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Criminal Records

A person *convicted* of an offence under the Controlled Drugs and Substances Act automatically receives a criminal record. However, section 736 of the Criminal Code allows a court to grant an absolute or conditional discharge for offences punishable by less than 14 years imprisonment (unless the law specifies a minimum penalty).

A person who receives an absolute discharge from a court is deemed not to have been convicted (although he has been found "guilty"). A conditional discharge does not become "absolute" until the person has complied with all the conditions that the court attaches to the discharge. Once the person complies with all the conditions, the discharge becomes "absolute" and the person is deemed not to have been convicted. A person who receives a discharge (either an absolute discharge or a conditional discharge where the person has complied with all the conditions) is not supposed to acquire a formal criminal record. **However**, information about the person will still be maintained in court files and in some police files (and may be shared with police forces in other countries, so that, despite the lack of a criminal record, the person may not be permitted to enter those countries.   For further information, see the January 2005 analysis by Mike Bryan,  formerly special assistant and editor on the Le Dain Commission on the non-medical use of drugs and also a former drug policy adviser in the Health Protection Branch of Health Canada.  He is a member of the International Advisory Board of the National Organization for Reform of Marijuana Laws (NORML).

As well, the Criminal Records Act, c. C-47, enacted by Parliament, seems to permit government departments and agencies (including the police) to keep records of discharges and disclose the records to others (like police authorities in other countries, such as the United States).

Section 6.1(1) of the Act permits a government department or agency to disclose a record of a discharge for up to one year after an absolute discharge is granted, and three years after a conditional discharge. Even after the one or three year periods have expired, the Minister (the Solicitor General of Canada) can allow the record to be disclosed.

The relevant sections of the Criminal Records Act read as follows:


            6.1 (1) No record of a discharge under section 736 of the Criminal Code that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister, if
                (a) more than one year has elapsed since the offender was discharged absolutely; or

     (b) more than three years have elapsed since the offender was discharged on the conditions prescribed in a probation order.

        Purging C.P.I.C.
        (2) The Commissioner [that is, the Commissioner of the RCMP] shall remove all references to a discharge under section 736 of the Criminal Code from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police on the expiration of the relevant period referred to in subsection (1).

Updated: 14 Jan 2005 | Accessed: 75759 times