Chapter 15 - The Criminal Justice System

Criminal record

So what are the consequences of a criminal conviction? There are pre-disposition costs related to the criminal justice system such as legal fees, time off from work, etc. Often, the liberty of the offender is compromised by virtue of having to go to the police station. There are also the emotional costs of worrying about having been charged with a criminal offence. Even if the charge is later withdrawn, offenders have experienced costs.[1][25]   

Sanctions imposed in court are another obvious cost to the offender. They could include probation, a fine or some other sentence. Finally, there are also post-conviction costs. For example, a criminal conviction can have a negative impact on a person’s employment opportunities and can be an impediment to travel to other countries. The general stigma of criminalization affects all offenders. Those offenders receiving harsher sentences generally feel unfairly treated, a feeling that can lead to a lack of respect for the administration of justice.[2][26]

Allan Young made the following statement  

I get two to three calls a week from otherwise law-abiding citizens who are pot smokers who have been fired from their jobs or have been denied entry into the United States or access to their children or government employment. These people have been treated like common criminals. This is the biggest problem with the marijuana prohibition: If you treat someone who is otherwise law-abiding as a common criminal, they will start to disrespect people like Chief Fantino and the other people who really do try to serve and protect our interests. [3][27] 

With respect to the costs of cannabis prohibition, Dr. Patricia Erickson indicated that we do have choices. 

It is evident in U.S. drug policy that, the people for whom drug use is a moral issue, the cost is unimportant. The costs are irrelevant to them. What is relevant is making sure that the use of drugs is seen as wrong. In Canada, however, we have always been more balanced and more evidence-based. That is a good distinction from the U.S. Canadians are at least able to measure and discuss the costs of policy and consider alternatives. We are not willing to pay any price. [4][28]

A criminal conviction can also be an important factor in future dealings with the criminal justice system. For example, a person's prior conviction: may influence a police officer to lay a charge in cases where he or she might otherwise have used their discretion not to lay a charge; may influence a crown prosecutor to proceed by indictment rather than by summary conviction; may be used in limited circumstances in subsequent criminal proceedings; and may lead a judge to impose a more severe sentence. These are not trivial matters for those who have been convicted of a drug-related offence–in particular, the offence of possession of cannabis.

What happens in the case of a conditional or an absolute discharge? Section 730 of the Criminal Code indicates that such a person is deemed not to have been convicted of the offence. However, such a person would in likelihood have to answer yes if he or she were asked whether they had ever been arrested for, found guilty of, or pleaded guilty to a criminal offence.  

A conviction does not necessarily mean that a person has a “criminal record,” that is, a record in the Canadian Police Information Centre (CPIC) System. This computerized information system for law enforcement use provides information on crimes and criminals. The Identification Data Bank–one of four CPIC data banks–contains the Criminal Record Synopsis File in which records are entered based on information contained on criminal fingerprint forms. This file contains tombstone data respecting the file–such as status of the record, subject description, subject history (record, offence type) and subject aliases – and the complete Criminal Record is available to all CPIC terminal agencies upon request.

In the case of adult offenders, the Criminal Record file will be destroyed the earlier of either three years after their death and the date the individual reaches 80 years of age (although this will not apply in certain circumstances, such as where the individual has been charged with an offence within the previous 10 years). Absolute and conditional discharges will be removed to an archive as follows: absolute discharge on or after 24 July 1992 upon the expiration of one year from the date of sentencing (it is archived for five years and then destroyed); and conditional discharge on or after 24 July 1992 upon the expiration of three years from the date of sentencing (it is archived for five years and then destroyed). Discharges prior to 24 July 1992 will be destroyed on written request. Where a pardon is granted, the information about this offence is removed from CPIC to secured storage, separate and apart from all other criminal records (it is destroyed following the guidelines set out above for regular criminal record files). In the case of a charge not resulting in a conviction, the accused may make a request to the police agency that handled the case to have the information removed from local police files and RCMP records. The RCMP will return a person’s fingerprints and remove the offence information from CPIC, only on the request of the police agency that handled the case. Special rules apply to young offenders.

As explained previously, even though a person does not have a “criminal record,” it does not mean that the person has not been convicted of a criminal offence. While the presence of a criminal record is more likely to lead to negative consequences for the individual, many of the issues raised above also apply to those who have been convicted of a criminal offence but who do not have a “criminal record.” Depending on the circumstances and on the way the question is formulated, the lack of a criminal record is irrelevant.

Because the offence of possession of less than 30 grams of marijuana is currently a summary conviction offence, a person should not be fingerprinted following arrest. Because fingerprints are the basis for a “criminal record,” no such record will be entered in CPIC based only on this offence. However, before 1996, people had a criminal record, and it has been indicated that by the early 1990s, over 500,000 Canadians had a criminal record for cannabis possession.[5][29]  

Because of the complexity of this issue, one wonders whether people who have been convicted of an offence, notwithstanding the sentence imposed or whether they have received a pardon, know their legal rights. For example, most people would probably have difficulty answering certain criminal-related questions found on employment application forms.