Copyright: 2005 The Vancouver Sun
Contact: sunletters@png.canwest.com
Website: http://www.canada.com/vancouver/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Mike Bryan, Special to the Sun
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)
Note: Mike Bryan is a freelance writer in Tahsis, B.C. Now retired, he was
special assistant and editor on the Le Dain Commission on the non-medical
use of drugs and a drug policy adviser in the Health Protection Branch. He
is a member of the International Advisory Board of the National
Organization for Reform of Marijuana Laws (NORML) Canada.

SETTING THE (CRIMINAL) RECORD STRAIGHT

A Discharge By A Court Doesn't Do Away With The Documentation. Here's Why

It is now gospel in Canada that when offenders are granted an absolute or
conditional discharge they don't receive a criminal record. That belief
surfaces in the media when prominent members of the community face criminal
charges.

The cases of former MP Svend Robinson, who pleaded guilty last August to
stealing a valuable ring, and NHL hockey star Todd Bertuzzi, who pleaded
guilty in December to assaulting on-ice opponent Steven Moore, are good
examples.

After the courts granted them a conditional discharge, every print, radio
and television outlet in the country announced that they wouldn't have a
criminal record.

The simple truth is that discharges don't avoid a criminal record and never
have. Every person who's ever been granted a discharge has a criminal
record and cannot honestly or legally deny it.

To understand how something so straightforward could be so misunderstood by
so many we have to be clear from the start about the meaning of the term
"criminal record" -- what it is, who can store and disseminate it, and what
the consequences of having one are.

The term "criminal record" has no specific legal meaning in Canada -- it
isn't defined in any statute or regulation. It is most commonly understood
as documentation of a person's criminal conviction that can have damaging
consequences long after an offender serves his or her sentence.

That kind of documentation is widely disseminated and kept on file by
governmental agencies (police, courts, prosecutors and correctional
programs) and by private agencies (newspapers, credit firms, bonding
companies and employment agencies, for example.)

The chief source of information about criminal offenders in Canada today is
the automated Canadian Police Information Centre (CPIC) maintained by the
RCMP. CPIC is a national repository of fingerprint and criminal record
information that is disseminated to authorized law enforcement agencies
throughout Canada, the U.S. and abroad, to government departments for
security/reliability investigations, and to individuals requiring police
certificates for employment, visas and travel documents.

A criminal record can have far-reaching consequences: It can prevent
someone from studying or practising law, medicine, teaching and other
professions; it can bar employment by government departments and agencies
at all levels; it can preclude the operation of a taxi or employment that
requires bonding or licensing; it can limit a person's ability to rent
property or purchase insurance; and it can prevent a person from traveling
to the U.S. and other countries.

Absolute and conditional discharges were enacted by Parliament on July 15,
1972. They were explained by then health minister John Munro as "means
whereby the courts could avoid imposing a criminal record on persons
charged with cannabis possession." (That was the government's official
response to a federal commission's recommendation two months earlier that
the offence of cannabis possession should be repealed altogether.)

But if discharges don't avoid a criminal record, how did Munro get away
with saying they did?

To answer that we have to look closely at the language of the discharge
provisions in the Criminal Code and at the language of an amendment to the
Criminal Records Act that was made when discharges were introduced.

(The Criminal Records Act is an act "to provide for the relief of persons
who have been convicted of offences and have subsequently rehabilitated
themselves." It does that by enabling offenders who have served their full
sentence to apply to the National Parole Board for a pardon and by
restricting the RCMP and other federal agencies in the handling and
disclosure of records of pardoned offences.)

The original discharge provisions in the Criminal Code stated: "Where a
court directs ... that an accused be discharged, the accused shall be
deemed not to have been convicted of the offence ... to which the discharge
relates." As a result, people who are found guilty of an offence in Canada
receive either a conviction or a discharge.

The Criminal Records Act amendment made at the same time said: "This Act
applies to a person who has been granted an absolute or conditional
discharge ... as if he had been convicted of the offence in respect of
which the discharge was granted."

That surprising contradiction meant one thing: Discharged offenders,
although legally deemed not to have been convicted of their offence, still
had criminal records and, therefore, could still apply for a pardon. They
could legally deny having been convicted of an offence, but they couldn't
deny having committed a criminal offence or having been charged,
prosecuted, found guilty or sentenced for a criminal offence.

Nor could they deny having a criminal record. Records of their crimes were
still stored and widely disseminated by CPIC and other public and private
agencies.

As a result of further amendments to the Criminal Records Act in 1992,
discharged offenders may no longer apply for a pardon. Instead, the Act now
provides that all references to a discharge granted after July 24, 1992,
must be removed from the active files of CPIC one year after the grant of
an absolute discharge and three years after the grant of a conditional
discharge.

At the end of those periods the RCMP and other federal agencies are
prohibited from disclosing "the existence of the record or the fact of the
discharge." Offenders who received discharges before July 24, 1992, can now
write to the RCMP to request that records of their offence be treated likewise.

Even though discharged offenders can no longer apply for a pardon, records
of their offence are still recorded on an automated retrieval database in
CPIC. Those records will be separated from active files after the periods
specified in the Criminal Records Act, but until then they can be accessed
by police forces in Canada, the United States and other allied countries.

The RCMP points out on its website that foreign authorities may save
records retrieved from CPIC onto their own files. Thus, records of
discharged offences that are no longer accessible to law enforcement
authorities in this country may remain available indefinitely to law
enforcement authorities in the U.S. and other countries from their own
databanks.

If Svend Robinson and Todd Bertuzzi had fulfilled the terms of their
conditional discharges before July 24, 1992, they could have applied for a
pardon; since their sentences came after that date they can no longer do so.

That restriction could prove costly to them -- and to thousands of others
in the same position -- particularly in terms of travelling to the U.S. and
abroad or finding future employment that requires a pardon as evidence of a
criminal offender's rehabilitation.

The federal government's explanation of the discharge provisions was
dishonest from the start -- a blatant deception to neutralize the
controversy over cannabis possession. Unfortunately, the mistaken belief
that a discharge avoids a criminal record is now firmly entrenched in our
society (including the criminal justice system itself), and thousands of
unwitting offenders are in a state of legal limbo because of it.

The discharge provisions should be repealed. They weaken both the deterrent
effect of criminal prohibitions and the remedial effect of acts of clemency.

To restore lost credibility to the criminal justice system, the federal
government must come to grips with what should and what should not be a
criminal offence in the first place; and it should remind the public on a
regular basis about the true meaning and consequences of a criminal record
and the real nature and benefits of a pardon.