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Ms. B v. Ministry of Public Safety and Solicitor General (Criminal Records Review Program), 2025 BCHRT 185

Date Issued: August 13, 2025
File: CS-004136

Indexed as: Ms. B v. Ministry of Public Safety and Solicitor General (Criminal Records Review Program), 2025 BCHRT 185

IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)

AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal

BETWEEN

Ms. B
COMPLAINANT

AND:

His Majesty the King in the Right of the Province of British Columbia as represented by the Ministry of Public Safety and Solicitor General (Criminal Records Review Program)
RESPONDENT

REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1) (a) and (c)

Tribunal Member: Amber Prince

On their own behalf: Ms. B

Counsel for the Respondent: Jaclyn Salter

I      INTRODUCTION

II     BACKGROUND

III    ANALYSIS

IV  ORDER AND CONCLUSION

I          INTRODUCTION

[1]               This a decision about whether to dismiss Ms. B’s human rights complaint without a hearing. As part of this decision, I discuss sensitive information about Ms. B’s criminal record and related circumstances. In a letter decision on July 11, 2025, I granted her application to anonymize her name.

[2]               Ms. B is an Indigenous woman. In 2018, she applied to work at three different organizations. Because the organizations work with children or vulnerable adults, Ms. B was required to undergo a criminal records check with the Criminal Records Review Program, administered by the Minister of Public Safety and Solicitor General [Ministry]. Based on her criminal record, the Criminal Records Review Program determined that Ms. B presented a physical risk to children and vulnerable adults. As a result, Ms. B became ineligible to work at the organizations she applied to.

[3]               Ms. B filed a complaint alleging that the Criminal Records Review Program’s risk assessment discriminated against her in the area of employment and based on the protected characteristics of criminal conviction and Indigenous identity, in violation of s. 13 of the Human Rights Code.

[4]               The Ministry applies to dismiss Ms. B’s complaint on the basis that the Tribunal does not have jurisdiction to hear the complaint or should not exercise it in this case: Code, s. 27(1)(a). The Ministry also applies to dismiss Ms. B’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c).

[5]               For the reasons that follow, I deny the Ministry’s dismissal application. The Tribunal has jurisdiction to consider Ms. B’s allegations of discrimination, and it is appropriate to exercise that jurisdiction in this case. The Ministry has not otherwise persuaded me that Ms. B has no reasonable prospect of proving discrimination.

[6]               I apologize to the parties for the delay in issuing this decision.

II       Background

[7]               Below, I summarize the background to Ms. B’s complaint, for context. The background is taken from the materials filed by the parties. I have considered all the materials but only refer to what is necessary to explain my decision. I make no findings of fact.

A.     Ms. B’s childhood and youth

[8]               Ms. B was raised in Manitoba by her maternal grandmother, who was a survivor of the residential school system: R v.[B], [2011], Ontario Superior Court decision [R v. B, 2011], paras. 121-123. Ms. B was raised by her grandmother because her mother was murdered by her father when she was only six months old: para. 120. Ms. B only learned of this when she was nine or ten years old. When she learned the truth, she became angry, apathetic about school, and started acting out: paras. 80 and 124. She did not receive any counseling to help her deal with her mother’s murder by her father:para. 88.

[9]               On four or five occasions, the Children’s Aid Society in Manitoba removed Ms. B and her siblings from their grandmother’s home. They were placed in foster homes in white communities, and experienced racism: para. 82. Ms. B completed grade six and learned how to drive. She started stealing cars to get away from her foster or group homes: R v. B, 2011, para. 83.

[10]           By 1996, at the age of 17, Ms. B was serving time at the Manitoba Youth Centre – the largest correctional centre in Manitoba. While there, she assaulted a staff member because she wanted to be transferred to an adult facility to be with her older sister. Her sister had assaulted a guard at the youth centre and had been transferred to an adult facility. Ms. B was transferred to the same facility where her sister was being held: R v. B, 2011, para. 86.

B.     Ms. B enters the federal prison system as an expecting mother

[11]            In February 2000, at the age of 21, and pregnant, Ms. B entered the federal prison system, as a first-time federal offender: Affidavit of K. Deroche, Exhibit A, p. 8. She was incarcerated at the Saskatchewan Penitentiary to serve a three-year and six-month sentence for miscellaneous offences, including theft, mischief, and assault with a weapon: R v. B, 2011, paras. 26-29.

[12]           In April, 2000, she was one of a number of inmates involved in taking another inmate hostage and starting a fire. The inmates demanded gender-based healthcare supplies, medications, and coffee. On Ms. B’s account, she participated to show that she was part of the group and did what was necessary to protect herself: R v. B, 2011, para. 93; Deroche Affidavit, Exhibit A, p. 15. Given her involvement, Ms. B was convicted of various charges including forcible confinement, assault with a weapon, mischief, and arson. She was placed in segregation for two to three months as a result: R v. B, 2011, paras. 29-31, and 93.

[13]           While at the Saskatchewan Penitentiary, Ms. B began preparing for the birth of her child. She took a parenting course and began seeing an Elder. She maintained her “medium security” status, so that she would be eligible for a parent/child program within the prison system. The parent/child program would allow her to be with her child once born: R v. B, 2011, para. 94.

[14]           Ms. B’s child was born in October, 2000. Ms. B and her baby were transferred directly from hospital to a parent/child program within the prison system. The program was located at a healing lodge in Saskatchewan and was an option for minimum and medium security female inmates. A condition of participation in the program was total abstinence from alcohol or drugs: R v. B, 2011, paras. 32-33.

[15]           On the evening of October 4, 2001, based on a suspicion that Ms. B had consumed alcohol or drugs, the authorities removed Ms. B’s baby from her care: R v. B, 2011, paras. 34. At the time, Ms. B was still breastfeeding the baby who was not quite a year old: para. 96. At first, staff told her it was just for the night. She agreed, believing that her baby would be returned to her in the morning, she would breastfeed the baby, and there would be a discussion about her suspected alcohol or drug use: paras. 97-98.

[16]           However, on the morning of October 5, 2001, staff told Ms. B that her baby was being sent to live with a family member in Winnipeg, and all the baby’s belongings had been removed. Ms. B was crying and enraged that her child was taken from her: R v. B, 2011, paras. 98-99.

[17]           That night, Ms. B decided to leave the lodge and invited another inmate, Ms. C, to join her. She was going to find a way to Winnipeg to see her baby. They made weapons and left just after the bed check. Ms. B was aware that exiting the lodge would activate an alarm. After exiting the lodge and activating the alarm, Ms. B and Ms. C encountered correctional officer, Ms. T: R v. B, 2011, paras. 35-36 and 98-99.

[18]           Ms. B told Ms. C to hit Ms. T with the makeshift weapon that Ms. B had. Ms. C struck Ms. T in the head with a sock containing several pieces of metal, and Ms. T fell to her knees. When Ms. T attempted to radio other staff, Ms. B held a paring knife to her throat and said, “You take my baby and then you’ll see I don’t give a fuck.” Ms. B and Ms. C confined two other staff in a room, made Ms. T to open a safe and took $25 from the safe.

[19]           Ms. B and Ms. C left the lodge. They were arrested the next morning. As a result of the incident, Ms. T sustained a concussion, was diagnosed with Post Traumatic Stress Disorder, and was unable to return to corrections work. For Ms. B’s part in the incident, she was convicted of robbery, assault causing bodily harm, forcible confinement, escape from lawful custody, and break and enter. She was sentenced to an additional four years in the federal prison system, to run consecutive to the sentence she was already serving: R v. B, 2011, paras. 38-39.

[20]           From 2002-2007, Ms. B was incarcerated at seven federal prisons in Saskatchewan, Nova Scotia, Quebec, Ontario, and Edmonton: R v. B, 2011, paras. 8, 29, 46, 49, 53, 56; Deroche Affidavit, Exhibit A, p. 9. It is not clear where Ms. B’s child lived during this time or whether the two had any contact at all.

[21]           From 2002-2007, Ms. B incurred further charges while incarcerated. The charges related to her participation in assaults and hostage-taking. The assaults stemmed from arguments, animosities, anger at her situation, or as part of hostage-taking: R v. B, 2011, paras. 18, 98-99, 107-108, 112-113. The aim of the hostage-taking was to use it as a negotiating tactic to make demands on correctional authorities, such as more yard time, programming, the ability to make a phone call, and a transfer to another institution: paras. 10, 58, 101 and 157. The assaults and hostage-taking led to further convictions and sentences. Ms. B spent the majority of her incarceration in isolation/segregation: Deroche Affidavit, Exhibit A, p. 9-10.

[22]           Ms. B was last convicted of uttering threats. That offence occurred in January, 2010: Deroche Affidavit, Exhibit A, p. 4. However, by that time, the Crown’s application to the Court to have Ms. B declared a dangerous offender was underway: R. v. [B], a 2009 decision of the Ontario Superior Court [R v. B, 2009]. An aspect of the dangerous offender application was that Ms. B undergo an assessment by a psychiatrist, Dr. W. Dr. W met with Ms. B for approximately 20 minutes in August 2008. Ms. B was cautioned about the lack of confidentiality between them, and she declined to provide information for the purpose of the assessment: R v. B, 2011, para. 126. Dr. W reviewed the extensive records made about Ms. B, including her criminal records, child and family service records, and school records, and provided his assessment of her in a report: R v. B, 2011, para. 126.

[23]           In his report, dated December 20, 2008, Dr. W concluded that, based on Ms. B’s history, and clinical variables, her risk for future violent behaviour was high: R v. B, 2011, para. 131.

[24]           Based on Ms. B’s criminal record, as of 2010, and Dr. W’s report, a Justice of the Ontario Superior Court designated Ms. B a dangerous offender in 2011 and sentenced her to a period of indeterminate detention: R v. B, 2011, para. 190.

C.     Ms. B seeks therapy and makes progress

[25]           Ms. B remained a maximum-security inmate, but in May, 2013, she started to access therapy available to her. At that time, she began individual psychotherapy to address issues such as substance abuse, crime cycle, relationships, childhood influences, anger, and other emotions. The psychological therapy report about Ms. B’s sessions described her progress as “excellent”: Deroche Affidavit, Exhibit A, p. 10.

[26]           On January 9, 2015, the Ontario Court of Appeal heard Ms. B’s appeal of her dangerous offender designation: R. v. [B], a 2015 Ontario Court of Appeal decision. The Court dismissed her appeal on the basis that the lower Court had found on the evidence that she met the dangerous offender criteria, and it was a reasonable exercise of that Court’s discretion to declare her as such.

[27]           By June, 2015, Ms. B was incarcerated at the Fraser Valley Institute for Women in BC. She had completed the 36-session Moderate Intensity Women’s Module Intervention Program. The facilitator of that program described Ms. B as “clearly able to articulate emotional states and strategies to remove herself from situations until ready to deal with issues respectfully and without aggression”: Deroche Affidavit, Exhibit A, p. 10-11.

[28]           In July, 2015, Ms. B began therapy with psychiatrist Dr. L. Their meetings initially occurred at the prison, and then Ms. B was granted permission to attend in the community: Deroche Affidavit, Exhibit A, p. 14.

[29]           In December, 2015, Ms. B was moved from maximum security to medium security given her progress, through programming, on her risk factors: Deroche Affidavit, Exhibit A, p. 11.

[30]           In January 2016, Ms. B completed the Aboriginal Women Offender Moderate Intensity Program, and in October, 2016 she completed the Aboriginal Women Offender High Intensity Program:Deroche Affidavit, Exhibit A, p. 11.

[31]           In a 2017 psychological assessment report, Ms. B reflected that looking back, it was like looking at a different person. She had been coming from a place of hurt and would not ask for help. She had been a part of a subculture of “prisonization” in a hostile, negative environment. She said that she regretted “every single act of violence I did to other people. It really bothers me”: Deroche Affidavit, Exhibit A, p. 11-12.

[32]           By November 2017, Ms. B had completed approximately 140 hours of therapy with Dr. L, which addressed, for example, dealing with consequences of trauma, underlying vulnerabilities, and specific developmental events contributing to behavioural problems: Deroche Affidavit, Exhibit A, p. 14.

[33]           On November 10, 2017, Dr. L wrote a psychiatric memo addressing the general course of Ms. B’s treatment and therapeutic progress. He reconsidered Ms. B’s earlier assessment by Dr. W in light of “extensive new information resulting from treatment” and the impact of Ms. B’s therapeutic progress for future: Deroche Affidavit, Exhibit A, p. 13-14.

[34]           Dr. L reported the following about Ms. B:

a.      Ms. B made “substantial progress” in therapy by improving emotional self-regulation and decreasing the effects of abuse and trauma.

b.      The process of building trust and therapeutic rapport challenged Ms. B’s coping strategies that helped her survive long periods in solitary confinement and maximum security, namely masking feelings of vulnerability with anger and rage.

c.       She felt shame and remorse for her actions, expressed concern about her victims, and ruminated about how she harmed them.

d.      While in the prison system, she promoted the idea that she was “psychopathic” because it gave her status in the prison community and afforded her a degree of self-protection.

e.      An exploration of the more serious offences, like the hostage-taking, revealed that they only occurred in the correctional setting and after the apprehension of Ms. B’s child. When her child was apprehended it was “as if all the abusive episodes of her life coalesced into a global and overwhelming sense of being threatened and alone.”

f.        This formative experience, compounded by a history of Ms. B experiencing multiple losses, attachment issues, and abuse made her feel intensely vulnerable, in a setting where it was not safe to show vulnerability. She masked her vulnerability and protected herself through attack instead.

g.       An understanding of Ms. B’s circumstances was key to understanding the offences she committed, her anger, and the “emotionless façade” she developed to cope with prison life.

h.      Dr. L concluded that the factors linked to Ms. B as a risk had “improved significantly.” Over the past few years, she demonstrated a consistent and sustained change in her behaviour. For a much longer period, she was not involved in the more serious institutional behaviour – which contributed to the dangerous offender designation.

i.        He recommended that Ms. B continue with therapy and that active steps be taken to rehabilitate her in the community.”

Deroche Affidavit, Exhibit A, p. 14-17.

[35]           As a result of her ongoing progress, in May 2018, Ms. B was released on parole to a healing lodge. She was initially released on parole for two months. Her parole was repeatedly renewed after that in six-month increments. Her parole officer suggested that the parole renewals indicated Ms. B’s “level of functioning and perceived risk”: Deroche Affidavit, Exhibit A, p. 18. A June 13, 2018 psychiatric memo described her transition as “smooth and uneventful” and that she was responding well to parole and life in the community: Deroche Affidavit, Exhibit A, p. 13. She had regular contact with her family outside BC, and hoped to reconnect with her child, but understood this may take time: Deroche Affidavit, Exhibit A, p. 13.

[36]           A November 1, 2018 Correctional Plan stated that Ms. B’s positive response to her community reintegration could not be ignored, that her short-term progress was “tremendous”, and that she could function in the community with minimal or no intervention: Deroche Affidavit, Exhibit A, p. 13.

[37]           Part of Ms. B’s reintegration goals included employment to support herself. By 2018, she had five positive reference letters, including from a Senator. The Senator said she had known Ms. B for more than two decades. She described Ms. B as a brilliant and extremely capable advocate, educator, and mentor to women in and out of prison: Deroche Affidavit, Exhibit A, p. 21. Ms. B also had a reference from a law student with 25 years experience as a police officer. The law student described Ms. B as hard working, focussed, and with a keen ability to work with people of varying backgrounds: Deroche Affidavit, Exhibit A, p. 22.

[38]           A director with the Canadian Association of Elizabeth Fry Societies reported working with Ms. B when Ms. B trained and was hired as a peer advocate for women in prison. The director described Ms. B as able to effectively leverage her experiences to help other women in prison and promote their human rights: Deroche Affidavit, Exhibit A, p. 22.

D.    Ms. B’s employment offers and criminal records check

[39]           In 2018, Ms. B was offered positions at three organizations in BC, including a peer support position. One organization provided services to women, the second provided services to Indigenous people, and the third provided services to people living with mental health challenges.

[40]           Given the nature of the services provided by the organizations, they were subject to the Criminal Records Review Act. Under this Act, the organizations must require anyone working with vulnerable adults or children under 19 to get a criminal record check through the Criminal Records Review Program. The Criminal Records Review Program, administered by the Minister of Public Safety and Solicitor General, conducts the criminal records check.

[41]           Ms. B applied for a criminal records check on July 9, October 29, and November 28, 2018. Based on her criminal record, the Deputy Registrar of Criminal Records Review Program was required to assess whether she presented a risk of physical, sexual, or financial abuse to vulnerable adults and/or a risk of physical or sexual abuse to children: Criminal Records Review Act, s. 4 (2) and (3).

[42]           On April 3, 2019, the Deputy Registrar requested that the Criminal Records Review Program Investigator review Ms. B’s application and produce a report “to determine whether she presented a risk of physical or sexual abuse to children and/or a risk of physical, sexual or financial abuse to vulnerable adults”: Dismissal Application, para. 23.

[43]           The Program Investigator reviewed the details of Ms. B’s offences and psychiatric/psychologist reports. He personally interviewed Ms. B and her parole officer. He also considered Ms. B’s written submission and character references: Dismissal Application, para. 24 and Deroche Affidavit, Exhibit A.

[44]           On June 24, 2019, the Program Investigator produced a 22-page report detailing his investigation: Exhibit A. At the conclusion of his report, he recommended that the Deputy Registrar make the determination that Ms. B does not present a risk of physical or sexual abuse to children and/or a risk of physical, sexual, or financial abuse to vulnerable adults: Deroche Affidavit, Exhibit A, p. 22.

[45]           The Deputy Registrar did not follow the Program Investigator’s recommendation. In a letter dated July 31, 2019, re-sent on September 24, 2019, the Deputy Registrar notified Ms. B that she was inclined to disagree with the Investigator’s recommendation and gave Ms. B an opportunity to respond. Ms. B was granted an extension and made a submission on December 9, 2019: Dismissal Application, para. 26; Deroche Affidavit, Exhibit C, p. 30.

[46]           The Deputy Registrar’s July 31, 2019 letter to Ms. B, and Ms. B’s December 9, 2019 submission to the Criminal Records Review Program are not before me.

[47]           In a letter dated December 11, 2019, the Deputy Registrar determined that Ms. B presented a risk of physical abuse to children and vulnerable adults: Deroche affidavit, Exhibit B, p. 27. The Deputy Registrar said that her determination was based on all of the information provided to her, and in particular, the fact that Ms. B had a dangerous offender designation and a history of “significant violence and use of weapons.”

[48]           The Deputy Registrar advised Ms. B that she could request a reconsideration of the determination to the Registrar of the Criminal Records Review Program within 30 days: Criminal Records Review Act, s. 5. In accordance with the Criminal Records Review Act, the Deputy Registrar’s determination was also sent to the organizations who offered Ms. B employment: s. 4.1(4). Unless reconsidered, the Deputy Registrar’s determination meant that the organizations were not permitted to hire Ms. B: Criminal Records Review Act, s. 9(2).

[49]           Ms. B requested a reconsideration of the Deputy Registrar’s determination. In a letter dated May 20, 2021, the Registrar provided a reconsideration decision, which confirmed the Deputy Registrar’s decision: Deroche Affidavit, Exhibit C, p. 30. The Registrar said he took into account a complete review of the Criminal Record Review Program’s file, the Program Investigator’s report, the Deputy Registrar’s determination, and Ms. B’s submissions: Deroche Affidavit, Exhibit C, p. 32.

[50]           The Registrar concluded that several aspects of Ms. B’s history weighed in favour of a finding of risk: a history of significant violent offences, the dangerous offender designation, and that Ms. B’s “behaviour and attitudes” leading up to the dangerous offender application was not “sufficiently resolved or distanced as to enable work with children or vulnerable adults”: Deroche Affidavit, Exhibit C, p. 34.

E.     Ms. B’s human rights complaint

[51]           On May 24, 2021, Ms. B filed a three-page human rights complaint against the Criminal Records Review Program. She alleges that the Deputy Registrar and Registrar:  

a.      relied on outdated information about her;

b.      disregarded relevant criteria and information in their criminal record check;

c.       put too much focus on her dangerous offender designation;

d.      contributed to her stigmatization as an Indigenous person with a criminal record;

e.      prevented her from gaining meaningful employment; and

f.        otherwise treated her unfairly by not responding in their allotted time frames and ignoring some of her emails.

[52]           Ms. B describes in her complaint feeling humiliated, depressed, marginalized, frustrated, and berated as a result of the Deputy Registrar and Registrar deeming her a risk to vulnerable adults and children.

III     ANALYSIS

[53]           Because Ms. B is Indigenous, I have found it necessary to situate her complaint, and the parties’ dismissal application materials, in social context. The cases that come before us do not take place in a historical, cultural, or social vacuum: R. v. Barton, 2019 SCC 33, para. 198.

A.    Social context

[54]           In complaints involving Indigenous people, the Tribunal must take into account the past and present effects of colonialism and historical trauma on Indigenous people without requiring the individual in each case to prove those events and effects: Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275, para 107, citing the intervener submission of the Union of BC Indian Chiefs [emphasis in original]. All decision makers have an obligation to bring awareness of that fact, and the reasons for it, to the cases that come before them: Campbell, para. 107. Ms. B’s complaint is inseparable from her interactions with the criminal justice system. Therefore, I bring awareness of the intersection between the effects of colonialism and Indigenous peoples’ experiences with the criminal justice system.

The overrepresentation of Indigenous peoples’ in the criminal justice system

[55]           In R. v. Ipeelee, [2012] 1 SCR 433, the Supreme Court of Canada said that the “overwhelming message” from various reports and commissions on Indigenous peoples’ involvement in the criminal justice system is that it is “intimately tied to the legacy of colonization”: para. 77. Similarly, in R. v. Sharma, 2022 SCC 39, the Supreme Court of Canada said that the overrepresentation of Indigenous people in Canada’s prisons is a present-day product of Canada’s colonial past: para. 114. The Ministry acknowledges that the history of Indigenous overrepresentation in the criminal justice system “is undeniable”: Dismissal Application, para. 79.

[56]           Despite this recognition, the overincarceration of Indigenous people has gotten worse not better. While Indigenous incarceration rates have climbed, the incarceration rate of Indigenous women have soared: Sharma, para. 114.

[57]           In Sharma, the Court relied on data showing that while Indigenous women account for only about four percent of the female population, Indigenous women now comprise 42 percent of federally incarcerated women, with their population in federal institutions having increased by “an astounding” 73.8 percent over the past decade”: para. 125, citing, Office of the Correctional Investigator of Canada (OCI), Annual Report 2020-2021 (2021) at p. 41.

[58]           Inside prisons, Indigenous people experience some of the “harshest effects”: Sharma, para. 126. Many incarcerated Indigenous people have dealt with complex childhood trauma that is by its very nature intergenerational. Once in prison, they must confront a penal system in which physical, emotional, mental, and spiritual deprivation is common: Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019) [Reclaiming Power], Volume 1a at p. 635.

[59]           Indigenous people are more likely than their peers to “receive higher security classifications, to spend more time in segregation, to serve more of their sentence behind bars before first release, to be under-represented in community supervision populations, and to return to prison on revocation of parole”: Ewert v. Canada, 2018 SCC 30, para. 60. Indigenous inmates fare worse at almost every correctional decision point than non-Indigenous inmates: British Columbia Civil Liberties Association v. Canada (Attorney General), 2018 BCSC 62 [BCCLA v. Canada], para. 487. Indigenous people are also overrepresented in the dangerous offender population: R. v. Boutilier, 2017 SCC 64, para. 108; R. v. Smarch, 2019 YKCA 5, para. 45.

The impacts of segregation and disproportionate impact on Indigenous inmates

[60]           Inmates in segregation are at risk of serious psychological harm, including mental pain and suffering. Some of the specific harms include: “anxiety, withdrawal, hypersensitivity, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behaviour”: BCCLA v. Canada, para. 247. Many inmates are likely to suffer permanent harm as a result of their confinement: BCCLA v. Canada, para. 249. It follows that Indigenous inmates, who spend more time in segregation than other inmates, disproportionately experience the impacts of segregation.

[61]           In light of the harms associated with segregation, the BC Supreme Court in BCCLA v. Canada struck down aspects of the segregation law in question as unconstitutional. The BC Court of Appeal upheld the BC Supreme Court’s decision that the segregation law violated the right to life, liberty, and security of the person, contrary to s. 7 of the Canadian Charter of Rights and Freedoms: British Columbia Civil Liberties Association v. Canada (Attorney General), 2019 BCCA 228. In a case raising similar issues, the Ontario Court of Appeal concluded that imposing solitary confinement for a period of more than 15 days is cruel and unusual punishment, in violation of s. 12 of the Charter: Canadian Civil Liberties Association v. Canada, 2019 ONCA 243.

The validity of applying risk assessment tools to Indigenous offenders

[62]           In Ewert, the Court addressed the use of psychological test results and recidivism risk assessments to make important correctional decisions about offenders, including Indigenous offenders. The Court held that the assessment tools in question violated the governing legislation because Corrections Canada failed to ensure the tools were valid and unbiased when applied to Indigenous offenders: para. 63-65.

[63]           The Court said that the “clear danger” posed by the use of the assessment tools was the overestimation of the risk posed by Indigenous inmates and unjustifiable disparities in correctional outcomes – in areas in which Indigenous offenders are already disadvantaged: Ewert, para. 65. Such disparities for Indigenous offenders may include “unnecessarily harsh conditions while serving their sentences, including custody in higher security settings and unnecessary denial of parole”: para. 65. Overestimation of risk may lead to reduced access to rehabilitative opportunities or bar an inmate from Indigenous-specific programming: para. 65.

[64]           The reduced accuracy of risk assessment tools in predicting the risk posed by Indigenous offenders was recognized in Ewert but appears not to have been corrected or quantified, as examined by the Alberta Court of Appeal in R v. Natomagan, 2022 ABCA 48. The Court found that the assessment tools in that case were prone to overestimate the risk posed by Indigenous offenders by “failing to consider or account for past discrimination, thereby potentially contributing to custodial over-representation”: para. 13. The Court said that courts and other decision-makers must make decisions with an awareness that “future projections of risk may be tainted by past imbalances, with the goal of forming, insofar as possible, an assessment of an offender’s risk that is both accurate and free of discriminatory inflation”: R v. Natomagan, para. 124.

Indigenous women and the criminal justice system

[65]           The harms of incarceration impact Indigenous women in particular ways. Many Indigenous women have described their path to incarceration as a “graduation” from foster care to youth detention, to provincial institutions, to federal institutions: Reclaiming Power, Volume 1a at p. 635. When Indigenous women are incarcerated because of a violent crime, it is most often in response to violence directed at themselves, their children or a third party: Reclaiming Power, p. 636 and 644. Since there are fewer institutions for women than there are for men, Indigenous women are more likely to be further away from their home communities when incarcerated, increasing the severity of the impact: BCCLA v. Canada, paras. 457 and 470.

[66]           Indigenous women in federal custody, when compared with non-Indigenous women, are overrepresented in segregation, use-of-force-incidents, and maximum security: Reclaiming Power, p. 635. Indigenous women are also assessed as “a higher risk,” more likely to be denied parole, and more likely to be returned to custody as a result of parole suspension or revocation: Reclaiming Power, p. 635.

[67]           Over 70 percent of Indigenous women in federal custody are also mothers to underage children. Those mothers are most often young, single, and the sole supporting parent: Sharma, para. 127, citing OCI, Annual Report 2014-2015 (2015), at p. 50; and K. Miller, “Canada’s Mother-Child Program and Incarcerated Aboriginal Mothers: How and Why the Program is Inaccessible to Aboriginal Female Offenders” (2018), 37 C.F.L.Q. 1, at p. 7. The separation of Indigenous women from their children, families, and communities; the cultural alienation, the lost jobs are harms that are difficult to quantify but “no less grave”: Sharma, para. 128.

Systemic Indigenous-specific discrimination and calls to action

[68]           Some have compared Canadian prisons to another version of residential schools: Sharma at para. 114 and 128, citing Truth and Reconciliation Commission, The Final Report of the Truth and Reconciliation Commission of Canada, vol. 5, The Legacy (2015), at p. 219:

Prison today is for many Aboriginal people what residential schools used to be: an isolating experience that removes Aboriginal people from their families and communities. They are violent places and often result in greater criminal involvement as some Aboriginal inmates, particularly younger ones, seek gang membership as a form of protection. Today’s prisons may not institutionally disparage Aboriginal cultures and languages as aggressively as residential schools did, but racism in prisons is a significant issue. In addition, prisons can fail to provide cultural safety for Aboriginal inmates through neglect or marginalization. Many damaged people emerged from the residential schools; there is no reason to believe that the same is not true of today’s prisons.

[69]           Like residential schools, the overincarceration of Indigenous people is “an ongoing source of intergenerational harm to families and communities” and a “striking sign of the discrimination that Indigenous peoples experience in ‘all part of the criminal justice system’”: Sharma, para. 114, citing Ewert, para. 57.

[70]           In its 2015 report, the Truth and Reconciliation Commission called for the elimination of the overrepresentation of Aboriginal people in custody, and in particular Aboriginal youth, over the next decade: Calls to Action, 30 and 38.

[71]           In Ewert, the Supreme Court of Canada said that: Indigenous people in the Canadian correctional system face systemic discrimination; that it is a longstanding and pressing concern; and that it perpetuates and contributes to the disparity in correctional outcomes between Indigenous and non-Indigenous offenders: para. 53. The systemic discrimination may include not accounting for the circumstances and needs of Indigenous people – a group amoung the most vulnerable to discrimination in the correctional system: paras. 53-54. The Court also recognized that the discrimination experienced by Indigenous people “whether as a result of overtly racist attitudes or culturally inappropriate practices, extends to all parts of the criminal justice system, including the prison system”: para. 57.

[72]           In Barton, the Supreme Court of Canada confirmed the existence of widespread racism against Indigenous people within the Canadian criminal justice system, including hurtful biases, stereotypes and assumptions around credibility, worthiness, and criminal propensity to name just a few: citing R. v. Williams, [1998] 1 SCR 1128, para. 199. In short, the Court said: “when it comes to truth and reconciliation from a criminal justice system perspective, much-needed work remains to be done”: para. 199. That work includes all participants in the criminal justice system taking reasonable steps to address systemic biases, prejudices, and stereotypes against Indigenous persons – particularly Indigenous women and girls – head-on: paras. 200 and 204.

[73]           This context properly situates Ms. B’s complaint within broader structural, systemic, forces which act as “built-in headwinds” to disadvantage Indigenous Peoples and people, especially Indigenous women, and mothers: RR v. Vancouver Aboriginal Child and Family Services Society (No. 6), 2022 BCHRT 116 [RR BCHRT], para. 307, upheld in R.R. v. Vancouver Aboriginal Child and Family Services Society, 2025 BCCA 151 [RR BCCA].

[74]           Against this backdrop, I turn next to the Ministry’s dismissal application. First, the Ministry argues, under s. 27(1)(a) of the Code, that the Tribunal should decline jurisdiction over Ms. B’ complaint. Second, the Ministry argues, under s. 27(1)(c) of the Code, that Ms. B’s complaint has no reasonable prospect of success. I will address these arguments in turn.

B.     Jurisdiction

[75]           The Ministry argues that the Tribunal should decline jurisdiction over Ms. B’s complaint for two reasons. First, the Ministry argues that Ms. B alleges that the Criminal Records Review Board treated her unfairly and simply disagrees with how it assessed her. The Ministry argues that: Ms. B has not otherwise alleged discrimination; she is asking the Tribunal to effectively reconsider the merits of the Criminal Records Review Program’s decisions; and that her recourse for her allegations is judicial review: Application to Dismiss, paras. 40-50. Second, the Ministry argues that Ms. B’s complaint does not fall within the area of employment under s. 13 of the Code, and therefore the Tribunal does not have jurisdiction to hear the complaint under s. 13: Application to Dismiss, para. 69.

[76]           I will address these arguments in turn. In doing so, I note that the Ministry framed its arguments about jurisdiction under s. 27(1)(a) of the Code: Complaint Response, paras. 26-28. Section 27(1)(a) states that the Tribunal may dismiss a complaint if it is not within the Tribunal’s jurisdiction. Based on the Ministry’s framing of its arguments, the Tribunal permitted the Ministry to apply to dismiss Ms. B’s complaint under s. 27(1)(a): Case Path letter decision, dated February 14, 2024.

[77]           Because the Tribunal permitted the Ministry to make arguments under s. 27(1)(a), and the Ministry has done so in its dismissal application, I will consider those arguments as framed. However, I note that, increasingly, the Tribunal has said that such arguments are not rooted in true jurisdictional questions. Instead, the Tribunal has recently held that it may be appropriate to consider such arguments under sections 27(1)(c), which considers whether the complaint has no reasonable prospect of success: Child L (by Mother L) v. BC Ministry of Education, 2025 BCHRT 27, para. 16; Mother K v. BC Ministry of Children and Family Development, 2025 BCHRT 44, para. 18; McDowell v. Motion Picture Production Industry Association of BC, 2024 BCHRT 351, para. 42.

Does Ms. B make allegations of discrimination?

[78]           The Ministry argues that Ms. B does not make specific allegations of discrimination, and points to Ms. B’s complaint allegation that the Criminal Records Review Program, did not provide her with “due or fair process”: p. 2. It follows, the Ministry argues, that Ms. B’s recourse was not a complaint to this Tribunal but to appeal the Criminal Records Review Board decisions in Court by applying for judicial review: Application to Dismiss, paras. 49 and 69.

[79]           As a starting point, I agree with the Ministry that an allegation about procedural fairness, absent an allegation of a discrimination, is not a matter for the Tribunal: Johar and others v. College of Veterinarians of British Columbia (No. 3), 2024 BCHRT 342, para 200. Instead, allegations of procedural unfairness are a matter for the Court to address upon judicial review: Brar and others v. B.C. Veterinary Medical Association and Osborne, 2007 BCHRT 363 [Brar 2007], paras. 59-60.

[80]           However, I do not agree with the Ministry that Ms. B does not make allegations of discrimination. She alleges that, in its assessment of her, the Criminal Records Review Program unfairly labelled her, marginalized her, and stigmatized her as an Indigenous ex-convict: Complaint p. 2.

[81]           Her complaint with respect to criminal conviction is similar to the complaint allegations in Mans v. British Columbia Council of Licensed Practical Nurses, 1990 CanLII 12489 (BC HRT) [Mans BCCHR]. In Mans, the BC Council of Human Rights (a predecessor to this Tribunal) accepted and heard Ms. Mans’ allegation that it was discriminatory for the BC Council of Licensed Practical Nurses to foreclose her employment prospects by refusing to license her as a practical nurse, based on her criminal conviction. Similarly, Ms. B alleges that it was discriminatory for the Criminal Records Review Board to foreclose her employment prospects by deeming her a risk to children and vulnerable adults, based on her criminal convictions. Given Ms. B’s allegations, I do not agree with the Ministry that Ms. B does not allege discrimination based on criminal conviction.

[82]           Ms. B also alleges that she was unfairly labelled, marginalized, and stigmatized by the Criminal Records Review Program in connection with her Indigenous identity. These allegations share some similarities to the allegations raised in Brar 2007, Johar, and RR BCHRT. Ineach of those cases, the complainants alleged that how they were assessed, in other forums, was tainted with racial discrimination. In each case, the Tribunal exercised its jurisdiction as the proper forum for such allegations.

[83]           For these reasons, I do not agree with the Ministry that Ms. B only alleges unfairness or only disagrees with the Criminal Record Review Board’s assessment of her. She alleges that her unrelated criminal convictions and Indigenous identity were factors in the assessment.

Is it appropriate for the Tribunal to address Ms. B’s allegations of discrimination?

[84]           The Ministry argues that even if Ms. B alleges discrimination, the Tribunal should decline jurisdiction because Ms. B is asking the Tribunal to reweigh the evidence that was before the Criminal Records Review Program. The Ministry points to Madadi v. B.C. (Ministry of Education), 2012 BCHRT 380. In that case, Mr. Madadi made a complaint about a panel decision of the Teacher Regulation Branch. The Tribunal declined to address Mr. Madadi’s complaint on the basis that Mr. Madadi had already sought judicial review of the Teacher Regulation Branch decision, and that the Court could address his allegation, which was, in effect, an allegation that he was deprived of natural justice in the Teacher Regulation Branch proceeding: paras. 116-119.

[85]           Here, I have no evidence before me that Ms. B applied to judicially review the Criminal Records Review Program decisions. It is not clear to me whether she could bring a judicial review with respect to the Criminal Record Review Board’s determinations. I do not have any evidence before me that the Criminal Records Review Board advised Ms. B that she had a right to judicial review. The Ministry has not explained how she could have applied for judicial review. I am also not aware of any cases judicially reviewing a determination made under the Criminal Records Review Act.

[86]           Further, I am not convinced that the Tribunal exercising jurisdiction over Ms. B’s complaint is akin to reweighing the evidence that was before the Criminal Records Review Program. The Tribunal is not assessing the validity of the decisions made by the Criminal Records Review Board, as a Court would on judicial review, but assessing whether in arriving at its decisions, it discriminated against Ms. B. These circumstances are similar to what occurred in Mans BCCHR. There, the BC Council of Human Rights determined that the BC Council of Licensed Practical Nurses’ decision to refuse Ms. Mans a licence was discriminatory. The BC Council of Licensed Practical Nurses appealed Mans BCCHR to the BC Supreme Court arguing that the BC Council of Human Rights had no jurisdiction over the BC Council of Licensed Practical Nurses’ decision because it was an exercise of that body’s statutory power under the Nurses (Licensed Practical) Act, as it was then.

[87]           The BC Supreme Court rejected this argument and confirmed that the BC Council of Human Rights properly exercised jurisdiction over Ms. Mans’ complaint despite the fact that the complaint was about a decision by the BC Council of Licensed Practical Nurses, under its statutory powers, about Ms. Mans: B.C. (Council of Licensed Practical Nurses) v. Mans, 1991 CanLII 809 (BC SC) [Mans BCSC], para. 7, upheld in British Columbia Council of Licensed Practical Nurses v. Mans, 1993 CanLII 1501 (BC CA).

[88]           The Court in Mans BCSC explained that in exercising its jurisdiction, the BC Council of Human Rights was not affecting the validity of the BC Council of Licensed Practical Nurses’ decision about Ms. Mans, but assessing whether in arriving at that decision, the BC Council of Licensed Practical Nurses discriminated against the complainant: para. 7. This reasoning is echoed by the Tribunal in Brar 2007 at para. 64. In my view, the reasoning in Mans BCSC and Brar 2007 is applicable here. In exercising jurisdiction over Ms. B’s complaint, the Tribunal is not affecting the validity of the Criminal Record Review Board’s decisions about her, or assessing whether those decisions are correct, but assessing whether in arriving at those decisions, the Criminal Records Review Program discriminated against her. The findings in Madadi, based on the specific circumstances in that case, do not, in my view, disturb the reasoning in Mans BCSC and Brar 2007, and the application of that reasoning here.

[89]           Last, I note that the BC Court of Appeal recently affirmed that the Tribunal is the appropriate body to address allegations of discrimination because it is the only body which can provide a remedy for discrimination: RR BCCA, para. 77, citing Vancouver Aboriginal child and Family Services Society v. R.R, 2024 BCSC 97, para. 97. Ms. B has no remedy for a discrimination claim on judicial review to the Court: Honda Canada Inc. v. Keays, 2008 SCC 39, para. 63; Canada (Attorney General) v. McArthur, 2010 SCC 63, paras. 13-17; Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, paras. 19, 26-30.

[90]           Ms. B’s recourse for the discrimination she alleges is not a judicial review before the Court but a human rights complaint to this Tribunal – the body empowered by the Code to address discrimination and provide a remedy for it. In these circumstances, the Tribunal has jurisdiction over Ms. B’s complaint, and it is appropriate for the Tribunal to exercise that jurisdiction.

Is Ms. B’s complaint an employment complaint?

[91]           The Ministry also argues that the Tribunal does not have jurisdiction over Ms. B’s complaint, because it does not fall under the area of employment protected under the Code. It is the Ministry’s burden to persuade me that Ms. B’s allegations are not protected in the area of employment. I am not persuaded by the Ministry’s arguments and decline to dismiss Ms. B’s complaint on this basis. I explain why next.

[92]           A complaint before the Tribunal must fall under an area of daily life protected by the Code. Those areas are publication (s. 7), services (s. 8), purchase of property (s. 9), tenancy (s. 10), employment advertisements (s. 11), wages (s. 12), employment (s. 13), and unions and associations (s. 14).

[93]           In this case, Ms. B filed her complaint against the Criminal Records Review Program in the area of employment, under s. 13 of the Code. The Ministry argues that Ms. B’s complaint does not fall within the scope of employment because the Criminal Records Review Program did not: have an employment-like relationship with her; create or control her employment; set terms or conditions of her employment; and impact her work environment: Application to Dismiss, paras. 59-62. I will address these arguments in turn.

a.      “A person” under s. 13(1)(b) of the Code

[94]           Section 13(1)(b) provides that a “person” must not discriminate against a person regarding employment or any term or condition of employment. A person includes, but is not limited to an employer: Code, s. 1. In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, the Supreme Court of Canada considered the scope of the “person” who must not discriminate in relation to s. 13(1)(b) of the Code. The Court looked to the definition of “person” in s. 1 of the Code and held that it is a broad, non-exhaustive definition, encompassing a “broader range of actors than merely any person with economic authority over the complainant”: para. 34.

[95]           The Court found it significant that the Legislature chose to prohibit employment discrimination by any “person.” The Court reasoned that if the Legislature had intended to only prohibit employment discrimination by employers – or some other narrow class of individuals – it could have easily done so by using a narrower term than “person”: para. 34.

[96]           Given the broad and non-exhaustive definition of a person under sections 1 and 13 of the Code, the Criminal Records Review Board could fall within the scope of a person under the Code.

b.      Regarding employment or any term or condition of employment

[97]           Next, I have considered the scope of “regarding employment or any term or condition of employment” under s. 13(1)(b) of the Code. In Schrenk, the Court considered these words in the context of the whole scheme of the Code, including its purposes – which includes the removal of barriers to economic participation in society: s. 3(a).

[98]           On a contextual analysis, the Court held that s. 13(1)b) of the Code does not restrict who can perpetrate discrimination regarding employment. Rather it defines who can suffer employment discrimination: para. 38 [emphasis is original]. Section 13(1)(b) is not limited to formal employment relationship or to those analogous to employment “by virtue of the economic control and dependency between the parties”: para. 52. Too narrow of a reading of s. 13(1)(b) would leave victims of discrimination without a remedy in many situations: para. 54.

[99]           Given this analysis in Schrenk, I do not agree with the Ministry’s argument that Ms. B was required to have “an employment-like relationship” with the Criminal Records Review Program for the Code’s protection under s. 13 to apply. There is no restriction on who can perpetrate discrimination regarding employment. Neither a formal employment relationship nor even a relationship “analogous to employment” is required under s. 13(1)(b). Too narrow of a reading, without regard for the purposes of the Code, would leave Ms. B without remedy for her allegation that the Criminal Records Review Program posed a barrier to her economic participation in society.

[100]       The Court in Schrenk concluded that the following non-exhaustive factors may inform the scope of s. 13(1)(b): (1) whether the respondent was integral to the complainant’s workplace; (2) whether the conduct at issue occurred in the complainant’s workplace; and (3) whether the complainant’s work performance or work environment was negatively affected: para. 67.

[101]       Applying the Schrenk factors to this case, I find that the alleged conduct by the Criminal Records Review Program could fall within the area of employment, under s. 13(1)(b) of the Code.

[102]       Applying the first Schrenk factor I do not agree with the Ministry’s argument that the Criminal Records Review Program did not create or control Ms. B’s employment or set any terms or conditions of her employment. The Criminal Records Review Program was integral to Ms. B’s ability to gain employment. There is no dispute that while on parole and attempting to support herself, she had three job offers. There is also no dispute that her ability to accept any of those job offers was contingent on the Criminal Records Review Program’s assessment of her risk in those workplaces. The criminal records check was mandatory on her and the employers: Criminal Records Review Act, s. 9. None of those workplaces were permitted to hire Ms. B without a favourable risk assessment by the Criminal Records Review Program: Criminal Records Review Act, s. 11 and 11.1.

[103]       Second the Criminal Records Review Program was only engaged with respect to Ms. B’s employment. The criminal records check is not an optional service; it is a mandatory process for employers, employees, and prospect employees. The Criminal Records Review Program had no role to play outside of Ms. B’s employment prospects.

[104]       Applying the third Schrenk factor, I do not accept the Ministry’s argument that the Criminal Records Review Program’s assessment of Ms. B did not impact her with respect to her “working environment.” Ms. B’s ability to accept three job offers was foreclosed by the Criminal Records Review Program’s risk assessment of her. That is a negative impact on the specific employment prosects she had, and her employability.

[105]       In summary, Ms. B alleges discrimination which could fall within the area of employment under s. 13(1)(b) of the Code. I deny the Ministry’s dismissal application on the basis that her complaint does not allege employment discrimination and is therefore not within the jurisdiction of the Tribunal.

[106]       In summary, I deny the Ministry’s dismissal application on the basis that that the Tribunal does not have jurisdiction or should not exercise its jurisdiction over Ms. B’s complaint. Next, I turn to the Ministry’s alternative argument that the Tribunal should dismiss Ms. B’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c).

C.     Reasonable prospect of success

[107]       Section 27(1)(c) is part of the Tribunal’s gate-keeping function. As part of this gate-keeping function, the Tribunal has discretion to dismiss a complaint, under s. 27(1)(c) if the complaint has no reasonable chance of succeeding at a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176, para. 19.

[108]       The Tribunal does not make findings of fact on a dismissal application, as it would at a hearing. Instead, the Tribunal considers the whole of the evidence to decide whether there is no reasonable prospect that a complaint could be proven, after a full hearing of the evidence: Byelkova v. Fraser Health Authority, 2021 BCSC 1312, para. 24; Francescutti v. Vancouver (City), 2017 BCCA 242, para. 52. The Tribunal bases its decision on the materials filed by the parties; not on what evidence might be given at the hearing: University of British Columbia v. Chan, 2013 BCSC 942, para. 77; Conklin v. University of British Columbia, 2021 BCSC 1569, para. 32.

[109]       If there is no reasonable prospect of a complaint succeeding after a full hearing of the evidence, then it serves no purpose to proceed with the time and expense of a hearing: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49, para. 27.

[110]       The onus is on the applicant to show there is no reasonable prospect a complaint will succeed: Byelkova, para. 27. At this stage, the complainant must show that their allegations are based on more than speculation: Lord, para. 19.

[111]       To prove discrimination at a hearing, Ms. B would have to prove three steps: (1) she had characteristics protected by the Code; (2) she was adversely impacted by the Criminal Records Review Program in the area of employment; and (3) her protected characteristics were a factor in the adverse impact(s): Moore v. British Columbia (Education), 2012 SCC 61, para. 33. If, based on the dismissal application materials, Ms. B has no reasonable chance of proving discrimination, I may dismiss her complaint under s. 27(1)(c) of the Code.

[112]       Even if a complainant has a reasonable prospect of proving discrimination, the Tribunal may still dismiss their complaint, under s. 27(1)(c), if it is reasonably certain that a respondent will establish a defence at the hearing: Purdy v. Douglas College and others, 2016 BCHRT 117, para. 50. If it is reasonably certain that a respondent would prove that their conduct is justified, based on the dismissal application materials, then there is likely no reasonable prospect that the complaint will succeed: Purdy, para. 50.

[113]       In its dismissal application, the Ministry argues that Ms. B has no reasonable prospect of proving that her Indigenous identity was a factor in the Criminal Record Review Board’s assessment of her. Even if she does have a reasonable prospect of proving her Indigeneity as a factor, the Ministry argues that the Criminal Record Review Board’s assessment was justified. I will address these arguments in turn.

Does Ms. B have no reasonable prospect of proving her Indigenous identity was a factor in the Criminal Records Review Board’s assessment?

[114]       The Ministry points to the limited information in Ms. B’s complaint about her Indigenous identity. Other than self-identifying as Indigenous, which is not in dispute, Ms. B’s only reference to her Indigenous identity, is that the Criminal Records Review Board “contributed to the stigmatization that Indigenous ex convicts face through loss of meaningful employment”: Complaint, p. 2.

[115]       The Ministry argues that this not enough information to allege an instance of discrimination, bias, differential treatment, or any disproportional impact resulting from Ms. B’s Indigenous identity. It follows, the Ministry argues, that Ms. B has not identified how her Indigenous identity was a factor in the Criminal Record Review Board’s assessment of her: Application to Dismiss, paras. 73, 74, and 80.

[116]       I acknowledge the Ministry’s argument that Ms. B gave limited information in her complaint about her Indigenous identity. Her complaint is one that could be described as arriving at the Tribunal’s gate “imperfectly brought,” as discussed by the BC Supreme Court in Lord:

Within the human rights process, applicants are vulnerable when filing a complaint about a human rights violation which they believe has occurred. They may not know how to file their complaint in such a way that it will be heard, or in what form evidence is received, believed, or weighed by the Tribunal. Self-represented litigants … face significant barriers in bringing a claim of discrimination: para. 36.

[117]       In Lord, the Court cautioned against winnowing out complaints that are imperfectly brought, and may require more work to comprehend, but likely contain allegations of merit:para. 38. I find that caution applicable here.

[118]       Ms. B filed her complaint as a self-represented party. The evidence before me points to her vulnerability as a person trying to reintegrate into society, while addressing the impacts of spending much of her life in prison, including long periods in solitary confinement. In her interview with the Criminal Records Review Program Investigator, Ms. B said: “I don’t even know how to hug after so many years in isolation”: Deroche Affidavit, Exhibit A, p. 20.

[119]       She filed her complaint at a time when she was adhering to parole conditions, had little to no income, and was focussed on securing employment to support herself. I take from these circumstances that Ms. B faced barriers in filing her complaint at a time when she was self-represented and especially vulnerable. She was vulnerable as a low-income parolee trying to find her footing in society after so many years in prison. As an Indigenous woman, she is a member of a group who experiences persistent patterns of inequality and discrimination. She is vulnerable in the sense that she is vulnerable to those larger forces.

[120]       Within this context, Ms. B’s complaint could be said to be imperfect. She took up only three pages answering the relevant questions in the complaint form in a succinct manner. Within that space she alleges that, in its assessment of her, the Criminal Records Review Program: unfairly labelled her, marginalized her, and stigmatized her as an Indigenous ex-convict: Complaint p. 2. She did not elaborate further on the connection between her Indigenous identity and the Criminal Record Review Board’s assessment of her. In my view, she did not need to for three reasons.

[121]       First, Ms. B’s complaint can only be properly understood within its social context, discussed earlier: Campbell, paras. 105. Such an understanding of the social context may support a finding that a complainant experienced discrimination: para. 105. Here, that social context includes Indigenous-specific discrimination within the criminal justice system, as a long-standing and pressing concern. While Ms. B’s complaint is succinct, there is no question that she is an Indigenous woman, and she alleges that the Criminal Record Review Program unfairly labelled her, marginalized her, and stigmatized her as an Indigenous ex-convict.

[122]       Second, as discussed in Campbell, Ms. B is not required to prove the social context that applies to her case:

Not only is this Tribunal expected to have some expertise in the forces underlying social inequality, but – like a court – it is empowered to take judicial notice of context that reasonable people could not dispute. In the case of Indigenous people, countless authoritative reports and legal decisions establish a context which this Tribunal not only may, but must, bring to bear in complaints alleging discrimination in connection with Indigenous peoples: para. 38 [my emphasis].

[123]       The Tribunal’s analysis in Campbell is directly applicable to Ms. B’s complaint. It is the Tribunal’s obligation to apply its expertise to situate Ms. B’s complaint in social context, and not her obligation to articulate that social context in her complaint.

[124]       Third, especially in its gate-keeping stages, the Tribunal must be sensitive to the complexity, difficulty, and legal nuance required to show a connection between a protected characteristic and an adverse impact: Lord, para. 41. In Expanding Our Vision: Cultural Equality & Indigenous Peoples Human Rights (2020), Ardith Walpetko We’dalx Walkem, KC (now Justice Walkem) recounted the experiences of Indigenous people accessing the Tribunal:

  Respondents observed that the [Tribunal’s] gatekeeper function has operated to exclude Indigenous complaints. Discrimination based on race is insidious and rarely clearly stated. Finding language to identify and “prove it” to the degree required for a complaint to proceed may be an impossible task for many applicants. Consequently, many Indigenous complaints are rejected at the preliminary screening stage, reflecting a difficulty in framing their complaint, rather than because they did not experience real discrimination: p. 36.

[125]       The Tribunal has recently recognized the difficulties Indigenous complainants may face in framing their complaint, by posting information for Indigenous people, titled “How to describe discrimination in a complaint”: https://www.bchrt.bc.ca/indigenous/discrimination. Under “connection” at this website link, the Tribunal recognizes that in most cases the connection between Indigenous identity and an adverse impact is “subtle.” The obligation on a complainant is to describe how what happened suggests a connection to their Indigenous identity.

[126]       Ultimately, I am not convinced by the succinctness of Ms. B’s complaint, or on the evidence before me, that Ms. B has no reasonable prospect of proving a connection between her Indigenous identity and the negative impacts of her criminal records check. I explain that conclusion next.

[127]       As discussed above, to prove her complaint of discrimination, Ms. B must prove that her Indigenous identity was a factor in the Criminal Records Review Board’s risk assessment of her. In other words, she must show a connection between the assessment and her Indigenous identity. At this stage, the burden is on the Ministry to show that Ms. B has no reasonable prospect of proving that connection.

[128]       There are two main types of connection. First a rule or action can affect a person based on their protected characteristic. It can include: a rule or action that perpetuates discrimination or disadvantage; or a failure to account for the needs or circumstances of a person with protected characteristics. For example, in Campbell, the Tribunal held that police conduct towards as an Indigenous mother was discriminatory, in part, because the conduct had the effect of perpetuating historical disadvantage: para. 116. In In RR BCHRT the Tribunal held that a child protection agency’s conduct towards RR was discriminatory, in part because the agency did not account for RR’s needs and circumstances in connection with her Indigenous identity:  paras. 341 and 371.

[129]       Second, a respondent may consider a complainant’s protected characteristic in their conduct. This includes differential treatment, negative comments, or stereotyping about people with that protected characteristic. With respect to differential treatment, Indigenous people may be singled out for harsher treatment than others: Campbell, paras. 132-140; Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302, paras. 483-486.

[130]       Indigenous people may be subject to negative comments connected with their Indigenous identity: Smith v. Mohan (No. 2), 2020 BCHRT 52, paras. 190-196; The Applicant v. Independent Investigations Office of British Columbia (No. 2), 2024 BCHRT 204, paras. 118-127.

[131]       Indigenous people may also be subject to stereotypes in connection with their Indigenous identity: Campbell, paras. 127-128; The Applicant, paras. 119-125, 237-239; RR BCHRT, paras. 348-361.

[132]       Ms. B’s complaint, though succinct, alleges both types of connections. She alleges that the Criminal Record Review Program’s assessment of her marginalized her and stigmatized her as an Indigenous ex-convict: Complaint, p. 2. In other words, she alleges that assessment had the effect of perpetuating her disadvantage as an Indigenous person with a criminal record. Stigma may also be linked to or rooted in stereotypes: Dubé v. CTS Canadian Career College, 2010 HRTO 713, para. 56; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., 2003 SCC 68, para. 32.

[133]       Ms. B also alleges that the Criminal Records Review Program disregarded information relevant to assessing her risk, including updated psychiatric and psychological assessments, and information she provided by email: Complaint, p. 2. In other words, she alleges that in its assessment, the Criminal Record Review Program did not account for her particular circumstances or needs, as an Indigenous person.

[134]       Ms. B alleges that the Criminal Records Review Program unfairly labelled her as a risk to children and vulnerable adults in its assessment: Complaint, 2. A propensity within Canada to label Indigenous people as inherently dangerous, suspicious, threatening, prone to criminality, or less credible has been widely recognized: Campbell, paras. 127-128; Radek, paras. 494 and 548; RR BCHRT, paras. 352-353 and 359; The Applicant, paras. 168 and 237; and R. v. Williams, 1998 CanLII 782 (SCC), para. 58; McKay v. Toronto Police Services Board, 2011 HRTO 499, paras. 161. Such labels are a form of pervasive stereotypes about Indigenous people: Campbell, para. 127.

[135]       As noted, the Program Investigator had reviewed all relevant details and had interviewed Ms. B and her parole officer. He recommended a determination that Ms. B does not present a risk to children and/or vulnerable adults. The Deputy Registrar did not accept that recommendation. This, in itself, raises the question of what explains the Deputy Registrar’s disinclination to accept the recommendation. It would be open to the Tribunal member hearing the complaint to find that Ms. B’s Indigenous identity was at least a factor in the negative risk assessment.

[136]       In her determination, the Deputy Registrar pointed, in particular, to Ms. B’s dangerous offender designation and history of “significant violence and use of weapons.” Both of these considerations could fully explain the departure from the Program Investigator’s recommendation. I cannot conclude, however, that this leaves no room for a finding of discrimination at a hearing, especially when considering the factors the Deputy Registrar must consider when making a risk assessment. The Deputy Registrar must consider: the circumstances of the offence, including the age of the individual at the time of the offence; the existence of any extenuating circumstances; the time elapsed since the occurrence of the offence or alleged offence; the subsequent actions of the individual; the likelihood of the individual repeating a similar kind of behaviour; and any attempts at rehabilitation: Criminal Records Review Act, s. 4(3)(b) and (c).

[137]       Here, the Deputy Registrar’s determination focuses on Ms. B’s dangerous offender designation and history of “significant violence and use of weapons.” The determination does not appear to address subsequent information in the Program Investigator’s report with respect to extenuating circumstances leading up to and at the time of those offences, including Ms. B’s age at the time of the offences, the time elapsed since Ms. B’s offences, her subsequent actions, the likelihood of her repeating the same behaviour, and her attempts at rehabilitation, as follows:

a.      Ms. B’s most serious offences, the hostage-taking, only occurred in correctional settings, followed by the apprehension of her child. In 2017, Dr. L described the apprehension of Ms. B’s child as follows: “All the abusive episodes of her life coalesced into a global and overwhelming sense of being threatened and alone.”

b.      The most serious offences last occurred in 2007 when Ms. B was in her late twenties. The dangerous offender designation was made in 2011, based on Ms. B’s history of offences from 2010 and prior.

c.       Starting in 2013, Ms. B’s spent at least 140 hours in psychotherapy in an effort to address her past “crime cycle” and the factors contributing to it.

d.      The 2013 psychological therapy report identified Ms. B’s progress as “excellent.”

e.      Ms. B’s completed intervention programs in 2015 and 2016, where she demonstrated strategies to deal with issues respectfully and without aggression.

f.        The November 1, 2017 Correctional Plan indicating that: Ms. B accepted responsibility for offences, “displayed genuine remorse and victim empathy”, and “could function in the community with minimal or no intervention.”

g.       The November 10, 2017 psychiatric memo by Dr. L reporting the impact that multiple losses, unaddressed trauma, vulnerabilities, the State’s apprehension of her child, and long periods of solitary confinement had on Ms. B.

h.      Dr. L also reported in the November 10, 2017 memo that an understanding of Ms. B’s circumstances, including her vulnerabilities, was key to understanding the offences she committed. He further reported Ms. B’s “substantial progress,” consistent and sustained change in her behaviour, and the factors linked to Ms. B as a risk had “improved significantly” and “attenuated with treatment.”

i.        Her parole officer’s assessment and a 2018 psychiatric memo describing her release on parole transition as “smooth and uneventful”, and repeated renewals of her parole as an indicator of her “level of functioning and perceived risk.”

Deroche Affidavit, Exhibit A.

[138]       It is not clear to me how or whether the Deputy Registrar considered this information about Ms. B, as part of the requirement to consider: the circumstances of the offence, Ms. B’s age at the time of the offences; any extenuating circumstances; the time elapsed since the offences occurred; Ms. B’s subsequent actions, the likelihood she would repeat similar behaviour; and her rehabilitation attempts.

[139]       The information that was before the Deputy Registrar about Ms. B’s circumstances mirror, in many respects, the social context discussed earlier, and the built-in headwinds that contribute to the disadvantage of Indigenous people, especially Indigenous women, within the criminal justice system.

[140]       Without an explanation for the Deputy Registrar’s focus on Ms. B’s dangerous offender designation and history of offences, lack of engagement with the other considerations that applied to Ms. B, and departure from the Investigator’s recommendation, the Tribunal could infer that Ms. B’s Indigenous identity was a factor in the Deputy Registrar’s risk assessment. For example, the Tribunal could find that the Deputy Registrar’s determination did not account for Ms. B’s needs or circumstances and perpetuated her disadvantage as an Indigenous woman: Campbell, para. 116; RR BCHRT, paras. 341 and 371; assessed her more harshly than non-Indigenous people: Campbell, paras. 132-140; Radek, paras. 483-486; and/or that she was subject to stereotypes: Campbell, paras. 127-128; The Applicant, paras. 119-125, 237-239; RR BCHRT, paras. 348-361. Situating Ms. B’s complaint within a proper understanding of the social context may help to explain the connection between Ms. B’s Indigeneity and the Deputy Registrar’s assessment of her: Campbell, para. 105; RR BCCA, paras. 146-155.

[141]       On reconsideration, the Registrar also relied on Ms. B’s “significant history of violent offences,” and dangerous offender designation to deem her a risk to children and vulnerable adults. The Registrar concluded that Ms. B’s “behaviour and attitudes” leading up to the dangerous offender application were not “sufficiently resolved or distanced as to enable work with children or vulnerable adults as contemplated under the [Criminal Records Review Act]”: Deroche Affidavit, Exhibit C. This conclusion, however, also does not grapple with the other considerations that applied to Ms. B, and departs from the Investigator’s recommendation. The Tribunal could also infer that Ms. B’s Indigeneity was a factor in the Registrar’s assessment of her.

[142]       In saying all of this, I do not suggest that the Tribunal would reach these determinations at a hearing of the complaint. Rather, I do not accept that there is no reasonable prospect of it doing so in the circumstances of this case.

[143]        I deny the Ministry’s dismissal application on the basis that Ms. B has no reasonable prospect of proving a connection between the Criminal Record Review Board’s assessments of her and her Indigeneity.

Is the Ministry reasonably certain to prove that Ms. B’s criminal record was related to her prospective employment?

[144]       Alternatively, the Ministry argues that the Criminal Record Review Board’s assessments of Ms. B’s criminal convictions were justified. The Ministry’s position is based on the wording set out in s. 13(1) of the Code with respect to criminal conviction. Section 13(1) prohibits discrimination based on a person’s criminal conviction, but only if that conviction is unrelated to the employment or intended employment of that person.

[145]       The Ministry argues that Ms. B’s convictions, and her dangerous offender designation, stemming from those convictions, are related to the employment she applied to and had offers for. On this basis, the Ministry argues that the Criminal Record Review Board’s assessment of those convictions was justified. If the Ministry is reasonably certain to prove that Ms. B’s convictions are related to her employment, I may dismiss her complaint as having no reasonable prospect of success: Code, s. 27(1)(c); Purdy, para. 50; Pater v. Strata Plan VIS 4136, 2018 BCHRT 177, para. 39.

a.      Criminal conviction – principles and factors

[146]       Criminal conviction is a protected characteristic under the Code in order to protect employees or prospective employees from being “stigmatized indefinitely” based on convictions unrelated to their employment: British Columbia Human Rights Commission v. British Columbia Human Rights Tribunal, 1999 CanLII 6347 (BC SC); affirmed in B.C. Human Rights Commission v. B.C. Human Rights Tribunal, 2000 BCCA 584. Such stigma may run counter to the Code’s purpose of furthering equality by removing barriers to full and free participation in economic life: s. 3; Purewall v. ICBC, 2011 BCHRT 43, para. 21.

[147]       The Supreme Court of Canada and the Tribunal have recognized that work is one of the most fundamental aspects of a person’s life – providing the ability to support oneself and contribute to society. The ability to work is an essential aspect of a person’s identity, self-worth, dignity, and well-being: Wallace v. United Grain Growers Ltd., [1997] 3 SCR 701, para. 93, citing Reference Re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 SCR 313; Del Monte v. Kwantlen Polytechnic University, 2024 BCHRT 111, para. 47; Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137, para. 129; LL v. DM and another, 2020 BCHRT 129, para. 220.

[148]       Against this backdrop, I assess whether the Ministry is reasonably certain to prove that Ms. B’s criminal convictions were related to her employment offers. To make this assessment, the Tribunal considers the following factors:

Whether a conviction relates to the employment of a person, depends on all of the circumstances of the individual case, including:

1.      Does the behaviour for which the charge was laid, if repeated, pose any threat to the employer’s ability to carry on its business safely and efficiently?

2.      What were the circumstances of the charge, and the particulars of the offence involved, e.g. how old was the individual when the events in question occurred, were there any extenuating circumstances?

3.      How much time has elapsed between the charge and the employment decision? What has the individual done during that period of time? Have they shown any tendencies to repeat the kind of behaviour for which they were charged? Have they shown a firm intention to rehabilitate themselves?

In dealing with an employee with a criminal record, an employer must consider these factors to decide whether an employee’s criminal record relates to the employee’s job. The Tribunal must consider these same factors in reviewing an employer’s conduct towards the employee.

Woodward Stores Ltd. v. McCartney, 1982 CanLII 4851 (BC HRT) [Woodward BCHRT], paras. 76-77; affirmed in Woodward Stores Ltd. v. McCartney, 1983 CanLII 4691 (BC SC) [Woodward BCSC], paras. 7-9 and 17.7.

[149]       In upholding Woodward BCHRT, the BC Supreme Court held that the protection of criminal conviction under the Code properly encourages the rehabilitation of individuals with criminal convictions: Woodward BCSC, para. 11. I turn now to apply these three factors to assess whether the Ministry is reasonably certain to prove that Ms. B’s criminal convictions were related to her employment offers.

b.      Applying the criminal conviction factors to Ms. B’s complaint

[150]       With respect to the first factor, Ms. B was convicted of assault, assault with a weapon, assault causing bodily harm, and hostage-taking. I accept that the seriousness of these offences was enough to prompt the Criminal Record Review Board’s assessment of whether she presented a risk of physical abuse to children and vulnerable adults she may work with at the prospective workplaces.

[151]       Indeed, the Criminal Records Review Program must assess whether an individual presents a risk of physical or sexual abuse to children or a risk of physical, sexual, or financial abuse to vulnerable adults if they have been convicted of relevant or specified offences, as established by the Criminal Records Review Act, sections 1 and 4(2). The materials before me indicate that Ms. B was convicted of relevant and specified offences.

[152]       The nature of some of Ms. B’s convictions, in the context of employment working with children and vulnerable adults, weighs in favour of a finding that her convictions were related to her prospective employment.

[153]       On the second factor, the evidence before me about Ms. B’s age at the time of the offences, the circumstances of the offences, and any extenuating circumstances indicates that:  

a.      Ms. B committed the most serious offences as a young adult, after experiencing extraordinary adversities and unaddressed traumas as a child and youth, including, for example: the murder of her mother by her father; intergenerational impacts of her grandmother and primary caregiver attending residential school; her removal from her grandmother’s care by the State; her foster care placement in white communities where she experienced racism; and her separation from her family and community: R v. B 2011, paras. 78-82, 86, 88, 183; Deroche Affidavit, Exhibit A, p. 9-10.

b.      The offences occurred during Ms. B’s incarceration at seven different federal prisons across the country, and while she spent long periods of time in isolation/segregation: R v. B 2011, paras. 8, 29, 46, 49, 53, 56; Deroche Affidavit, Exhibit A, p. 9-10.

c.       Almost all of the offences occurred after the State apprehended her own child from her care: Deroche Affidavit, Exhibit A, p. 2-4.

[154]       The evidence about Ms. B’s age at the time of the offences, the circumstances, and extenuating circumstances of those events, weighs against a finding that the convictions were related to her prospective employment.

[155]       On the third factor, the evidence before me shows that Ms. B was last charged with the offence of uttering threats in January 2010. The Deputy Registrar of the Criminal Records Review Program made a determination with respect to Ms. B’s criminal record on December 11, 2019. The Registrar made a final determination about Ms. B’s criminal record on May 20, 2021. Therefore, the shortest amount of time between Ms. B’s last charge and the Criminal Record Review Program’s decision of her is almost 10 years. This time gap weighs against a finding that a conviction is related to her employment: Woodward BCHRT, paras. 78.

[156]       Also on the third factor, I have considerable evidence before me of Ms. B’s efforts to address her behaviour in connection with the charges; and rehabilitate herself. The evidence about those efforts include:

a.      Her commitment to therapy since May, 2013 to address issues such as substance abuse, crime cycle, relationships, childhood influences, anger, and other emotions.

b.      Her completion of a 36-session Moderate Intensity Women’s Module Intervention Program in June 2015 to address her emotions and develop strategies to deal with issues respectfully and without aggression.

c.       In December, 2015, she was moved from maximum security to medium security given her progress, through programming, on her risk factors.

d.      In January 2016, she completed the Aboriginal Women Offender Moderate Intensity Program, and in October, 2016 she completed the Aboriginal Women Offender High Intensity Program.

e.      A 2017 psychological assessment report, in which Ms. B reflected that looking back, was like looking at a different person. She expressed regret for “every single act of violence” she did to others.

f.        By November 2017, she had completed approximately 140 hours of therapy with Dr. L, which addressed, for example, dealing with consequences of trauma, underlying vulnerabilities, and specific developmental events contributing to behavioural problems. In Dr. L’s psychiatric memo about Ms. B’s course of therapy, he reported that she had made “substantial progress” and that factors linked to the risk had “improved significantly.” He also reported that over the past few years she had “demonstrated a consistent and sustained change in her behaviour.” He recommended at that time that “active steps be taken to rehabilitate her in the community.”

g.       As a result of her ongoing progress, in May 2018, Ms. B was released on parole to a healing lodge. She was initially released on parole for two months. Her parole was repeatedly renewed after that in six-month increments. Her parole officer suggested that the parole renewals indicated Ms. B’s “level of functioning and perceived risk”: Exhibit A, p. 18. A June 13, 2018 psychiatric memo described her transition as “smooth and uneventful” and that she was responding well to parole and life in the community.

h.      A November 1, 2018 Correctional Plan stated that Ms. B’s positive response to her community reintegration could not be ignored, that her short-term progress was “tremendous” and that she could function in the community with minimal or no intervention: Exhibit A, p. 13.

i.        By 2018 she had five positive reference letters, including from a senator. The Senator said she had known Ms. B for more than two decades and described Ms. B as a mentor for women in and out if prison.

j.        Ms. B has not incurred further charges since January 2010.

Deroche Affidavit, Exhibit A.

[157]       The evidence points to Ms. B not showing any tendencies to repeat the kind of behaviour for which she was charged. It shows not only Ms. B’s “firm intention” to rehabilitate herself, but her remarkable efforts to do so. The evidence with respect to the third factor weighs against a finding that Ms. B’s convictions were related to her prospective employment.

[158]       I have also assessed the factors with respect to the specific circumstances of this case: An Indigenous woman, with a criminal record, within a social context in which Indigenous people, especially Indigenous women, are criminalized at alarming rates, and experience some of the harshest effects of that criminalization.

[159]       On balance, the evidence before me weighs against finding that Ms. B’s convictions were related to her respective employment. As a result, it is not reasonably certain to me that the Criminal Record Review Program will justify its risk assessment of Ms. B on the basis that the criminal convictions were related to her prospective employment. I decline to dismiss Ms. B’s complaint on this basis.

Is the Criminal Records Review Program reasonably certain to justify its assessments of Ms. B?

[160]       Last, the Ministry argues the Criminal Records Review Program could not have assessed Ms. B differently without facing undue hardship. To do so, the Ministry argues, would require the Criminal Records Review Program to contradict the Criminal Records Review Act, and the safety considerations set out in that statute: Application to Dismiss, paras. 92-96.

[161]       To justify the Criminal Record Review Program’s assessment of Ms. B, the Ministry would need to prove that the Criminal Records Review Program:

a.    was acting for a legitimate purpose, rationally connected to its function of performing criminal record checks;

b.   was applying standards adopted in good faith in an honest belief they were necessary to fulfill that legitimate purpose; and

c.    the standards were reasonably necessary to accomplish its purpose, in the sense that the Criminal Record Review Program could not fulfill its purpose while accommodating Ms. B without facing undue hardship:

British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3 [Meiorin], para. 54.

[162]       Ms. B does not appear to dispute the first two justification steps, and I am prepared to accept, for the purpose of this decision, that the Ministry is reasonably certain to prove the first two steps.

[163]       At issue in this complaint is the Criminal Record Review Board’s assessment of Ms. B as presenting a risk of physical abuse to children and vulnerable adults. I accept that in assessing Ms. B, the Criminal Records Review Program was engaging in its legitimate purpose of protecting children and vulnerable adults within the scope of the Criminal Records Review Act. I accept this purpose is rationally connected to the Criminal Record Review Board’s function of conducting criminal record checks in the vulnerable sector.

[164]       On the second step, I also accept, for the purpose of this decision, that the Criminal Records Review Program assessed Ms. B’s risk to children and vulnerable adults in an honest and good faith belief that it was necessary to protect children and vulnerable adults.

[165]       With respect to the third step, accommodation is not a one-size-fits-all process. Substantive equality requires more: Ewert, para. 54; Meiorin, para. 41; Fraser v. Canada (Attorney General), [2020] 3 SCR 113, para. 47; Miller v. The Union of British Columbia Performers, 2022 BCCA 358, paras. 57-58. The Criminal Records Review Program must show that in applying the Criminal Records Review Act to Ms. B, it accounted for her distinct experiences as an individual, and an Indigenous woman, as far as reasonably possible: Meiorin, para. 68.

[166]       This is especially the case in this context: a context of systemic discrimination of Indigenous people in all aspects of the criminal justice system: Sharma, para. 114, citing Ewert, para. 57; and the requirement that all participants in the criminal justice system take reasonable steps to address that systemic discrimination head-on: Barton, paras. 200 and 204.

[167]       The Criminal Records Review Program must also show that it could not avoid the impact of its assessment on Ms. B, because it was reasonably necessary to protect children and vulnerable adults: Moore, para. 49; RR BCCA, para. 164. I will apply the third step requirements in turn.

a.      Is the Ministry reasonably certain to prove that the Criminal Records Review Program accounted for Ms. B’s distinct experiences as far as reasonably possible?

[168]       First, I am not convinced that the Criminal Records Review Program is reasonably certain to prove that it accounted for Ms. B’s distinct experiences as an individual, and Indigenous woman with a criminal record as far as reasonably possible, in its assessment of her.

[169]       While I do not have written reasons for the Deputy Registrar’s determination that Ms. B posed a physical risk to children and adults, I do have the Deputy Registrar’s notes, dated the same day as her determination, December 11, 2019. In the notes, the Deputy Registrar states:

Gladue principles would have or ought to have been applied in sentencing if all offences occurring after the Gladue decision was rendered in 1999, [and] it is not required or necessarily appropriate to apply these principles when considering whether an applicant presents a risk to children / vulnerable adults. I firmly believe that the courts should take into account the history of an offender and consider all available alternatives to incarceration, which I believe is at the heart of the Gladue decision. I also believe that the same history and experiences can result in behaviors which if repeated pose a risk to children in vulnerable adults: Deroche Affidavit, Exhibit B, p. 25.

[170]       The Deputy Registrar was referencing R. v. Gladue, [1999] 1 SCR 688 [Gladue]. In this case, the Supreme Court of Canada held that under the Criminal Code, sentencing judges must pay particular attention to the unique circumstances of Indigenous offenders. The purpose of this duty is to recognize and ameliorate the overrepresentation of Indigenous people in prisons and ameliorate the impact of systemic discrimination in the criminal justice system on Indigenous people: paras. 87 and 93.

[171]       This passage is the only indication in the Deputy Registrar’s notes that Ms. B is an Indigenous woman. On one hand, this reference appears to reject the relevancy of Ms. B’s distinct experiences as an Indigenous woman. On the other hand, the reference suggests that Ms. B’s history and experiences, in connection with her Indigenous identity, may in fact elevate the risk she poses to children and vulnerable adults.

[172]       The point of paying particular attention to an Indigenous person’s history and experiences, in a Gladue framework, is to account for the distinct needs, experiences, and perspectives of Indigenous people, and ameliorate systemic discrimination as a contributing factor to the excessive imprisonment of Indigenous people: Gladue, paras. 61-64, 68 and 73. Gladue principles treat Indigenous offenders fairly by accounting for their difference for ameliorative purposes: Gladue, para. 87. Relying on an Indigenous person’s history and experience, per Gladue, for the purpose of viewing their behaviour in a worse light – that is, riskier – cannot be right.

[173]       In any event, the Deputy Registrar’s limited reference to and application of the Gladue principles falls far short of showing with reasonable certainty that she accounted for Ms. B’s distinct experiences as an individual, and an Indigenous woman, as far as reasonably possible, as required under human rights law.

[174]       I have also considered the Registrar’s reconsideration decision, which confirmed the Deputy Registrar’s determination that Ms. B posed a physical risk to children and vulnerable adults. The Registrar states that his reconsideration decision was made “with awareness of Ms. B’s traumatic lived experience as an Indigenous person and from a perspective of deep respect and cultural humility”: Deroche Affidavit, Exhibit C, p. 32.

[175]       This statement is entirely consistent with human rights law. However, the Registrar does not explain how Ms. B’s lived experience as an Indigenous woman factored into confirming the risk she posed. Like the Deputy Registrar, the Registrar appears to make a limited reference to Ms. B’s Indigeneity but then omits to account for her Indigeneity in assessing her risk to children and vulnerable adults. For example, Ms. B’s references state that it is because of her lived experiences as an Indigenous woman within and paroled from the prison system, that she was a capable and “one of a kind” advocate, peer, and mentor for “her sisters” in and out prison: Deroche Affidavit, Exhibit A, 20-22.

[176]       The Registrar’s limited reference to Ms. B’s Indigeneity also falls short of showing, with reasonable certainty, he accounted for Ms. B’s distinct experiences as an individual, and an Indigenous woman, as far as reasonably possible, as required under human rights law.

b.      Is the Ministry reasonably certain to prove that the Criminal Record Review Program’s determinations were reasonably necessary to protect children and vulnerable adults?

[177]       Second, I am not convinced that the Ministry is reasonably certain to prove that the determinations of the Deputy Registrar and Registrar were reasonably necessary.

[178]       As a starting point, the determinations were a departure from the recommendation of the Criminal Record Review Program’s own investigator. The Deputy Registrar tasked the Investigator to review Ms. B’s application and produce a report “to determine whether she presented a risk of physical or sexual abuse to children and/or a risk of physical, sexual or financial abuse to vulnerable adults”: Dismissal Application, para. 23. After taking up this task, the Investigator recommended that the Deputy Registrar make the determination that Ms. B does not present a risk of physical abuse to children or adults: para. 25.

[179]       Because there are no written reasons for the Deputy Registrar’s determination of Ms. B’s risk, there is a gap in the evidence to show the basis for the Deputy Registrar’s departure from the Investigator’s recommendation. The Ministry has not otherwise explained why it was reasonably necessary for the Deputy Registrar and Registrar to depart from the Investigator’s recommendation.

[180]       The Ministry argues that the Deputy Registrar and Registrar must follow the criteria set out in the Criminal Records Review Act to assess risk but has not explained how the Investigator’s recommendation would have been inconsistent with that criteria. Presumably, the Deputy Registrar relies on the Investigator to provide the information necessary to apply the Criminal Records Review Act criteria to the specific circumstances of each case. Again, the Ministry has not explained the basis for the Deputy Registrar’s and Registrar’s departure from Investigator’s recommendation, or how their application of the Criminal Records Review Act criteria meant it was “reasonably necessary” to assess Ms. B as they did to protect children and vulnerable adults.

[181]       As discussed earlier, in the absence of an explanation, the Tribunal could find that Ms. B’s protected characteristic(s) was a factor in the Deputy Registrar’s or Registrar’s risk assessments of her. If the Tribunal determined that the assessments were not based on Ms. B’s actual risk, but stereotypes or assumptions about her protected characteristic(s), for example, those assessments could not be justified as reasonably necessary: RR BCHRT, para. 303, upheld in RR BCCA, paras. 165-168.The Criminal Record Review Board’s objective of protecting children and vulnerable adults from the risk of physical harm, is in no way advanced by an assessment based on such stereotypes or assumptions: RR BCCA, paras. 165-168.

[182]       Again, I am not concluding that the Tribunal would reach these determinations at a hearing. All I have decided is that based on its dismissal application, and the evidence before me, the Ministry is not reasonably certain to show that the Criminal Records Review Program accommodated Ms. B to the point of undue hardship in its risk assessments of her.

IV    ORDER AND CONCLUSION

[183]       I deny the Ministry’s application to dismiss Ms. B’s complaint under s. 27(1)(a) and (c) of the Code. The Tribunal case manager assigned to this case will contact the parties about the options and deadlines that flow from this decision.

Amber Prince

Tribunal Member