Other Issues in Criminal Matters (1:VIII)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 7, 2024.

A. Accused Suspects They May Be Charged with an Offence

An accused may have been stopped by the police or observed doing “something wrong,” but has not yet received a summons. To see if one has been officially charged, they can 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 person’s arrest, the accused must turn themself in immediately. This is a critical time for an accused to learn and note their legal rights, including the right to remain silent.

B. 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.

Any person who wishes to have a stay of proceedings entered should do so with the advice of a lawyer. Complainants should be careful with regards to what is said to Crown. If the complainant wishes to have the charges dropped, they should contact the Crown to discuss the matter. It is important to note that an accused person MUST NOT attempt to persuade the complainant to drop the charges, as to do so is a criminal offence.

C. Appeal

The accused has a right to appeal a conviction, sentence or both. Appeals must be filed within 30 days of the sentence. An accused person who believes that they have a strong case for an appeal should be referred to Legal Aid BC or the Lawyer Referral Service.

D. 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 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 and makes a court application to extend the time.

E. 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. To the courts, a criminal record is limited to criminal convictions. This includes suspended sentences, fines imposed after criminal convictions, and any form of incarceration such as house arrest (conditional sentence) or jail time. This does NOT include discharges, stays of proceedings, or withdrawn charges.

A criminal record is also sometimes 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, including 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 what they are signing when signing a consent to have their criminal record disclosed (i.e., expanded criminal record check). Often employers will simply ask; “Do you have a criminal record?”. This could be limited to suspended sentences, fines imposed after criminal convictions, and any form of incarceration. Other information would 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 section 13 of the BC Human Rights Code, RSBC 1996, c 210, makes it illegal to discriminate based on past conviction of an offence that is unrelated to the employment or intended employment of that person.

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

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

The vulnerable sector check includes a level 4 check plus any sexual offences and convictions for 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.

3. 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 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. Additionally, information that was once contained in CPIC (e.g., a conditional discharge prior to the fulfilment of the conditions), which was accessed by the American database prior to it being purged from CPIC, may not be erased from American databases. Thus, it is advisable to avoid travelling out of the country when there are any convictions appearing on CPIC and to save travel plans until those records are purged from CPIC.

Inadmissibility to the United States

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 was once contained in CPIC such as a conditional discharge prior to the fulfilment of the conditions, 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. The safest course is to avoid travelling out of the country when there are any convictions appearing on CPIC and to save travel plans until those records are purged from CPIC.

Admissibility to the US is determined in accordance with the Immigration and Nationality Act, 8 USC 1182 [“INA”]. Section 212(a)(2)(A) of the INA states that a person is inadmissible if they commit a crime involving “moral turpitude” (i.e., shocks the public conscience; see Wing v United States 46 f2d 755 (7th Cir 1931)), or violates any law relating to a controlled substance (s 102, Controlled Substances Act, 21 USC 802). A person is also inadmissible to the US if they commit two or more criminal offences whose convictions have a combined sentence of five years or more. Finally, an immigration officer can deny entry into the US if they have “reason to believe” that the individual has committed drug trafficking, prostitution, or money laundering offences.

NOTE: A conviction as defined in section 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 are considered convictions. Consult Chapter 18: Immigration Law for more information.

4. Elimination of Records

All youth criminal records become “inaccessible” after a certain period of time, depending on the nature of the offence and the sentence that is imposed (s 119(2), Youth Criminal Justice Act). However, if a person is convicted of a Criminal Code offence committed as an adult, before their youth record becomes “inaccessible,” then their youth record may be dealt with as a record of an adult, again depending on the sentence that is imposed (s 119(9)).

The time calculation under this section of the Youth Criminal Justice Act is complicated and mistakes are often made. If a Youth Record is part of an accused’s criminal record, the applicable “access period” for the youth record should be double-checked.

5. Record Suspension

A record suspension (formerly a pardon) allows offenders who have completed their sentence and demonstrated they are law-abiding citizens for a prescribed number of years to have their criminal record kept apart from other criminal records. The waiting period is described in section 4(1) of the Criminal Records Act:

• 5 years (after the sentence is completed) for a summary offence (or a service offence under the National Defence Act, excluding those below).
• 10 years (after the sentence is completed) for an indictable offence (or a service offence under the National Defence Act for which the person was either fined more than $5,000, detained or imprisoned for more than 6 months, dismissed from service, or dismissed with disgrace from service).

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.

As of January 2024, the Parole Board of Canada (PBC) charges $50 to process a record suspension application. Payment can be made by credit card through the payment form, certified cheque, bank draft, or money order, payable to the Receiver General of Canada. The applicant is also responsible for additional fees related to getting the following: fingerprints, a copy of their criminal record, court documents, and local police record checks.

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