Health Protection Branch

As previously indicated, the most adverse consequence of being convicted of a cannabis offence may be the existence of a written and computer record of the incident, rather than the sentence itself. If this result were intended, then further discussion would be unnecessary. However, various Royal Commissions, academics, commentators and the Law Reform Commission of Canada have strongly urged that the collateral punitive consequences of a criminal record be mitigated, especially in less serious criminal cases. The discharge provisions of the Criminal Code, s.662, the Criminal Records Act R.S.C. 1970 (1st Supp.), c.12 and Bill S-19 all address this problem. In this section of the paper, we will examine the massive flow of data generated by a cannabis case and explain why federal attempts to mitigate the consequences of a "criminal record" have had an extremely limited impact.

It is necessary at this point to briefly describe the information systems available to a police officer engaged in general enforcement duties. In addition to the files kept by his own department, almost all police officers in Canada have virtually immediate access to the data contained in the Canadian Police Information Centre (CPIC). CPIC, which is run by the RCMP, receives information from individual member police forces across Canada and organizes it into two basic categories of operational data. One includes information regarding wanted, missing and charged persons and stolen or missing vehicles and property. This data is kept for relatively short periods of time during ongoing investigations. For example, once a charged person's case has been disposed of, his name is removed from this system.

The other category of information, the Criminal Records Index, is a permanent record of all persons who have been charged by member police forces and whose fingerprints have been forwarded to the RCMP. All entries on this Index must be accompanied by fingerprints. Since all cannabis offences may be proceeded against by indictment, even those persons charged with simple possession of cannabis are liable to be fingerprinted and photographed. (Identification of Criminals Act R.S.C. 1970, c.l-l) Based on the information submitted, the RCMP prepare what is known as a "criminal record synopsis" which summarizes the persons "criminal history." Once an individual has been charged and his fingerprints have been sent to the RCMP, that data will permanently remain on file, even if the case is dropped or the accused is acquitted or discharged. Thus, an officer, by simply requesting a CPIC "criminal record synopsis" over the police radio, can obtain the police record for any individual who had ever been fingerprinted pursuant to an arrest.

There appears to be only two ways to limit access to, and dissemination of, information in the Criminal Records Index. A person may ask the police force that forwarded his prints to the RCMP to seek their return. While the RCMP will return the fingerprints to the contributing force and close its file, the local police force is not obliged to either make such a request or, even if it does, to close its own file. The second way in which to prevent dissemination of the record is to obtain a pardon under the Criminal Records Act. The limitations of this Act are detailed below.

Traditionally the term "criminal record" has been used to refer to an official account of an offender's conviction and disposition. This narrow definition ignores the massive trail of potentially damning information that is collected and disseminated prior to the disposition of the case. With the exception of the RCMP and drug prosecutors’ files, the federal government may have no constitutional power to limit these pre-disposition records. By the time the discharge and Criminal Records Act provisions take effect, the harm to the suspect's reputation, or education and employment prospects may be complete.

Potentially damaging information begins to accumulate during the first contact between police and the suspect. It is standard police policy to query through CPIC the licence plate of a car prior to approaching it. At that point the officer, the driver and his passengers, the CPIC operator, and anyone listening to police calls on shortwave radio or the widely advertised police and fire department receivers would be aware of the contact. The officer routinely checks the driver's and even the occupants' names on CPIC. Thus the company you keep, your whereabouts and perhaps even the officer's reason for stopping you may be accessible to a wide audience. CPIC checks are routine — more than 250,000 inquiries are made each week.

If the officer eventually finds cannabis and decides to lay a charge, reams of forms are filled out and filed. (See Figure 1 on page 20.) The suspect's fingerprints and photograph are filed at the local police station and a copy of the fingerprints are sent to the RCMP. The suspect's name and address and the charge are entered on CPIC. As indicated, even if the charge is dropped or the accused is acquitted, the police station's record and the RCMP Criminal Records Index are maintained; only the short-term CPIC entry under charged persons is expunged. Generally, any police agency in Canada can gain access to the local police records and the RCMP Criminal Records Index. Customs, immigration, prison, parole and similar agencies have been granted access to this information. Reciprocal information sharing arrangements have also been instituted with Interpol and American police agencies. Despite rigorous precautions in the design of these systems and the training and monitoring of operators, some of this information will inevitably leak into unauthorized hands.

Once the suspect appears in court, the charge becomes a matter of public record and may be reported by the local newspaper or other media. In addition, the arrest might be recorded in the local legal aid office, federal prosecutor's office, the local court records, local detention centre files, and the Federal Department of Health and Welfare's record of known and suspected drug users. These sources of information are accumulated prior to the disposition of a case and, with few exceptions, are permanently maintained regardless of its outcome.

The disposition of a case is entered in the records of the local police, the RCMP, the court, the prosecutor's office and the Department of Health and Welfare. It might also be reported in the local newspapers, radio and television.

Discharges. In very general terms, the discharge provisions provide that an individual who has been found guilty or pleads guilty and who is granted a discharge is deemed not to have been convicted. A discharged offender can honestly answer "no" to the question, "Have you been convicted of a criminal offence?", but he would, however, have to answer "yes" if asked any of the following questions: "Have you ever been arrested for, been found guilty of, pleaded guilty to, been sentenced for, or ever committed a criminal offence?" The discharge has no impact on the police or other records that accumulated prior to disposition, nor does it limit the subsequent dissemination of this information. A discharged offender is not treated as a first offender, because the court is free to consider his discharge in sentencing him in a subsequent case. For all intents and purposes, a discharged offender has a "criminal record."

At best, the discharge provisions provide a very limited benefit in very narrow circumstances. It is questionable if the legal community fully understands the discharge provisions, and it is likely that the public and the offender himself do not realize their limited effect. Unfortunately there are probably many young people who have plead guilty to cannabis possession on the assumption that they would be given a discharge and thus suffer no "criminal record" or any disabilities with respect to future employment, citizenship, travel, credit rating, bonding, and similar matters. Regrettably, this is simply not true: the pre-disposition record and the discharge itself are widely disseminated, and a discharge is likely to have almost the identical impact on the offender's future as a conviction.

Pardons. The Criminal Records Act provides for the granting of a pardon upon an application by a discharged or convicted offender, following specified waiting periods. In most cases the RCMP will investigate the applicant, his family and acquaintances, and forward their findings to the Clemency Division of the Parole Board, which in turn makes a recommendation to the Parole Board. The pardon "vacates the conviction" (the term "conviction" has with respect to pardons been statutorily defined to include a discharge), which means that it deprives the conviction of any legal disabilities or disqualifications imposed by federal legislation. For example, a person who has been pardoned may not be challenged or disqualified as a juror solely on the ground that he had been convicted or discharged. Similarly, a person who has been pardoned regains his right to hold public office or contract with the Crown. A grant of a pardon, however, does not create the legal fiction that the crime never occurred. Consequently, a pardoned offender must answer "yes" to the questions, "Have you ever been convicted or discharged for a criminal offence?" and "Do you have a criminal record?" The offender, for what it is worth, may attempt to qualify his response by pointing out that he has been pardoned.

The Criminal Records Act's most tangible benefit is that it precludes federal departments, Crown corporations or other agencies under Parliament's legislative authority from asking a question on an employment form that would require the applicant to disclose a conviction or discharge for which he had been pardoned. The Canadian Human Rights Act S.C. 1977, c.33 extends some of these employment benefits beyond the application stage.

Records of a pardoned offence in the custody of federal authorities must be separately stored and cannot be revealed without the prior approval of the Solicitor General. The Criminal Records Act does not expunge the pardoned offender's criminal record but rather dictates how it is to be stored and the circumstances in which it may be released. These provisions are limited to "judicial records" which, according to the Clemency and Criminal Records Division, includes only the records of federal agencies and departments. All other records are considered non-judicial. These would include local and provincial police files, the court reporter's transcripts, court files, the court clerk's calendar, warrants of committal, and news media data. In any event, both judicial and non-judicial records will have been widely disseminated before a pardon was even applied for. The problems of limiting this information, years after it was collected and distributed, are insurmountable. The concern with limiting disclosure of a pardoned offender's record is somewhat misplaced. Unless the pardoned offender is willing to lie, an employer can obtain this critical information by simply asking him if he has ever been convicted or discharged for a criminal offence.

In summary, the benefits of a pardon are extremely limited. The Act is complex and probably misunderstood by the public, the offender, and even members of the legal community. The RCMP investigation may cause the applicant more trouble than the pardon is worth, and the Act is expensive to administer. Any attempts to broaden the Act's prohibition against disclosure to local and provincial police and court records may be unconstitutional.

By creating a criminal offence, the federal government sets in motion a process which generates a massive trail of data, both prior to and after the disposition of the case. Much of this elaborate record-keeping is essential to maintain the factual integrity of the process, to provide police with intelligence data, to evaluate the system's productivity, to assist in the efficient allocation of manpower and resources, and to ensure some measure of public access. These record-keeping systems cannot be dismantled, and the police and courts cannot operate in secrecy beyond the scrutiny of the public and media. A necessary result of these features of our criminal justice system is that any federal attempts to limit the collateral punitive consequences of pre-disposition and post-disposition records will benefit few cannabis offenders.