Trying to get rid of a criminal record is further punishment: why the records suspension regime needs to be entirely overhauled

Overview

In this post, I will argue that the process of trying to have a criminal record removed is fundamentally flawed and should be considered unlawful. I am not going to put any time into the subject of cannabis possession records possibly being suspended or pardoned without a fee. There has already been substantial attention on this issue, but it is a drop in an otherwise empty bucket. I will will draw attention to the rest of the bucket.

I say the entire regime of trying to get rid of a criminal record is flawed because the process punishes those with criminal records through fees – that are better described as fines – and scrutinizes those with criminal records for new charges even when they did not result in a conviction.

Removal of a criminal record used to be called a “pardon”, but since the former Harper Government’s Safe Streets and Communities Act of 2012, it is now called a “record suspension”. The distinction is significant. A pardon is supposed to mean that the ordeal is over. A suspension means that it continues to hang over a person’s head and can be brought back, which is made clear in section 7 of the Criminal Records Act. This change points out more clearly that one is not supposed to be able to just get rid of a criminal record in the present order.

 

Why is a criminal record part of the sentence?

When does a person’s sentence for a conviction end? You would think that it is at the time that the person completed their actual sentence, which may include jail and a period of probation. In actuality, a criminal record itself acts as an extension of a sentence. As stated by Canadian lawyers Robert Israel and Christine Mainville in a January 2018 contribution to the Globe and Mail:

In our Orwellian world, with damaging personal information merely a click away, a criminal conviction alone can easily become the most debilitating part of a person’s sentence. And so, for many offenders, the ability to eventually obtain a pardon is critical.

Theoretically, once there has been accountability for the crime through a sentence, the punishment is supposed to end. It does not. Criminal records often prevent convicted people from obtaining gainful employment and obtaining housing. It also results in the inability to travel to the United States and other countries. People with criminal records are also often prevented from volunteering in the community, as coaches or in other situations where a criminal record check is done. A criminal record is supposed to be a burden that hangs over a person’s head after a criminal sentence is complete.

 

The process of removing a criminal record

Criminal Records are legislated under the Criminal Records Act. Under this Act, a person with a criminal record needs to meet the following eligibility criteria to remove the record (I’m leaving out the part on “service offences” while in Service of Her Majesty the Queen):

4 (1) A person is ineligible to apply for a record suspension until the following period has elapsed after the expiration according to law of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine, imposed for an offence:

(a) 10 years, in the case of an offence that is prosecuted by indictment … or

(b) five years, in the case of an offence that is punishable on summary conviction …

(…)

4.1 (1) The Board may order that an applicant’s record in respect of an offence be suspended if the Board is satisfied that

(a) the applicant, during the applicable period referred to in subsection 4(1), has been of good conduct and has not been convicted of an offence under an Act of Parliament; and

(b) in the case of an offence referred to in paragraph 4(1)(a), ordering the record suspension at that time would provide a measurable benefit to the applicant, would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.

For those who may not be familiar with the criminal law terminology in this section, a “summary” offence is considered less serious and there is generally little to no risk of jail time, especially for a first-time offender. An indictable offence is considered much more serious and often carries a risk of many months or years in jail (such as robbery, murder, aggravated sexual assault and various firearms offences).

Five years and ten years are already long periods to wait. But the waiting time is actually significantly longer than that. The period does not begin until after the sentence was completed. This means that the clock only starts running after any jail, probation or fine has been completed.

Take an example. Let’s say a person was convicted today of an indictable theft offence, where property worth $10,000 was stolen as part of a break, enter and theft. In this example, the person was convicted and sentenced to a one-year jail term followed by another year of probation. This person ends up waiting 12 years after the conviction before a record suspension is even possible. But the story does not end there. Record suspensions are not automatically awarded. They require a paid application and meeting some very discretionary – and improper in my opinion – standards.

There is no real explanation of “good conduct” under the Act, but I will get into what this means in the next section. As for the “measurable benefit”, those with criminal records of indictable offences also must show how removal of the record would be a of benefit to them and good for society as well. What this translates into is people having to explain opportunities that have been denied due to the record – such as better jobs or any job at all – and how such opportunities would be pursued if the record was removed. There also must be an explanation about how a record suspension is justifiable in their case because they are good examples for society, of the redeemed ones among an otherwise bad lot. The onus is on the applicants to show that they are deserving.

 

Pay the fees and “be good” and a record suspension may be in your future

In order to obtain a record suspension, a person has to pay an application “fee” and convince members of the Parole Board of Canada that they are worthy. See the many steps here.

The application fee is $631. This amount will not be affordable and often impossible for those with criminal records. Those with criminal records will not likely be able to obtain employment which offers enough disposable income for such a huge fee. In my opinion, this is not a fee, but a fine. The distinction is important. A fee is a cost for a service. A fine is punitive. In 2012, the Harper Conservatives increased the amount required for a “pardon” (as it then was) from $150 to the new amount of $631.

There were not suddenly 4-times as many people applying for record suspensions, thus requiring 4-times as many resources. The number of people convicted did not grow four-fold, nor at all for that matter. The enormous increase was part of the former federal government’s “tough on crime” agenda. The amount was designed to make life tougher for those with convictions. In other words, it was a punishment. Because the fines have been re-punishing people for offences for which they were already convicted, these fines ought to be seen a contrary to the Canadian Charter of Rights and Freedoms, section 11(h) (emphasis added):

11. Any person charged with an offence has the right

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.

Another enormous hurdle is the requirement for “good conduct”. The Parole Board of Canada makes decisions on applications for record suspensions. They are guided by the Decision Making Policy Manual for Board Members . I find there to be a problematic and unconstitutional set of directions in the manual, including the following (Part 13.1 of the Manual)(emphasis added):

Decision-Making Criteria and Process

10. When making a decision on a pardon or a record suspension application, Board members will assess whether the applicant has been of good conduct. For applications that involve offences that fall under paragraph 4(a) of the CRA as it read on or after June 29, 2010 and before March 13, 2012, or under paragraph 4(1)(a) of the current CRA, Board members will also assess whether the pardon or record suspension would provide a measurable benefit to the applicant, would sustain the applicant’s rehabilitation into society, and would not bring the administration of justice into disrepute.

Conduct

11. For the purpose of the CRA as it read on or after June 29, 2010 and before March 13, 2012, as well as the current CRA, good conduct is considered behaviour that is consistent with and demonstrates a law-abiding lifestyle.

12. In assessing conduct, the Board is not subject to the same standards as a criminal court. The presumption of innocence and the relating rights are not applicable in the context of a pardon or a record suspension application.

13. The type of information and documentation that may be considered includes:

(a) information from the police about a non law-abiding behaviour that did not result in a charge;

(b)information about an incident that resulted in a charge that was subsequently withdrawn, stayed, or dismissed, or that resulted in a peace bond or acquittal, especially where the charge or charges are of a serious nature, and/or are related to convictions on the record for which the pardon or the record suspension is requested;

(…)

When I first saw these decision-making directions, I had to double check that I was not reading something before the Canadian Charter of Rights and Freedoms. I was not. The decision-maker’s manual is current and is still applicable. The edition of the manual I cited is from April 4, 2018.

There are a number of directions in the manual that disregard rights in the Charter in my opinion. Section 12 in the record suspensions part of the manual states: “The presumption of innocence and the relating rights are not applicable in the context of a pardon or a record suspension application.”

The Charter says the following about the presumption of innocence:

11. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

Section 13 of the manual’s section on record suspensions states that “non-law-abiding behaviour” that did “not result in a charge” or charges that were later “withdrawn, stayed or dismissed, or that resulted in a peace bond or acquittal” could still be used to counter a person’s good character. This is incredibly problematic because the effect of this is that unproven allegations are used to extend a sentence. The presumption of innocence is replaced by a presumption of guilt for those once convicted, and the presumption is not even defeated by an acquittal or withdrawal of the charge(s)

People are regularly denied record suspensions based on new charges that were never proven (no conviction). The result is that the unforgiven person remains tied down by the criminal record and is stuck in a life of poverty and negative stigma.

A government decision which results in an unjustified infringement of a person’s security of the person should be contrary to section 7 of the Charter:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Security of the person was defined in New Brunswick (Minister of Health & Community Services) v. G. (J.), [1999] 3 S.C.R. 46 (S.C.C.), at para. 60:

The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety.

A criminal record or any criminal history that can impact on a person’s ability to fully participate in society has a serious psychological impact, which is by design.

This record suspension regime particularly affects those communities who are regularly targeted by police: people with any criminal history in Black, Indigenous and poor communities in general are often charged or at least investigated by police when there is a crime reported in the neighbourhood. Even when someone is investigated as a suspect, the fact that the police spoke to a person as a suspect, without a charge being laid, is likely “non-law-abiding” behaviour.

The stigmatizing, intentionally negative psychological impact, and life impacting effects of a criminal record have been well recognized in Canadian law. In the Ontario case of J.N. v. Durham Regional Police Service, (2011 ONSC 2892), the court stated (emphasis added):

[127] … to many people, our work and our chosen career is a primary source of our own self-worth and, in fact, is considered a major component of one’s own value as an individual. Many people choose as a goal a certain career; as in the present case, they train for it and can find it devastating when, despite their best efforts, they cannot obtain employment in that field. … in the present case, the inability to obtain work is not connected with the job market or inability to perform, but rather with a withdrawn criminal charge and blemished CIR …

[128] Accordingly, if J.N. is unable to ever be able to obtain employment in her chosen field and is forced to work in unrelated fields of work or rely on public assistance, it can be easily understood to cause serious psychological impact on the applicant. When this results from something arising from your reputation or the stigma attached to criminal charges, this impact would only become more severe. On an objective basis, then, I am able to find that the applicant’s inability to obtain employment resulting from her inability to clear the CIR is, objectively, something which would cause serious psychological impact. This accordingly is something that can affect the security of the person within the meaning of s. 7 of the Charter.

In the Supreme Court of Canada case of R. v. Malmo-Levine (2003 SCC 7), the intentionally stigmatizing and punitive effects of criminal records was noted:

[172] … There is no doubt that having a criminal record has serious consequences. The legislative policy embodied in the [Narcotics Control Act] is that a conviction for the possession of marihuana should have serious consequences. Therein lies the deterrent effect of the prohibition. The wisdom of this policy is, as mentioned, under review by Parliament. It appears that this review has been prompted, in part, by a recognition of the significant effects of being involved in the criminal justice system. For instance, background information from Health Canada states:

[B]eing prosecuted and convicted in a criminal court bears a stigma that can have far-reaching consequences in an individual’s life in such areas as job choices, travel and education. Participating in the criminal court process can also involve personal upheaval.

(Health Canada, “Information: Cannabis Reform Bill”, May 2003)

While courts have very clearly stated that a criminal record has a negative impact on a person’s psychological integrity, they have (so far) not found breaches of security of the person if a person simply has to apply for a record suspension. The existence of a process has been considered fair (See for example: Chu v. Canada (Attorney General), 2017 BCSC 630)

However, being denied a record suspension based on unproven charges, and having the criminal record hang over a person’s head, is something beyond a simple waiting period and going through a process. Such a denial ought to be considered arbitrary and not in accordance with the principles of fundamental justice.

 

Federal Government has claimed they aim to address the injustice but have not

The injustice of the fee was addressed, along with a number of other problems, in consultations with Public Safety Canada in 2016, and a report released in 2017. Among the findings was a staggering drop in record suspension applications. 2011/12 there were 29,829 pardon applications, but the number dropped massively to 12,743 records suspension applications by 2016. The reasons for the drop are those mentioned above: the fines (or “fees” as is wrongly portrayed) and the increased waiting times were particularly emphasized.

Public Safety Minister Ralph Goodale vowed to to overhaul the record suspension regime, removing the punitive elements. Nothing has happened so far.

Now that some attention has been focused on the issue of wiping records for pot convictions, it is time to focus on the bigger picture of injustice. Enough people have been struggling through poverty needlessly, and unlawfully in my view, due to criminal records for offences that occurred many years ago and due to failure to be deemed good and worthy by the Parole Board.

Unionization for inmate workers

A worker is a worker, whether in a factory, office building, field, mine or behind bars. All workers should have the right to a union. Workers need a union in order to minimize – since present social relations will not allow elimination – the great power imbalance between bosses and workers. Where the power imbalance is the greatest, so is the need for a union. Workers in jail are the most vulnerable workers in our society, facing the enormous power imbalance of having a boss who is also their jailor. Despite the imbalance, inmate workers have so far not succeeded in winning the right to a union. In this post, I will cover the fundamental right of workers to a union, how and why inmate workers have been denied this right and explain why a proper application of current employment and labour law should empower inmate workers to succeed in unionization.

I am going to limit the scope of what I am discussing below to federal inmate workers, who number approximately 9,000 in Canada. There is relatively very little inmate labour at provincial institutions, though it is still significant. Unionization has been successful in one case involving inmate workers at a provincial institution, way back in 1977: Amalgamated Meat Cutters. I will return to this case further below when discussing rehabilitation versus work.

The cases referred to in this post are all referenced at the bottom.

 

The development of collective bargaining rights in SCC jurisprudence

The right of workers to a union is a constitutional right. In the 2007 Supreme Court of Canada (SCC) case of Health Services, the SCC stated that the right to unionize is protected under section 2(d) of the Canadian Charter of Rights and Freedoms, the right to “freedom of association.” Over the years, further content was added to the right to collective bargaining. These pieces have included the right to a grievance procedure while a collective agreement is in place (Fraser), the right of workers to a union of their choice (Mounted Police), and even the right to strike (Saskatchewan Federation of Labour).

It is important to pay attention to why the right to collective bargaining has added content over the years. In Mounted Police, the SCC majority stated (paragraph 51):

As we have seen, s. 2(d) functions to prevent individuals, who alone may be powerless, from being overwhelmed by more powerful entities, while also enhancing their strength through the exercise of collective power. Nowhere are these dual functions of s. 2(d) more pertinent than in labour relations. Individual employees typically lack the power to bargain and pursue workplace goals with their more powerful employers. Only by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can they meaningfully pursue their workplace goals.

In Saskatchewan Federation of Labour (paragraph 51), the majority stated:

Striking – the “powerhouse” of collective bargaining – also promotes equality in the bargaining process …This Court has long recognized the deep inequalities that structure the relationship between employers and employees, and the vulnerability of employees in this context. In the Alberta Reference, Dickson C.J. observed that:

 [t]he role of association has always been vital as a means of protecting the essential needs and interests of working people. Throughout history, workers have associated to overcome their vulnerability as individuals to the strength of their employers.

Other cases at the SCC have said the same, justifying a constitutional right to collectively bargain. The key point is that workers need the right to collectively bargain to have the ability to assert their human dignity in the workplace. “Human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy are among the values that underly the Charter”, as was restated in Health Services (paragraph 81)

 

Inmates collective bargaining rights denied

Federal inmate workers have tried to unionize on at least two occasions over the last decade in cases that went to labour tribunals over unfair labour practices by the employer. The first two attempts were by the same individual, David Jolivet. Mr. Jolivet tried to sign up fellow inmates at the Mountain Institution at Agassiz, British Columbia and was denied access to them. He first went to the Public Service Labour Relations Board (PSLRB: federal public service) to argue that the employer used unfair labour practices by denying him access to potential members, but was shut out by the Board. In the decision, Jolivet v. Treasury Board (Correctional Service of Canada) 2013 PSLRB 1 [Jolivet], the Board decided that the inmate workers were not public service workers because they were not listed by the Public Service Commission (PSC). The Board added that even if the inmate workers were part of the public service, they were not “employees” in any case. Without employee status, there is no right to collective bargaining. The reason for denial of employee status, in the Board’s view, was that the inmate workers were undergoing rehabilitation more so than actual employment.

Mr. Jolivet took a second crack with the Canadian Industrial Relations Board (CIRB: federal private service under the Canada Labour Code), specifically for the CORCAN inmate workers (Canadian Prisoners’ Labour Confederation and Correctional Service Canada, Re 2015 CIRB 779 [Confed]). CORCAN is an agency under the Correctional Service of Canada that employs inmate workers mainly to produces goods and services for federal government departments. Mr. Jolivet and his fellow inmate workers were shut out at the CIRB as well. They argued that the CORCAN workers fell under the Canada Labour Code because CORCAN is a crown corporation. The Board stated that a Crown corporation could only be created by statute or royal charter, which did not exist in the case of CORCAN.

 

Overcoming the barriers

In the Jolivet decision, the Board ruled that the inmate workers were not listed, therefore were not public service employees. However, the Jolivet decision was made before the SCC’s Mounted Police decision. In Mounted Police, the RCMP workers won a right to be included on the list of public service employees despite having been expressly excluded. The RCMP workers wanted a union of their choice rather than the Staff Relations Representative Committee, which was a labour management body under control of management. RCMP workers were excluded from employee status because the employer thought that RCMP employees with a union of their choice would be compromised in their neutrality, stability, reliability, objectivity and independence. The SCC majority did not see any rational basis on how these values would be compromised through unionization. They held that the RCMP workers were unjustifiably excluded from the exercise of their collective bargaining rights, and that it was underinclusive of s. 2(d) rights to leave them out.

Ironically, a decision that strengthened the rights of RCMP workers ends up useful for inmate workers. If expressly excluded workers can win employee status through the application of s.2(d) of the Charter, so can inmate workers. The major difference is the RCMP workers existed under the Public Service Commission. This difference should not be a barrier since the fundamental outcome of Mounted Police was to take non-employees and turn them into their opposite. If the argument was brought up correctly, it can be quite strong.

While this road is not impassable, it may be very difficult to convince an adjudicator or judge to order inclusion of inmate workers in the federal public service.

The other route, through the Canada Labour Code, was unsuccessful when Mr. Jolivet tried to claim that the inmate workers were employees of a Crown corporation. The requirements for a Crown corporation are a royal charter or creation through statute. CORCAN was not either of those. The other route through the Canada Labour Code is that the inmate workers are part of a “federal work, business or undertaking”, which is inherently under the umbrella of the federal government through s. 91(28) of the Canadian Constitution Act, “The Establishment, Maintenance, and Management of Penitentiaries.” CORCAN workers would fit under this umbrella under two counts. For one, CORCAN operates through the Correctional Service of Canada, as a rehabilitative work program. If the workers are not part of the public service, then they are private sector employees whose work is federal in nature. Secondly, the material they produce is used by other federal government departments, implicating inter-provincial trade and a federal character. In the Confed case, the Canadian Industrial Relations Board said that there is no “residual authority” of that Board to include workers who are excluded from the public service, however, I do not think that is entirely correct. The reason is that every worker has to fit somewhere. I will explain this further below. As for the non-CORCAN workers (all the institutional workers doing the cleaning, cafeteria work, laundry room maintenance, etc), they were not dealt with in the Confed decision. As far as employee status for the purpose of unionization goes, they have not been explicitly excluded from the Canada Labour Code through the common law (to my knowledge).

There is also a recent federal court case, Guerin, which also excludes employee status for CORCAN workers under the Canada Labour Code. I will deal with that case further below, which I believe overshoots in its exclusion of inmate workers from employee status.

The Jolivet decision also excluded inmate workers for not being “employees” due to the rehabilitative character of their work. David Jolivet’s case focused on aspects of employment such as control by the employer, competition for jobs, and other basic details that make an employment relationship. The issue was about control by the employer and whether there was a “real economic benefit” (profit) for the employer through the relationship. The real economic benefit test in Fenton is the test to apply in the case of an employment relationship where there a rehabilitative aspect.

In Jolivet, the Board considered it possible for the inmate workers to be employees, but that the case before it did not meet the test. It considered the possibility largely on the basis of the Amalgamated Meat Cutters case. In Amalgamated Meat Cutters, the Ontario Labour Relations Board found that inmate workers of the Guelph Correctional Centre were employees and they were therefore able to join a union with non-inmate workers at the same meat packing plant. In considering this precedent the Board in Jolivet stated:

It is clear from the foregoing that, for some purposes and in some circumstances, offenders in correctional institutions who participate in work programs could be found to be employees. Evidence of the nature and purpose of the work, the working conditions, and the work’s integration into the employer’s operations, among other factors, would be critical to such a determination. In this case, I do not believe that I have sufficient evidence that would allow such a determination to be made. For example, I have no real evidence of the nature of the work performed by offenders in federal institutions or the integration of that work into the respondent’s operations. On the evidence before me, I could not conclude that offenders are employed rather than participating in work as rehabilitation.

 (paragraph 39)

If more evidence had been introduced, the results in Jolivet could have been different. Also, the Board was not provided other examples of employees who were in an employment relationship, but also benefiting in other ways from it. In particular, there is a very close analogy between inmate workers and student workers, who have also been excluded due to being “students rather than employees.” A number of cases have confirmed that it is possible to be both students and employees, in cases involving interns, post doctoral fellows and co-op students (St. Paul’s Hospital (Re) Between: St. Paul’s Hospital (Hospital), and Professional Association of Residents and Interns (Applicant), [1976] B.C.L.R.B.D. No. 43 at 12 [St. Paul’s], University of Toronto (Governing Council), [2012] O.L.R.D. No. 179 at para 107 [U of T Case], Hotwire Electric-All Inc. [2016] O.L.R.D. No. 896).

Another piece that can bolster the case that inmate workers are employees is the fact that they are so vulnerable. In the SCC decision of Re Rizzo and Rizzo Shoes Ltd [Rizzo] (at paragraph 36), the SCC determined that the status of “employee” provided minimum standards, and that the courts should interpret employee status, “in a broad and generous manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant.”

Inmate workers are extremely vulnerable. Disciplinary infractions at their prison workplace can result in offences on their records, which if accumulated can result in delays in release or other deprivations, which are allowed by section 40 of the Corrections and Conditional Release Act. Inmate workers also make far below minimum wage and have no other possible employer to work for. They also do not have the advantage of access to media to publicize workplace issues. The law should therefore reach over to them and afford them protection of employee status, which is a fundamental requirement to have the right to unionization.

 

Every worker is somewhere

This default position is a matter of legal necessity. As soon as the threshold of “employee” has been crossed, inmate workers must fall either under either the federal public service or the federal private sector and if totally excluded from both, should be allowed to certify under the respective provincial labour relations regime. They cannot be rendered legally non-existent simply because the federal government failed to list them under either the federal public service or refuses to allow inclusion under the private service, casting them out from both the Public Service Labour Relations Act and the Canada Labour Code. The federal government cannot make unionization impossible. As stated in the SCC decision of Fraser:

Laws or state actions that substantially interfere with the ability to achieve workplace goals through collective actions have the effect of negating the right of free association and therefore constitute a limit on the s. 2(d) right of free association, which renders the law or action unconstitutional unless it is justified under s. 1 of the Charter.

Total exclusion of the right to unionize, rather than tempering the right, would fail a section 1 Charter analysis, which only allows reasonable limits to Charter rights. Total exclusion is not a reasonable limit, going far beyond the minimal impairment that is allowed.

 

The Guerin case

In Guerin, the Federal Court had before it an application by inmate workers in CORCAN to contest 30% pay cuts from 2013. The case did not deal with other inmate workers. The inmate workers in Guerin submitted (among other things) that a 30% pay cut was not allowed because they were employees and their pay fell below the minimum standards. The Court considered “employee” status as part of the analysis. In its reasoning, the Court decided that the inmates were not employees because they were in a rehabilitation program, which meant that they could not also be in an employment relationship. The court relied upon two cases, Re Kaszuba and Fenton, but wrongly applied them in my opinion.

In Guerin, the Court reasoned:

[120] In Re Kaszuba and Salvation Army Sheltered Workshop et al., (1983) 41 OR (2d) 316, the Divisional Court of Ontario approved the following passage from the referee’s decision:

If the substance of the relationship is one of rehabilitation, then the mischief which the Employment Standards Act has been designed to prevent is not present and a finding that there is no employment relationship within the meaning of the Employment Standards Act must be made.

This passage was also specifically approved in Fenton v Forensic Psychiatric Services Commission, (1991) 82 DLR (4th) 27 [Fenton] by the British Columbia Court of Appeal.

 [121] In Fenton, the British Columbia Court of Appeal concluded that the work at the Forensic Psychiatric Institute did not constitute employment within the meaning of the Employment Standards Act. Ultimately, the Court closely examined the goal of the Act and reached the conclusion that, if the work is for the purposes of rehabilitation and training, the minimum employment standards set out in these acts for “employees” cannot be applied to work with a different purpose.

What was actually stated in Fenton was far more tempered than suggested in Guerin:

The defendant relies upon Re Kaszuba  v.  Salvation Army Sheltered Workshop et al. (1983), 1983 CanLII 1795 (ON SC), 41 O.R. (2d) 316 saying that the work programs at F.P.I. are therapeutic in nature and not employment as such.  However, Linden J. states very clearly in Kaszuba that the decision is limited to its facts.  He goes on to say further that assisting disabled persons to do useful work will not automatically exempt a sheltered workshop from the operation of the Employment Standards Act, R.S.O. 1980, c. 137, and that there are a number of other relevant factors that should be considered to determine if a rehabilitation relationship exists, such as, (a) the method and amount of payment, (b) profitability of the work, (c) hours of work, (d) various conditions that must be met at work, and (e) the amount and type of counselling.

(page 26)

Neither Re: Kaszuba nor Fenton stand for the position that rehabilitation is mutually exclusive from employment. They state that the overall purpose of the program must be assessed and that an employment relationship may still be found if there are enough indicators of such a relationship despite the rehabilitative aspects. Fenton established the “real economic benefit” test in this light (page 35 of the decision). Very similar reasoning was applied in Amalgamated Meat Cutters and an employment relationship was found in that case, despite the rehabilitative aspects.  

The Court in Guerin also stated that CORCAN was a department under Correctional Service of Canada, therefore the Canada Labour Code did not apply, and that if the inmate workers were employees, they would have to apply under the public service. This would leave them in the same position as they were in Jolivet, off the public service list and ineligible (unless such an argument I have suggested above is successful)

 

Conclusion

If inmate workers are employees, and are not part of the federal public service, they must be part of the federal private sector, and must have access to the Canada Labour Code labour relations regime. If they are denied both, they must fall under the protection of the labour relations regime in whatever province they are in. They cannot continue to be left wandering in the unconstitutional territory in which s. 2(d) of the Charter is entirely unavailable. The exclusion is even more problematic if the employees are vulnerable and in greater need of protective measures, as is the case.

All roads lead to providing inmate workers the opportunity to rectify their circumstances through application of s 2(d) of the Charter. As put by the majority in Health Services:

[82] The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work.

 

Cases

Amalgamated Meat Cutters & Butcher Workmen v. Guelph Beef Centre Inc, 1977 CanLII 489 (ON LRB) (Amalgamated Meat Cutters)

Canadian Prisoners’ Labour Confederation and Correctional Service Canada, Re 2015 CIRB 779 (Confed)

Fenton v. British Columbia (1991), 56 B.C.L.R. (2d) 170 (B.C.C.A)(Fenton)

Guérin v. Canada (Attorney General), 2018 FC 94 (Guerin)

Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27 (Health Services)

Hotwire Electric-All Inc., [2016] O.L.R.D. No. 896

Jolivet v. Treasury Board (Correctional Service of Canada) 2013 PSLRB 1 (Jolivet)

Re Kaszuba and Salvation Army Sheltered Workshop et al. 41 O.R. (2d) 316

Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 [2015] 1 S.C.R. 3 (Mounted Police)

Ontario (Attorney General) v. Fraser, [2011] 2 S.C.R. 3 (Fraser)

Rizzo & Rizzo Shoes Ltd. (Re), [1998] S.C.J. No. 2 (Rizzo Shoes)

Saskatchewan Federation of Labour v. Saskatchewan, [2015] 1 S.C.R. 245

St. Paul’s Hospital (Re) Between: St. Paul’s Hospital (Hospital), and Professional Association of Residents and Interns (Applicant), [1976] B.C.L.R.B.D. No. 43