Will I Have a Criminal Record in Canada?
The answer is: "You probably already have a criminal record in Canada and the United States."
It used to be that only a person who had a record of a conviction was considered to have a criminal record. If you were found guilty of a criminal offence, the judge would enter a conviction and from then on you had a criminal record. If you were acquitted or the Crown withdrew or stayed the charge you were presumed innocent and nobody would accuse you of having a criminal record.
There were few places where the record was stored. The original conviction would be endorsed by the judge on the Court paperwork - the information or indictment. These were (and continue to be) public records but most people, employers, and media would not know where to look unless they had a specific date and details.
A conviction would last forever unless you obtained a pardon. After a pardon you would be deemed not to have been convicted.
In the 1960's Parliament set up an alternative disposition called a discharge. If a judge thought it was appropriate for you and the community and the offence was a minor one (eg. shoplift or possession of marijuana) he or she could simply find you guilty without recording a conviction. If there was a probation order attached it was called a conditional discharge and if there was no sentence but the finding of guilt itself it was called an absolute discharge. There was never any need for a pardon because you weren't convicted. If an employer or a government asked you if you had ever been convicted you could truthfully say no. On a subsequent offence Courts were careful not to consider the previous discharge as an aggravating factor because there was no previous conviction. They would however consider the previous discharge in refusing to give a second discharge.
In 1984 Parliament extended a similar discharge system in Youth Court. Persons found guilty in Youth Court were sentenced upon the finding of guilt and no conviction was entered. There were provisions in the Young Offenders Act limiting what use could be made of these records.
Local police services for a long time have been keeping local records of photos, fingerprints, occurrence reports, court results, records of withdrawals, stays, findings of guilt, convictions, sentences, bail and probation conditions. This same information is shared with the RCMP who in turn share it with police services, governments, and border authorities across North America. These records are expanding all the time and don't just include the historical criminal record of conviction.
With the advent of computerized databases information stored becomes more detailed and more easily available everywhere. It seems that if you spit on the floor at school or buy alcohol at a liquor store somebody keeps a record. With the hiring of more and more police officers, previously confidential school records are being studied and recorded for police use. We live in an era when store owners can scan the magnetic stripe on the back of your driver's license and pass the information on to the government.
More and more it seems that everyone has a criminal record because the police have everyone's name somewhere, even if you only got a warning, or diversion, or you were a witness or complainant.
Government job and license applications in Ontario now sometimes require that people disclose absolute and conditional discharges and not just convictions. Police recruits aren't just asked if they've ever been convicted of drunk driving, they're asked if they've ever been arrested or had to blow into a roadside screening device., If you're applying for a Life Insurance License or a Funeral Director's license be prepared to disclose findings of guilt without conviction. If you volunteer at a school you may be asked for a criminal records check and there isn't any clear answer as to what will be included.
My experience is that it doesn't matter what the Young Offenders Act says. If the police have ever given you a warning for stealing a chocolate bar at age 12 fifteen years ago you'd better disclose it on your application to join the police auxiliary. Otherwise they'll reject you for lying. If the Crown withdrew its Youth Court case against you two years ago and your lawyer got a letter from the police service one year later saying the record had been purged, don't be surprised when it's used against you on a search warrant application next year. It is unlikely that an anonymous police officer will be prosecuted for disclosing such information internally in violation of the Young Offenders Act.
I've had possession of marijuana clients turned back at the border even though they hadn't been found guilty yet. If you admit to even smoking marihuana at some point in your life you may be rejected. So much for the presumption of innocence guaranteed in the Canadian Charter of Rights and Freedoms.
It's still better to have a record of a discharge instead of conviction. A record of diversion, alternative measures, or peace bond is better than either. An acquittal or withdrawal by the Crown is the best of all. Don't be surprised if any of these show up on your "criminal record" fifteen years from now. U.S. authorities sometimes treat a peace bond the same as a conviction.
It is always worthwhile to have your lawyer write letters to the local police service and the RCMP sometime after conviction, finding of guilt, or acquittal in an attempt to have them purge the records. Your lawyer will advise you as to how long to wait. Three's no guarantee that the police will comply or tell you the truth if they reply.
I regret having to sound so cynical about this subject but unfortunately things aren't the way they should be. I speak from experience.
You already have a record. Do your best to minimize that record in the future.
Stephen R. Biss, Barrister & Solicitor
470 Hensall Circle, Suite 303
905-273-3322 or 1-877-273-3322
Advertisement. Any legal opinions expressed at this site relate to the Province of Ontario, Canada only. If you reside or carry on business in any other jurisdiction please consult a lawyer, solicitor, or attorney in your own jurisdiction. WARNING: All information contained herein is provided for the purpose of providing basic information only and should not be construed as formal legal advice. The author disclaims any and all liability resulting from reliance upon such information. You are strongly encouraged to seek and retain professional legal advice before relying upon any of the information contained herein.