Avoiding a Criminal Record

A person charged with an offence pursuant to certain federal statutes or regulations (usually the Criminal Code or the Controlled Drugs and Substances Act) faces the possibility of a criminal record if convicted of the offence. This article is a brief discussion of how charges may be dealt with to avoid a criminal record for the person charged.

First of all, if a charge is dismissed at trial or if Crown Counsel (the Prosecutor) decides at some time prior to trial to enter a stay of proceedings (withdraw the charge), there of course will be no criminal record resulting from the charge. In such cases an application can also be made to the police force involved in the investigation of the alleged offence for destruction of the fingerprints and photographs taken by the police pursuant to the Identification of Criminals Act.

There is also provision in the Criminal Code for Alternative Measures, also referred to as diversion. If an accused person qualifies for the Alternative Measures program and then completes all conditions imposed by the program, Crown Counsel will enter a stay of proceedings of the charge, which means that there will be no criminal record.

In order to qualify for the program, an individual must meet certain conditions, the most important of which is that he must accept responsibility for his actions resulting in the criminal charge. In other words, he must agree that he committed the offence with which he is charged. If he does not, the case is dealt with in court in the usual manner. Alternative Measures may only be used if it is not inconsistent with the protection of society. Persons charged with certain offences are not eligible for the program. Generally, a first time offender charged with a minor, non violent crime would be an excellent candidate.

If a person qualifies for the Alternative Measures Program, which is administered by Crown Counsel and the Corrections Branch, his case is adjourned by the Court for a period of time to enable him to complete certain conditions deemed appropriate for his case. Some of the more usual conditions are performing community work service, counseling and treatment for alcohol and/or substance abuse, counseling for anger management, a letter of apology to the victim of the crime, etc. Crown Counsel will often initiate the diversion process, but if it does not, a lawyer will often be successful in having his Client’s case eligibility reviewed if it fits within the guidelines.

If a person does not qualify for Alternative Measures, his case will be dealt with by the Court. However, he may be successful in obtaining an absolute or conditional discharge if he pleads guilty or is found guilty of an offence which does not have a minimum sentence or is punishable by imprisonment for less than fourteen years. The Court must also be convinced that not only would the discharge be in the best interests of the accused, but it must also not be contrary to the public interest.

If the Court is of the opinion that a discharge is appropriate, it will, instead of convicting the accused, direct that he be discharged absolutely or on conditions set out in a probation order. An absolute discharge takes effect immediately and the accused is not considered convicted of the offence and therefore does not have a criminal record. The more usual scenario is a conditional discharge where the individual is placed on probation for a period of time with conditions to be met, and the discharge does not become absolute until the completion of the probation.

If a person is convicted of an offence which results in a criminal record, he may apply to the National Parole Board for a pardon. An application for pardon will not be considered by the Board until after 5 years from the completion of a sentence for an indictable offence or until after 3 years from the completion of a sentence in the case of a summary conviction offence.

The Board will carry out an investigation after receiving the application. In order to obtain a pardon the applicant must be of "good conduct" and must not have been convicted of another offence contrary to a federal statute or regulations. If a pardon is granted the record of his conviction will be sealed and he will no longer be considered to have a criminal record.

The current toll free telephone number of the National Parole Board is 1-800-874-2652.

By Stuart Lein
December, 2006