Other Issues in Criminal Matters (1:VIII)

A. Client suspects he or she may be charged with an offence

The client may have been stopped by the police or observed doing "something wrong," but has not yet received a summons. To see if a client has been officially charged, contact the Vancouver police or the RCMP to see if a report to Crown Counsel has been made. It is also possible to check with the court clerk, the police, or the Crown Counsel office to see if an Information has been laid and forwarded to Crown Counsel. If there is an outstanding warrant for the client’s arrest, the accused must be advised that he should turn himself in immediately. This is a critical time to advise clients of their legal rights, including the right to remain silent.

B. Client is on probation or otherwise serving a sentence

The student may be able to help the client understand the terms of a sentence, or help the client in his or her relationship with the supervising authority. If the issue for which the client is seeking advice is complex, the client should be advised to seek legal counsel.

C. Staying a charge

Once the Information has been laid, the prosecution of the case is in the hands of the Crown. The Crown can only stay a charge if there is no substantial likelihood of conviction, or if it is not in the public interest to proceed with the charge.

A judge has no discretion in the decision of Crown Counsel to enter a stay of proceedings (Criminal Code, s 579). The Crown may enter a stay of proceedings either before or during the trial. See Section VI: Resolving the Matter Prior to Trial, above, for more information.

Note: At trial, the accused may instead ask Crown to call no evidence rather than enter a stay of proceedings, in which case the accused is acquitted due to a lack of evidence. This decision is solely within the discretion of Crown Counsel. An acquittal is preferable to a stay of proceedings as the accused's record will be removed immediately rather than remain as a 'pending charge' for one year.

Any person who wishes to have a stay of proceedings entered should do so with advice of counsel. Complainants should be careful with regards to what is said to Crown. The complainant could potentially cause charges to be brought against them if they tell Crown that they will not testify even if summoned, or that they initially lied to the police.

If the complainant and the accused both seek advice from LSLAP, the student must be aware that this is a serious conflict of interest. The second party must seek independent advice even if the complainant and accused are husband and wife. Under no circumstances should counsel for the accused advise the complainant, or vice versa. If the other party approaches LSLAP for advice, they must be immediately referred to their own legal counsel.

D. Appeal

The accused has a right to appeal a conviction or sentence or both. Appeals must be filed within 30 days of the sentence. A client who believes that he or she has a strong case for an appeal should be referred to the Lawyer Referral Service as LSLAP does not handle appeals.

E. Default in payment of fine or non-compliance with order

1. Provincial offences

A convicted person may not be jailed for defaulting on payment of a fine, except as under the Small Claims Act, RSBC 1996, c 430 (Offence Act, s 82). Failure to pay a fine can result in the Crown obtaining a court Judgment Order by filing the conviction and entering the amount of the fine. The order has the same effect as a judgment in a civil case. The Crown can collect the fine by a Garnishing Order, Warrant of Execution, or other means, just as a judgment would be enforced in a civil case.

2. Federal summary and indictable offences

If a fine or a community work service is ordered, the court may grant more time for payment or completion of hours. This is granted when a person has a legitimate excuse for wanting an extension.

F. Criminal records

1. What is a criminal record?

The answer is not straightforward as different people will use the term "criminal record" to mean different things. Informally, a "criminal record" often refers to criminal convictions. This would include suspended sentences, fines imposed after criminal convictions and any form of incarceration such as house arrest (conditional sentence) or jail time. This would not include discharges, stays of proceedings or withdrawn charges.

A criminal record is also used to refer to the information contained in the Canadian Police Information Centre (CPIC). CPIC is a central computer database that links police from across Canada by allowing each department to enter and access information on a person's criminal history. Depending on the level, this would include the history of any criminal proceedings against a person. As a result, discharges, stays of proceedings, peace bonds and withdrawn charges may appear on a person's CPIC record until they are purged or suspended.

Individual police departments additionally keep a great deal of other information regarding a person's criminal history that is not entered into CPIC. This could include criminal charges outstanding against a person or complaints made to police.

2. What information can a third party find out about?

It is very important that people read and understand when consenting to disclosure. Often employers will simply ask; "Do you have a criminal record?" – i.e. suspended sentences, fines imposed after criminal convictions and any form of incarceration. In this case, all other information does not have to be disclosed. If a more thorough check is done, the information that is disclosed depends on the agreement signed by the individual. It should be noted that the BC Human Rights Code, RSBC 1996, c 210, s.13, makes it illegal to discriminate based on being convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

There are two types of criminal record checks: standard and vulnerable sector. There are 4 levels of standard criminal record checks - level 1 to 4. Criminal record checks can only be done with the consent of the individual. Only police agencies are authorized to conduct a criminal record check, with the exception of BC Ministry of Public Safety and Solicitor General.

• Level 1: Records of criminal convictions which have not been suspended following an application for a criminal record suspension.
• Level 2: Level 1 + outstanding charges that the police force is aware of.
• Level 3: Level 2 + records of discharges which have not been removed (all charges regardless of disposition).
• Level 4: Level 3 + check on local police databases, court and law enforcement agency databases (also known as "Police Record Check").

The vulnerable sector check includes a level 4 check plus any sexual offences and convictions which a records suspension was granted. A criminal record does not include convictions under provincial laws, like the Motor Vehicle Act, RSBC 1996, c 318.

a) How will a criminal record affect my ability to travel?

Each individual country controls entry to its territory and the impact of a criminal record will vary depending on where a person is trying to travel (and often the person working at customs!). Canada and the US share a great deal of intelligence, such as CPIC, and American authorities will use this information when deciding whether or not to admit a person. A criminal conviction could be grounds to deny entry. While discharges are not convictions under Canadian law, American authorities do not make this distinction. Also, information that is purged from CPIC, which was accessed by the American database prior to it being purged from CPIC, may not be erased from American databases. Thus, a criminal history could affect a person's ability to travel, but the exact impact will depend entirely on the policies of the host country.

Inadmissibility to the United States

Admissibility to the U.S.A. is determined in accordance with the Immigration and Nationality Act (1952), Public Law No 82-414, 66 Stat 163) ("INA"). Section 212(a)(2)(A) of the INA states that a person is inadmissible if he or she commits a crime involving "moral turpitude" (i.e. shocks the public conscience; see Wing v United States 46 f2d 755 (7th Cir 1931) for a detailed definition), or violates any law relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 USC 802)). A person is also inadmissible to the United States if he or she commits two or more criminal offences whose convictions have an aggregate sentence of five years or more. Finally, an immigration officer can deny entry into the US if he or she has "reason to believe" that the individual has committed drug trafficking, prostitution, or money laundering offences.

Note: A conviction as defined in s 101(a)(48)(A) of the INA includes any form of punishment, penalty, or restraint of liberty, which is ordered by the court. This means that conditional discharges and suspended sentences would be considered as convictions. Consult Chapter 18 – Immigration Law for more information.

b) Elimination of records

All youth convictions are sealed at the time the person turns 18 years old. However, if a person is found guilty of an adult Criminal Code offence within 3 years following the completion of a sentence for a criminal youth summary conviction offence or within 5 years of completion of a sentence for a criminal youth indictable offence then their youth record is re-opened and remains part of the person's permanent record under youth convictions.

• Note: The time calculation under this section of the Youth Court Justice Act is complicated. As such occasionally mistakes are made and if you see a Youth Record as part of a client’s criminal record the time requirements for re-opening that youth record should be double checked.

A record suspension (formerly a pardon) allows people who were convicted of a criminal offence, but have completed their sentence and demonstrated they are law-abiding citizens for a prescribed number of years, to have their criminal record kept separate and apart from other criminal records.

The waiting period for a record suspension is 5 years for all summary conviction offences and to 10 years for all indictable offences.

Individuals convicted of sexual offences against minors (with certain exceptions) and those who have been convicted of more than three indictable offences, each with a sentence of two or more years, are ineligible for a record suspension.

c) Record suspension

A record suspension (formerly a pardon) allows people who were convicted of a criminal offence, but have completed their sentence and demonstrated they are law-abiding citizens for a prescribed number of years, to have their criminal record kept separate and apart from other criminal records. The waiting period is:

• 5 years (after the sentence is completed) for a summary offence (or a service offence under the National Defence Act).
• 10 years (after the sentence is completed) for an indictable offence (or a service offence under the National Defence Act for which you were fined more than $5,000, detained or imprisoned for more than 6 months).

The Parole Board of Canada (PBC) charges $631 to process a record suspension application (certified cheque, bank draft or money order, payable to the Receiver General of Canada). You are also responsible for additional fees related to getting the following: fingerprints, copy of your criminal record, court documents, and local police record checks.