As a Toronto criminal lawyer dealing with adults and youth, I get all kinds of questions. But probably the most common questions I receive from clients across the map are:
- Am I going to go to jail?
- Will I have a criminal record?
The answer to the first question usually isn't too complicated. I know pretty early from the disclosure and from the Crown's initial position whether or not prison will be on the table. For minor offences, for the most part, jail time is not a real threat.
The answer to the second question is more complex. So how can you avoid a criminal record and preserve your future opportunities?
What is a criminal record, and why is it so bad?
A criminal record is exactly what it sounds like: it's a piece of paper that has been uploaded by the government into their computer systems that shows your criminal convictions. But that piece of paper is powerful.
The criminal record lists every conviction (formal finding of guilt) you've ever received as an adult. A criminal record can be a bit of a "scarlet letter" as employers can run background checks on you before they hire you. During their background check, they may discover your previous criminal convictions, and refuse to hire you.
Having a criminal record can also prevent you from working in certain industries with vulnerable individuals such as children, the elderly, or recent immigrants. It can present difficulties with travelling to other countries. It can also prevent you from renting or buying homes. In many ways, it can prevent you from being free.
How do Youth Criminal Records work?
Youth offences operate differently in Toronto and Canada. There are no convictions. There are only informal findings of guilt.
So, if you commit an offence as a minor in Toronto, the Youth Criminal Justice Act (YCJA) often allows for resolutions that don't carry lifelong consequences. "Extrajudicial measures," like community programs or counselling, may be available to avoid formal charges.
The "countdown" period under the YCJA
If there is a finding of guilt for a youth offence, there is a countdown period that begins.
Contrary to what many people believe, the expiry of your record does not magically take place at age 18.
If you were found guilty of a less serious (summary) offence, you have to wait 3 years after your sentence is complete for your record to be "sealed" forever. So if you were 17 when you were found guilty, that means your record will be sealed at 20.
If you were found guilty of a more serious (indictable) offence, you have to wait 5 years. So, if you were found guilty at 14, your record will be sealed at 19.
Barring extraordinary circumstances, no one can ever see you committed an offence as a youth once your record is sealed. The idea is to let kids have a fresh start in life.
The exception to the countdown period
Hold on a sec, this is not a get out of jail free card.
If you commit another offence while the countdown period is taking place, and at the time you are already an adult (i.e., you have turned age 18), there is a chance your adult record will be "joined" with your youth record. This means your youth record will remain unsealed indefinitely and turn into an adult record.
There are also certain serious circumstances in cases of national importance or with extremely aggravating facts where youths are tried as adults. But we'll leave that for another article.
So, how do I avoid getting a criminal record as an adult?
A lot of it comes down to basic math.
Crowns are overworked. They are skilled lawyers, and many of them are friends of mine, however, they can only handle so much. Many Crowns have several hundreds of cases they are dealing with at a given time, sometimes as many as 300, 400, or above.
There are only so many days in a year, and there is a time limit. They need to take all cases to trial within 18 or 30 months, depending on the severity of the offence. That simply isn't possible in practice. The Crown cannot take 300 cases to trial within 30 months.
Which means, no matter how much the Crown attempts to dig in their heels and say they will go to trial, ultimately we know they will not do this for every case. We can try to either capitalize on their non-responsiveness and hope to get it dismissed, or, we negotiate a plea deal or withdrawal to get the case off their roster, before trial.
There's another factor too. The Crown is part of a system of state actors and supervisors who control their policy and position in the government. If they make bad decisions or get chastised by judges for not acting in the public interest, that looks bad to their superiors. For this reason, Crowns are often reluctant to take cases with poor evidence to trial.
Furthermore, you can sweeten this deal by doing "upfront work", volunteering, counselling, educational courses, all establishing you are showing remorse and positive action in your community. That signals to the Crown you are acting in the public interest and therefore, convinces them a judge would sentence you favourably.
Resolution Options
There are several avenues of resolution, depending on the type of offence, your history, and how the Crown approaches your case.
Assuming the offence is minor (for example, non-domestic simple assault, theft or mischief under $5000, threats and harassment, obstruction, etc.) and there is nothing else on your record, in most cases I am able to help you to avoid a record entirely.
- A withdrawal is exactly what it sounds like: the Crown decides not to proceed with charges, and "drops" them because they don't have enough evidence to proceed or to proceed would be a waste of court resources.
- A diversion is how many withdrawals are achieved. A diversion allows you to complete certain conditions, such as community service or counselling, instead of having a conviction entered. In exchange, the Crown agrees to withdraw.
- A peace bond is a court contract and may involve conditions like staying away from certain people or places. While it's not a conviction and can often be a great resolution, breaching a peace bond can have serious consequences.
- Discharges also allow a case to be resolved without a conviction but may include specific conditions that must be met, and importantly these still have an informal finding of guilt.
The Crown may also dig in their heels. Sometimes, they won't settle. This is particularly true recently for sexual assaults and domestic violence or "IPV" cases.
One last note. If you happen to be unfortunate enough to get a criminal record, there's still hope. You can apply to Pardons Canada, and, as long as you keep your nose clean, they are generally quite lenient about approving pardons. Once you are pardoned, your adult record is sealed much like a youth record.
Avoiding a criminal record isn't just about convenience, it's about protecting your future.