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Publication: Vancouver Sun; Date:2005 Jan 10; Section:Issues & Ideas;
Page Number: A7
Setting the (criminal) record straight
A discharge by a court doesn’t do away with the documentation. Here’s why
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
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
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
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
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
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.
Mike Bryan is a freelance writer in Tahsis, B.C. Now retired, he
was special assistant and editor on the Le Dain Commission on the non-medical
use of drugs and a drug policy adviser 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.
Updated:Friday, 14-Jan-2005 06:44:49 PST|