Criminal convictions and public employment

Public employees are held to a higher standard than employees in the private sector under the Criminal Code. Subsection 750(1) of the Criminal Code states:

    1. (1) Where a person is convicted of an indictable offence for which the person is sentenced to imprisonment for two years or more and holds, at the time that person is convicted, an office under the Crown or other public employment, the office or employment forthwith becomes vacant.

There is little jurisprudence on this provision. This is understandable, given the definitive nature of the provision. The impact of the provision on an individual is sometimes considered in the sentencing phase as a mitigating factor. For example, see R.v. Byrne.

However, a recent Federal Court decision has looked at this provision in the context of a reduction in a sentence on appeal.

In this case, an employee of the Correctional Service of Canada (CCS) was convicted of criminal offences and sentenced to 38 months of imprisonment. With credit on a 1:1 basis for eight months’ of pre-trial custody, the remaining time in his sentence was 30 months. He was therefore advised by his employer that he was no longer employed.

The BC Court of Appeal then reduced his sentence to 36 months less a day and increased his credit for pre-trial custody to 12 months, for a total sentence of 2 years, less a day.

The now former employee’s union representative advised the employer of the reduced sentence. The CSC stated that subsection 750(1) of the Code still applied, as the conviction had not been set aside. It therefore argued that subsection 750(6) of the Code, which provides that “[w]here a conviction is set aside by competent authority, any disability imposed by this section is removed”, was not applicable.

The former employee judicially reviewed the employer’s decision.

The Federal Court held that failing to consider time spent in pre-sentence custody as part of the term of imprisonment contemplated in section 750 of the Code:

would give rise to the possibility that one of two public servants found guilty of the same offense in the same circumstances could suffer the vacancy of their employment, and the other avoid such vacancy, for the sole reason that one of them pled guilty shortly after arrest (and thus had no pre-sentence custody to be credited against sentence), and the other pled not guilty and had many months in pre-sentence custody to be credited. The result would be that the public servant who accepted guilt from the beginning would be treated more harshly than the public servant who refused to accept guilt. In my view, this is an absurd result that Parliament did not intend.

Section 750 of the Criminal Code is a reflection of Parliament’s intention to prevent individuals who have committed offences of sufficient gravity from continuing their employment with the public service. Given the importance of decisions taken by public servants in the lives of members of the public, their integrity is a legitimate concern…. Section 750 of the Criminal Code refers to the total time taken into account by the sentencing judge in determining the degree of punishment justified by the gravity of the offence and the moral blameworthiness of the offender.

The Federal Court conveniently ignored the obiter of the BC Court of Appeal in the sentencing appeal:

…[He] was, apparently, a good employee. According to his counsel, he is not automatically deprived of his employment if he receives a provincial term of imprisonment. It will be up to the Correctional Service of Canada if they wish to reinstate him, given his criminal convictions, but this will, at least give him an opportunity to be employed.

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Columns published on slaw.ca

"Chapter 22: Unions and Collective Agreements", in Palmer and Snyder, Collective Agreement Arbitration in Canada, 4th edition, 2009 and 5th edition, 2013.

“Non-consensual expedited processes: the intersection of fairness and expediency”, Lancaster House.

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