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Montreal, December 22, 2010 --- The Canadian Human Rights Commission appears to have adopted a new rule on discrimination that may signal a step backwards for equality in Canada.

Last October, CRARR wrote to the Commission to file a complaint on behalf of a Black woman who was denied a position with a federally regulated employer due to pending criminal charges. These charges resulted from an incident that was formally denounced as racial profiling; due to pending charges (her trial has not even begun), she cannot obtain security clearance papers from the local police service to submit to the employer.

In a summary to the Commission, CRARR states that due to extensive research and anecdotal evidence of Black Canadians being disproportionately targeted and criminalized by law enforcement, a criminal background check made within the context of a job application leading to a blanket denial of the position can have an adverse impact Canadians of African descent. CRARR’s complaint is therefore about indirect/systemic race-based discrimination.

Citing Canadian and American jurisprudence on discrimination, CRARR affirms that blanket denial of employment due to criminal background or credit checks discriminates against Black persons, especially if the charges are not directly related to the job requirements and if the employer has not taken reasonable steps to inquire into the nature of or the reasons for these charges. In the U.S., lawsuits related to the absolute bar to employment based on criminal arrests and convictions records, have led to numerous charges of discrimination against African and Hispanic Americans.

On December 15, two months later, an intake worker informed CRARR that she would recommend rejecting the complaint since pending criminal charges are not a ground of non-discrimination in the Canadian Human Rights Act (CHRA). When told that the complaint is actually about systemic discrimination based on race, the intake worker replied that the Commission only deals with direct discrimination and that it requires proof of direct discrimination; in this case, evidence of direct discrimination is denial of employment based on pending criminal charges, not race.

When prodded as to whether the Commission only deals with direct discrimination and that it no longer accepts complaints of systemic discrimination, she answered affirmatively. When told that similar cases of adverse impact discrimination involving criminal charges or convictions and racialized persons have been addressed by the courts in the U.S., and that the issues and concepts of discrimination are identical in Canada, this investigator stated American law on discrimination and cases do not apply to Canada.

She concluded that she would recommend the closure of the file on the basis of s. 41(c) of the CHRA (i.e. the complaint is beyond the jurisdiction of the Commission because pending criminal charges are not a ground of non-discrimination in the law).

“If it is indeed its official position (that only complaints of direct discrimination are accepted), the Commission is shutting the door on all Canadians who experience systemic discrimination,” says Simone Samuels, a law intern at CRARR who works on the case. “Is the Commission quietly backtracking on gains on equality of the last three decades?”