DEFINITIONS – Criminal Act, Record, and Conviction
But first – Let us begin by trying to define some basic concepts by asking a few simple questions: What is a criminal act? What is a criminal record? What is a criminal conviction?
The idea of what constitutes a criminal act, a criminal record, and a criminal conviction is a many-sided equation. This is especially true when comparing Canadian and U.S. legal systems.
Normally a criminal act is thought to be conduct whereby someone violates a law set forth by a governing body resulting in that person being punished by the laws of the same said governing society. Simply enough, right?
It is until you consider all the wide variations of what these different governing bodies think of as the bases for their laws.
Often too, it is hard to understand exactly what these legal differences are, especially when you are dealing with different enforcement and court agencies from different municipalities, provinces, or states, not to mention different countries.
For example, someone in Canada or the United States who breaks the speed limit has broken a law but is not considered to have a criminal conviction, even though they may have a “record” of the same with the Provincial or State Motor Vehicle authority where the offense took place.
On the other hand, someone who is convicted of impaired driving (DWI/ DUI) offense or refuses to give a breath sample has a criminal conviction and a criminal record both with the municipality, provincial, or state authority and, again, with the federal government.
The Canadian charge – whether it is pardoned or not – will not normally mean you are denied access to the United States as, strangely enough, this conviction is normally not enough to have you barred from entrance there. The exception to the rule is where there are numerous convictions (usually three or more) and the U.S. official reviewing the matter decides to deny entrance because he believes the person constitutes a risk to the “better interests and welfare “ of the American public. Such circumstances constitute an on-site judgment call and that officer has the power to do just that. On some U.S. border crossings, it seems one such conviction is grounds for inadmissibility but for the most part, it rarely happens and only when the person in authority is either unaware of the law or is having a bad day.
Conversely, the same offense committed in the United States by an American is exclusionary grounds for entering Canada. Then, whoever committed the crime will have to be granted what is known as a Canadian Ministerial permit before being allowed to enter Canada.
With that example in mind, it should be noted that while the two countries have very similar laws and often times similar sentencing procedures there are also often times many differences between the two systems and how they are interpreted. Those differences, though sometimes appearing to be minor can be substantial, especially if the matter is not clearly defined. More about this later.
FEDERAL ACTS
When considering a Canadian Criminal Record Suspension or a U.S. Waiver of Excludability the various criminal records that are usually violations to be taken under consideration are convictions, which include the breaking of the law under the acts listed via any of Canada’s laws such as:
• Criminal Code of Canada
• National Defense Act
• Narcotic Control Act
• Food and Drugs Act
• Customs Act
• Excise Act
• Income Tax Act
• Bankruptcy Act
• Unemployment Insurance Act
The variations within these acts and the laws therein are multiple and too numerous to mention here. When you are trying to figure out what it is you were convicted of or what there may be a record of – when in doubt – the best idea is to seek out such information by making a formal request to the Canadian Police Information center C.P.I.C. to see exactly what is listed as being part of one’s profile. This is the bases for the next question ”What is the Canadian Police Information center also known as C.P.I.C.?
CANADIAN POLICE INFORMATION CENTER (C.P.I.C.)
In Canada there exists a national record storage system containing hundreds of thousands of criminal records with information dating back over several decades. This storage system is a computer database located in the R.C.M.P. Canadian Police Information Centre in Ottawa, Ontario, commonly known as C.P.I.C. (The American equivalent operated under the auspices of the U.S. Department of Justice is referred to as the National Crime Information Center. It is located in Virginia also known as N.C.I.C .) In truth, there are a multitude of similar systems throughout Canada and the United States that are often used for cross reference but for our purposes, these two are the ones we want to think about foremost.
For the most part, whenever a crime is committed and/or a conviction of the same is rendered the particulars along with fingerprints are sent to Ottawa and entered into the system. This information includes sometimes even just the arrest, the actual convictions, the sentencing and satisfaction of the same as well as information concerning absolute and conditional discharges. It also contains other data concerning outstanding warrants and even particulars of situations where, for example, charges were stayed or withdrawn. This information is also usually reserved at the local police department in the district you were charged.
The need for such a system is fairly obvious. Not only does it allow various government agencies to conduct inquiries relating to criminal activity within the country, but also lets them conduct these inquiries quickly and efficiently through one central location if, and when the need arises.
Additionally, C.P.I.C. allows analysts to conduct research on criminal behavior. Such research efforts can then hopefully gain a better understanding of the trends that may or may not exist in Canadian society and presumably act in a positive way to the information to deal with various judicial needs in an orderly and timely fashion. These studies are possible because C.P.I.C. records are available to a wide variety of organizations on a day-to-day basis. (Like it or not that orderly and timely fashion incudes operations in the U.S.A.)
Many police forces throughout Canada have access to C.P.I.C. via their own computer systems to the Ottawa site. Even the officer walking the street or patrolling in a police car can have an individual check done in a matter of seconds simply by accessing a local record check via the information provided on an individual’s driver’s license.
Similarly, other agencies usually, based on reciprocal agreements, can appropriate the same information by asking the R.C.M.P. to conduct a search on a given individual. Such groups, to mention only a few, are the United States Federal Bureau of Investigation, the U.S. Department of Justice as well as U.S. Homeland Security and Border.
When they make that inquiry what they are looking for is to see if there is a criminal record associated with a name so given, the number of convictions thereof, the type of offense under consideration, and the seriousness associated with the same.
TYPES OF CANADIAN CRIMINAL OFFENSES AS DEFINED BY DEGREE OF SERIOUSNESS (Summary, Indictable, Hybrid)
For our purposes, please note: in Canada that there are basically three types of criminal offences. They are defined as summary, indictable, and hybrid.
In a nutshell, a summary offence is the least serious description and carries with it smaller penalties. Indictable offences are the most serious and therefore, carry harsher penalties. Hybrid offences are offences that can be tried either as summary or indictable offences with the criteria for sentencing for this category wide-ranging.
The decision as to how the hybrid offence is to be tried is usually made by a Crown Prosecutor. How the Crown Prosecutor decides to try the offence depends upon a number of factors such as:
1. the circumstances under which the offence was committed,
2. whether or not the accused is a repeat offender,
3. whether or not the accused seems remorseful and whether or not he/she is willing to consider an immediate guilty plea so as to save time, money, and the aggravation of not coming to a speedy conclusion as fast as possible.
It sometimes seems to us the sentencing criteria are often more than a bit subjective depending on the individual prosecutor’s point of view of what constitutes his/her interpretation of the law. And – believe it or not – it can also depend on the political makeup of the province one is being tried in. A left-wing government is usually more lenient whereas a conservative government will be far more demanding of a harsher sentencing. In our estimation it is subject to many a misunderstanding on occasion due to what the various parties believed was being noted as to the “seriousness “ of the offense. This seems especially true in cases where the sentence falls into the hybrid category.
ABSOLUTE AND CONDITIONAL DISCHARGES
Equally confusing and often misunderstood are situations whereby the “ sentence “ is rendered in what is known as an “absolute” or “conditional discharge”. In cases where an absolute or conditional discharge is given, the idea is understood there will be no conviction IF the terms of the sentence are carried out without violation.
With an absolute discharge, this is intended to mean that one year after the sentence has been completed without incident – particulars of the issue will be deleted from the system. In the situation whereby one faces a conditional discharge sentence the same said particulars are discharged after three years.
This is correct to a point. However, whereas there may be no conviction there certainly can still be a record and it continues to be so until it is taken out.
At that point – where the sentence has been satisfied – the record is then supposed to be deleted from the system. Great care needs to be taken to make sure it is properly purged when the time to do so is granted. Although the R.C.M.P. are supposed to “automatically “ purge their system of these discharges in more than a few cases we have found the information to be still registered at the Canadian Police Information Center after it was supposed to have been deleted. In other words – make sure you know exactly what is in the system and do so at the earliest date possible, especially, if it has any future possibility of impacting upon your life.
Added to this way of thinking is the idea it is often difficult to remember exactly how the courts dealt with your offense when it happened. Many times, the only way to find out what transpired is to get a copy of the original court record and determine what section of the criminal act you were tried under and how they saw fit to pass the sentence. Many times in the past we have found the confusion relating to the different types of offences has been the cause of serious misunderstandings, especially, to individuals who may have honestly believed that a prior conviction was treated as an absolute or conditional discharge. Much to their surprise a search comes back only to find the offense has been registered as a summary offence or even an indictable conviction. Often even the subject’s lawyer may not be clear on what section of the criminal code the charges were laid or how the charge was actually set forth. Needless to say, it pays to be very careful with this type of investigation as the fallout from such a mistake can be a serious one.
And when it comes to misunderstandings here is a big one.
Please be advised – the U.S. Customs & Border Protection authorities do not identify with the idea of absolute or conditional discharges being non-convictions, regardless of how they are defined by Canadian law. In the United States, they are still considered a criminal violation and part of a criminal record, regardless of Canadian law purge policies.
One might think of it this way: ” First there is a record. Then there is no record. Then, there is.”
If you are not sure about this, you are in good company. An absolute or conditional discharge that does not exist can still have more than a devastating effect, especially if you are of the idea it is supposed to have been erased and it isn’t. Or you are traveling to the U.S. and you inform the United States border official there, yes, you had an arrest and a fine for pot but it was discharged. Therefore, there is no conviction. Believe this – you are about to advised otherwise and that your trip to the U.S. is now about to be put on hold. Please feel free to get in touch if you think you need better clarification of the same.