YOU CAN NEVER ESCAPE A CRIMINAL RECORD

All the media got it wrong: Svend Robinson and Todd Bertuzzi, along with
thousands of unlucky pot-smokers, will carry criminal records, regardless
of their conditional discharges.

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

The cases of former MP Svend Robinson, found guilty earlier this year of
stealing a valuable ring, and NHL hockey star Todd Bertuzzi, found guilty
in December of 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 about discharges is that they 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 is it? Who can store and disseminate it? What are
the consequences of having one?

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.

Law enforcement agencies, prosecutors, defense attorneys, courts, probation
and parole offices all maintain such documentation. So do private
organizations such as newspapers, credit firms, bonding companies and
employment agencies. As the federal Ouimet Committee on Corrections said in
its landmark 1969 report: "The public has relatively little trouble
learning that a person has been convicted of a criminal offence. . . . Such
information is widely disseminated and kept on file by governmental and
private agencies." How much truer that rings in today's world of expanding
personal databanks and telecommunications technology.

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 which is disseminated to authorized law enforcement agencies
throughout Canada, the US and abroad, to government departments for
security and reliability investigations, and to individuals requiring
police certificates for employment, visas and travel documents.

In the absence of a pardon, criminal records are maintained on CPIC's
automated data retrieval system until the offenders 80th birthday (unless
they re-offend, in which case it will be kept active until their 100th
birthday).

A criminal record can have far-reaching consequences. For example, it can
prevent someone from studying or practicing 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 by racetrack or liquor control commissions, businesses that
require bonding or licensing, and countless other private sector employers;
it can limit a person's ability to rent property, purchase insurance
coverage or obtain indemnity following a claim; and it can prevent a person
from traveling to the US and other countries (an even more complicated
matter since the events of 9/11).

Absolute and conditional discharges were enacted by Parliament on July 15,
1972. They were explained by then-Health Minister John Munro as a "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 a
discharge doesn't avoid a criminal record, how did Mr Munro get away with
saying that it did? To answer that we have to look closely at the language
of the legislation that created discharges, the Criminal Law Amendment Act
of 1972.

That Act ushered in amendments to two federal statutes, the Criminal Code
and the Criminal Records Act. The Criminal Code is the core criminal law
document in Canada. It defines crimes against the person, against public
order, and against property, and it lays out the penalties and the law
enforcement and trial procedures for them. The Criminal Records Act, at the
other end of the criminal justice spectrum, is an act "to provide for the
relief of persons who have been convicted of offences and have subsequently
rehabilitated themselves." It provides that relief by allowing offenders,
once they've served their full sentence, to apply to the National Parole
Board for a pardon and by placing restrictions on the disclosure of records
of pardoned offences that are in the custody of CPIC and other federal
Departments and agencies.

The Criminal Law Amendment Act of 1972 inserted the absolute and
conditional discharge provisions into the Criminal Code, stating that:
"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." The concomitant amendment to the Criminal Records
Act provided that: "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 only 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 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 "automated criminal conviction
records retrieval system" (CPIC) one year after the grant of an absolute
discharge and three years after the grant of a conditional discharge.

At the expiration of those periods the RCMP and other federal custodians of
records of discharged offences are prohibited from disclosing "the
existence of the record or the fact of the discharge . . . without the
prior approval of the Solicitor General of Canada." Offenders who received
discharges prior to July 24, 1992 can now write to the RCMP to request that
records of their offences be treated likewise.

These new requirements do not apply to provincial or municipal law
enforcement agencies, to other provincial and municipal government
departments, or to private agencies that maintain records of criminal offences.

When I asked the National Parole Board why discharged offenders could no
longer apply for a pardon I was told it was because they were not convicted
of their offence and, therefore, did not have criminal records -- the same
explanation falsely given by the Government to explain the discharge
provisions 32 years ago. The fact remains, however, that discharged
offenders still have records of their offence stored on one of the
automated retrieval databases in CPIC. And while their records may be
separated from those files after the periods specified in the Criminal
Records Act, they are available for electronic retrieval prior to the
expiration of those periods by any police force 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, even though records of discharged offences may be separated from the
RCMP's retrievable files after a period of time, they may remain
indefinitely available to law enforcement authorities in the US and other
countries from their own databanks.

When the Controlled Drugs and Substances Act was first debated in
Parliament in 1994 Paddy Torsney (Lib, Burlington) told of a young man who
came to her office who had received a discharge for possession of a small
amount of cannabis. Eight years later he was in sales for a Canadian
company but was barred from entry to the United States because of his
criminal record.

Asked if anything could be done about that, the Justice Department's Chief
Counsel, Criminal Law Policy, said: "It may be addressed.

Possibly it could be addressed here; possibly it could be addressed
administratively. The US finds out about these records not by reading about
it in The Ottawa Citizen. It's because we send them information of some
type. They have access, I guess, to either CPIC or some other sort of
police information network." The problem Torsney raised hasn't been addressed.

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; but 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 with regard to traveling to the
US 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.