Haig.
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