A criminal record can restrict a person’s ability to obtain or keep employment, pursue advanced education, become a Canadian citizen, and travel (particularly to the USA). For these reasons alone, a person charged with an offence should always consult a criminal lawyer before the first court appearance. Many people have made the mistake of pleading guilty without legal advice, just to “get it over with” and have found out the problems associated with having a criminal record.
A criminal lawyer will know whether it would be in the best interests of his client to proceed to trial or to attempt to resolve the charge by one of the methods below to avoid a criminal record for his client.
Dismissal or Stay of Proceedings
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 (terminate the charge), there of course will be no criminal record. Sometimes, and in certain circumstances, a criminal lawyer can persuade crown counsel to enter a stay of proceedings or withdraw the charge prior to trial. An example would be if certain evidence came to light that was not available to crown counsel at the time of the laying of the charge.
Alternative Measures Program or Diversion Program
Alternative measures, also referred to as diversion, may be available to an accused person for certain offences, if certain conditions are met. If an accused qualifies for the alternative measures program and 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. Generally, a first time offender charged with a minor, non-violent crime would be an excellent candidate.
If an accused person does not qualify for alternative measures, the case will be dealt with by the Court. However, the accused may be successful in obtaining an absolute or conditional discharge if he or she 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 or she 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.
On occasion, crown counsel will agree to an accused person entering a peace bond when that person has been charged with a violence related offence such as assault, threatening, etc. The accused is placed on probation for the maximum period of one year with appropriate conditions. Usually there are conditions prohibiting or restricting the accused from contacting the complainant (victim) in the case. A peace bond is not a conviction and therefore not a criminal record.
Criminal Record Suspension
If a person is convicted of an offence which results in a criminal record, that person may apply to the national parole board for a criminal record suspension (formally known as a pardon). An application will not be considered by the board until after 10 years from the completion of a sentence for an indictable offence or until after 5 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 criminal record suspension 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 criminal record suspension is granted the record of his conviction will be sealed and he will no longer be considered to have a criminal record.