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A Canadian Discharge Does Not Absolutely Clear Your Record
Setting The (Criminal) Record Straight In Canada
A discharge by a court doesn’t do away with the documentation. Here’s why
by Mike Bryan
It is now gospel in Canada that when offenders are granted an absolute or conditional discharge they don’t receive a criminal record. That belief surfaces in the media when prominent members of the community face criminal charges.
The cases of former MP Svend Robinson, who pleaded guilty last August to stealing a valuable ring, and NHL hockey star Todd Bertuzzi, who pleaded guilty in December to 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 is that discharges 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 it is, who can store and disseminate it, and what the consequences of having one are.
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.
That kind of documentation is widely disseminated and kept on file by governmental agencies (police, courts, prosecutors and correctional programs) and by private agencies (newspapers, credit firms, bonding companies and employment agencies, for example.)
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 that is disseminated to authorized law enforcement agencies throughout Canada, the U.S. and abroad, to government departments for security/reliability investigations, and to individuals requiring police certificates for employment, visas and travel documents.
A criminal record can have farreaching consequences: It can prevent someone from studying or practising 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 that requires bonding or licensing; it can limit a person’s ability to rent property or purchase insurance; and it can prevent a person from traveling to the U.S. and other countries.
Absolute and conditional discharges were enacted by Parliament on July 15, 1972. They were explained by then health minister John Munro as “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 discharges don’t avoid a criminal record, how did Munro get away with saying they did?
To answer that we have to look closely at the language of the discharge provisions in the Criminal Code and at the language of an amendment to the Criminal Records Act that was made when discharges were introduced.
(The Criminal Records Act is an act “to provide for the relief of persons who have been convicted of offences and have subsequently rehabilitated themselves.” It does that by enabling offenders who have served their full sentence to apply to the National Parole Board for a pardon and by restricting the RCMP and other federal agencies in the handling and disclosure of records of pardoned offences.)
The original discharge provisions in the Criminal Code stated: “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.” As a result, people who are found guilty of an offence in Canada receive either a conviction or a discharge.
The Criminal Records Act amendment made at the same time said: “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 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 further 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 active files of CPIC one year after the grant of an absolute discharge and three years after the grant of a conditional discharge.
At the end of those periods the RCMP and other federal agencies are prohibited from disclosing “the existence of the record or the fact of the discharge.” Offenders who received discharges before July 24, 1992, can now write to the RCMP to request that records of their offence be treated likewise.
Even though discharged offenders can no longer apply for a pardon, records of their offence are still recorded on an automated retrieval database in CPIC. Those records will be separated from active files after the periods specified in the Criminal Records Act, but until then they can be accessed by police forces 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, records of discharged offences that are no longer accessible to law enforcement authorities in this country may remain available indefinitely to law enforcement authorities in the U.S. and other countries from their own databanks.
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; 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 in terms of travelling to the U.S. 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.
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