Brandon Gailbraith has been in and out of jail since he was a teenager and has a criminal record ranging from assault to break and enter to possession of a weapon.
So when it came time to turn his life around and find a job, the 32-year-old wasn’t very optimistic about his prospects.
“Having a criminal record, it just kind of takes a lot of options off [the table],” Gailbraith told CBC Toronto.
His options were limited but eventually he was able to find work in construction in the Ottawa area, specifically in roofing.
Gailbraith isn’t alone. More than one million people in Ontario have a criminal record, according to the province. The unemployment rate among them is around 50 per cent, according to Safiyah Husein, the John Howard Society of Ontario’s (JHSO) director of policy. Finding a job can be even harder for those who are Black or Indigenous and have a criminal record, says Husein, who points to compounding issues such as racism and systemic discrimination.
But a new report by the JHSO says Ontario’s legal system continues to punish people long after they have been released from jail, with laws that make it legal to discriminate against people with criminal records and hiring practices that leave qualified job seekers locked out of the workplace.
“It’s acting as a permanent barrier to employment, even decades after serving their sentence,” said Husein.
Ontario’s Human Rights Code prevents employers from discriminating against people applying for a job on certain grounds, including age, race, disability. One of the grounds is a “record of offences,” which refers to convictions that have received a pardon and provincial offences, like traffic tickets, according to the report.
But Husein says if someone doesn’t have a pardon, which can be expensive and complicated to get, there is nothing in the Code to prevent an employer from discriminating against that person based on their criminal record.
“This leaves it open for employers to eliminate a candidate based solely on the fact that they have a criminal record even if it’s old and has nothing to do with the job they are recruiting for,” Husein said.
The report, entitled Rethinking Justice – Sentenced to Unemployment, recommends legislative changes to address that problem, including:
Amending the Employment Standards Act (ESA) to require employers to indicate in a job posting if a check is required. The posting should also specify what types of convictions would be considered relevant, and criminal record checks should only be conducted after a conditional offer of employment is made.
Amending the Ontario Human Rights Code to replace “record of offences” with “police record.” The change widens the protected ground so that applicants can’t be disqualified not only for pardoned convictions and traffic tickets, but also for charges still before the courts, unpardoned convictions as well as non-criminal contact with police, as long as they aren’t relevant to the job being applied for.
Explore the right to be forgotten for those with criminal records, allowing people to request that organizations, like news agencies, remove their personal information.
Investing in employment programming, specifically for those with criminal records who are looking for work.
The Ontario government would not say if it will consider the recommendations.
In a statement to CBC Toronto, it said it is breaking down barriers to employment and tackling the stigma that keeps people out of the skilled trades. It says since 2021, it’s invested $1.5 billion through the province’s Skills Development Fund (SDF).
The government says through SDF-supported programs, it’s funding more training for those on social assistance and with criminal records to help them gain more skills for their eventual return to the workforce. It is also investing an additional $1 billion over the next three years into the program.
But Husein also says Ontario falls behind other provinces, such as P.E.I., Quebec, Newfoundland and Labrador and the Yukon Territories, when it comes to providing protection against criminal records that don’t have a connection or relevance to a particular job that a person is applying for.
The Ministry of the Solicitor General referred CBC Toronto to the Ministry of Labour for questions.
The Ministry of Labour did not respond to the claim that Ontario’s legal system punishes people with criminal records applying for jobs. It also didn’t respond when asked why it differs from other provinces on protections for those with records.
A report by JHSO last year found around 60 per cent of employer respondents believed that a criminal record check should be used for all new employees. Many believed any positive check on a criminal record should result in rejection of that candidate, according to Husein.
“There is this sort of practice around blanket record check policies and exclusion of candidates,” she said.
The practice therefore hurts employers too by keeping them from an “untapped pool of qualified candidates.”
Andrew Monkhouse, managing partner at Monkhouse Law Employment Lawyers, says more clarity would benefit not just applicants, but also employers.
“Employers don’t want to often intentionally discriminate against people or break the law, but if they don’t have the information … it’s confusing. They want to be more clear.”
There’s a societal benefit to reducing barriers for people with records to enter the job market too, says Monkhouse.
“If you don’t give people who have been convicted an opportunity to get back into the regular workforce, there might be additional recidivism,” Monkhouse says. “Because then their only option is to go back into the…black market, where they’re not going to be asked for background checks.”
For Gailbraith, a steady job has meant more discipline for him to stay on the right track.
“People who have come through that hard stuff and [are] given a chance … they’re going put as much effort, like double the effort, because these chances don’t come that often.”
