There has been increasing scrutiny of the fairness of registration requirements based on the criminal record of applicants. To address that concern, many regulators conduct an individualized, case-by-case, analysis of whether an applicant’s criminal record remains relevant to their suitability to practise the profession.
A recent Ontario decision highlights the viability of maintaining a criminal record requirement for registration. In Thibault and Ramsay v. Attorney General of Ontario, 2025 ONSC 647 (CanLII), two long-time tow truck drivers were excluded from certification (effectively preventing them from continuing to work in the industry) because of a legislative overhaul to their regulatory regime. The changes were instigated because of the violence and coercion associated with the sector. The new scheme prevented tow truck drivers from being certified if they had a lifetime weapons prohibition imposed under the Criminal Code. The weapons bans for these two drivers resulted from criminal convictions that occurred decades ago. The convictions did not involve the use of firearms. The two drivers had clean records (both criminally and as tow truck drivers) since then. The drivers challenged the validity of the prohibition. Their argument was stronger than that made regarding similar provisions for many other regulators because there was no individualized, case-by-case, analysis of their suitability.
The Court upheld the validity of the impugned provision. The Court applied the recently revised test for assessing the validity of subordinate legislation (in this case a regulation) in Auer v. Auer, 2024 SCC 36 (CanLII). The issue was not the reasonableness of the actual provision, rather the Court assessed the reasonableness of the interpretation of the regulation. It was not unreasonable for the maker of the regulation to view some criminal histories as being relevant to the safety of the public in the tow truck industry. It was not for the Court to assess the wisdom of the specific policy choice made by the government, especially where it was clear that it had turned its mind to the issue of relying on certain types of criminal histories to preclude certification.
The Court also found that the applicants had not provided sufficient evidence for it to make a finding that “criminal history” was an analogous ground (e.g., race, national or ethnic origin, colour, religion, sex, age or mental or physical disability) protected by the right to equality found in s. 15 of the Canadian Charter of Rights and Freedoms. Similarly, the Court also found that exclusion from a profession or occupation was not a cruel and unusual treatment or punishment contrary to s. 12 of the Charter.
Where regulators turn their mind to the relevance of the criminal history of an applicant for registration when drafting registration requirements, courts are reluctant to view such requirements as invalid.