You can never escape a criminal record

All the media got it wrong: Svend Robinson and Todd Bertuzzi, along with thousands of unlucky pot-smokers, will carry criminal records, regardless of their conditional discharges.

by Mike Bryan

It is now considered gospel in Canada that when offenders are granted an absolute or conditional discharge, they don't receive a criminal record. That belief often surfaces in the media when prominent members of the community face criminal charges.

The cases of former MP Svend Robinson, found guilty earlier this year of stealing a valuable ring, and NHL hockey star Todd Bertuzzi, found guilty in December of assaulting on-ice opponent Steven Moore, are good examples. After the courts granted them a conditional discharge, every print, radio and television outlet in the country announced that they wouldn't have a criminal record.

The simple truth about discharges is that they don't avoid a criminal record and never have. Every person who's ever been granted a discharge has a criminal record and cannot honestly or legally deny it.

To understand how something so straightforward could be so misunderstood by so many we have to be clear from the start about the meaning of the term "criminal record." What is it? Who can store and disseminate it? What are the consequences of having one?

The term "criminal record" has no specific legal meaning in Canada—it isn't defined in any statute or regulation. It is most commonly understood as documentation of a person's criminal conviction that can have damaging consequences long after an offender serves his or her sentence. Law enforcement agencies, prosecutors, defense attorneys, courts, probation and parole offices all maintain such documentation. So do private organizations such as newspapers, credit firms, bonding companies and employment agencies. As the federal Ouimet Committee on Corrections said in its landmark 1969 report: "The public has relatively little trouble learning that a person has been convicted of a criminal offence. . . . Such information is widely disseminated and kept on file by governmental and private agencies." How much truer that rings in today's world of expanding personal databanks and telecommunications technology.

The chief source of information about criminal offenders in Canada today is the automated Canadian Police Information Centre (CPIC) maintained by the RCMP. CPIC is a national repository of fingerprint and criminal record information which is disseminated to authorized law enforcement agencies throughout Canada, the US and abroad, to government departments for security and reliability investigations, and to individuals requiring police certificates for employment, visas and travel documents. In the absence of a pardon, criminal records are maintained on CPIC's automated data retrieval system until the offenders 80th birthday (unless they re-offend, in which case it will be kept active until their 100th birthday).

A criminal record can have far-reaching consequences. For example, it can prevent someone from studying or practicing law, medicine, teaching and other professions; it can bar employment by government departments and agencies at all levels; it can preclude the operation of a taxi or employment by racetrack or liquor control commissions, businesses that require bonding or licensing, and countless other private sector employers; it can limit a person's ability to rent property, purchase insurance coverage or obtain indemnity following a claim; and it can prevent a person from traveling to the US and other countries (an even more complicated matter since the events of 9/11).

Absolute and conditional discharges were enacted by Parliament on July 15, 1972. They were explained by then-Health Minister John Munro as a "means whereby the courts could avoid imposing a criminal record on persons charged with cannabis possession." (That was the Government's official response to a federal Commission's recommendation two months earlier that the offence of cannabis possession should be repealed altogether.) But if a discharge doesn't avoid a criminal record, how did Mr Munro get away with saying that it did? To answer that we have to look closely at the language of the legislation that created discharges, the Criminal Law Amendment Act of 1972.

That Act ushered in amendments to two federal statutes, the Criminal Code and the Criminal Records Act. The Criminal Code is the core criminal law document in Canada. It defines crimes against the person, against public order, and against property, and it lays out the penalties and the law enforcement and trial procedures for them. The Criminal Records Act, at the other end of the criminal justice spectrum, is an act "to provide for the relief of persons who have been convicted of offences and have subsequently rehabilitated themselves." It provides that relief by allowing offenders, once they've served their full sentence, to apply to the National Parole Board for a pardon and by placing restrictions on the disclosure of records of pardoned offences that are in the custody of CPIC and other federal Departments and agencies.

The Criminal Law Amendment Act of 1972 inserted the absolute and conditional discharge provisions into the Criminal Code, stating that: "Where a court directs . . . that an accused be discharged, the accused shall be deemed not to have been convicted of the offence . . . to which the discharge relates." The concomitant amendment to the Criminal Records Act provided that: "This Act applies to a person who has been granted an absolute or conditional discharge . . . as if he had been convicted of the offence in respect of which the discharge was granted."

That surprising contradiction meant only one thing: discharged offenders, although legally deemed not to have been convicted of their offence, still had criminal records and, therefore, could still apply for a pardon. They could legally deny having been convicted of an offence, but they couldn't deny having committed a criminal offence or having been charged, prosecuted, found guilty or sentenced for a criminal offence. Nor could they deny having a criminal record. Records of their crimes were still stored and widely disseminated by CPIC and other public and private agencies.

As a result of amendments to the Criminal Records Act in 1992 discharged offenders may no longer apply for a pardon. Instead, the Act now provides that all references to a discharge granted after July 24, 1992 must be removed from the "automated criminal conviction records retrieval system" (CPIC) one year after the grant of an absolute discharge and three years after the grant of a conditional discharge. At the expiration of those periods the RCMP and other federal custodians of records of discharged offences are prohibited from disclosing "the existence of the record or the fact of the discharge . . . without the prior approval of the Solicitor General of Canada." Offenders who received discharges prior to July 24, 1992 can now write to the RCMP to request that records of their offences be treated likewise. These new requirements do not apply to provincial or municipal law enforcement agencies, to other provincial and municipal government departments, or to private agencies that maintain records of criminal offences.

When I asked the National Parole Board why discharged offenders could no longer apply for a pardon I was told it was because they were not convicted of their offence and, therefore, did not have criminal records -- the same explanation falsely given by the Government to explain the discharge provisions 32 years ago. The fact remains, however, that discharged offenders still have records of their offence stored on one of the automated retrieval databases in CPIC. And while their records may be separated from those files after the periods specified in the Criminal Records Act, they are available for electronic retrieval prior to the expiration of those periods by any police force in Canada, the United States and other allied countries. The RCMP points out on its website that foreign authorities may save records retrieved from CPIC onto their own files. Thus, even though records of discharged offences may be separated from the RCMP's retrievable files after a period of time, they may remain indefinitely available to law enforcement authorities in the US and other countries from their own databanks.

When the Controlled Drugs and Substances Act was first debated in Parliament in 1994 Paddy Torsney (Lib, Burlington) told of a young man who came to her office who had received a discharge for possession of a small amount of cannabis. Eight years later he was in sales for a Canadian company but was barred from entry to the United States because of his criminal record. Asked if anything could be done about that, the Justice Department's Chief Counsel, Criminal Law Policy, said: “It may be addressed. Possibly it could be addressed here; possibly it could be addressed administratively. The US finds out about these records not by reading about it in The Ottawa Citizen. It's because we send them information of some type. They have access, I guess, to either CPIC or some other sort of police information network.” The problem Torsney raised hasn't been addressed.

If Svend Robinson and Todd Bertuzzi had fulfilled the terms of their conditional discharges before July 24, 1992 they could have applied for a pardon; but since their sentences came after that date they can no longer do so. That restriction could prove costly to them — and to thousands of others in the same position — particularly with regard to traveling to the US and abroad, or finding future employment that requires a pardon as evidence of a criminal offender's rehabilitation.

The federal Government's explanation of the discharge provisions was dishonest from the start -- a blatant deception to neutralize the controversy over cannabis possession. Unfortunately, the mistaken belief that a discharge avoids a criminal record is now firmly entrenched in our society (including the criminal justice system itself), and thousands of unwitting offenders are in a state of legal limbo because of it.

The discharge provisions should be repealed. They weaken both the deterrent effect of criminal prohibitions and the remedial effect of acts of clemency. To restore lost credibility to the criminal justice system, the federal Government must come to grips with what should and what should not be a criminal offence in the first place; and it should remind the public on a regular basis about the true meaning and consequences of a criminal record and the real nature and benefits of a pardon.

Mike Bryan is a freelance writer in Tahsis, BC. Now retired, he was Special Assistant and Editor on the Le Dain Commission on the Non-Medical Use of Drugs and a drug policy advisor in the Health Protection Branch. He is a member of the International Advisory Board of the National Organization for Reform of Marijuana Laws (NORML) Canada.

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