What is a Criminal Record?

A criminal record shows any criminal convictions that an individual may have. An individual must have been arrested, charged and convicted of an indictable or hybrid offence for the offence to be shown on the criminal record. Notably, fingerprints must be taken and submitted to the National Repository for there to be a criminal record. The Identification of Criminals Act outlines when the police may take fingerprints and often unless authorised by statute, they are not permitted to do so for summary offences only. Therefore, if fingerprints were taken and submitted then a summary offence may also appear on a criminal record.

Types of Certified Criminal Record Checks:

There are three main types of criminal record checks, each of which will be discussed below.

Employment and Volunteer Record Checks:

There are a few different types of checks that an employer can conduct. The main check is a police check. These checks can disclose a conviction, any relevant youth information, non-expired absolute or conditional discharge information, pardons, and any relevant non-conviction information. Another type of check is the provincial government check. These checks will disclose convictions, relevant youth information and non-expired absolute or conditional discharges. Federal government checks will disclose more information including convictions, relevant youth information, outstanding charges, non-expired absolute or conditional discharges, and non-conviction information. Police Reporting and Occurrence System (PROS) users and private or volunteer industries generally conduct a check that will disclose a conviction and any active absolute or conditional discharges.

Vulnerable Sector Record Checks:

Vulnerable sector checks generally conducted by employers in private industries or volunteer employers, will disclose conviction information, pardons, and any non-expired absolute or conditional discharges. Provincial government employers checks will generally disclose information on convictions, pardons, youth information and active absolute or conditional discharges.

Immigration and Travel Record Checks:

There are four main application types of checks done for immigration and travel.

  • Permanent Resident Status: These checks will often be conducted when applying for permanent residence. They disclose any convictions, outstanding charges, non-expired absolute or conditional discharge information, immigration information and non-conviction information.
  • Canadian Citizenship: These checks will often be done when applying for Canadian citizenship. This check will disclose any convictions, non-conviction information, outstanding charges, youth information, active absolute or conditional discharge information and immigration information.
  • Visa/ Border Crossing/ Foreign Travel/ Work: This is a basic check done that typically discloses any information on convictions. If you’re concerned about cross‑border travel, especially to the United States, see whether you can travel to the US with a criminal record.
  • Free and Secure Trade (FAST) Program: This check will disclose immigration information and conviction information.

Other Purposes:

Checks may be conducted for other purposes such as:

  • Adoption: This check will disclose pardons, convictions, and active absolute or conditional discharge information.
  • Name change: If you have a criminal record then the record will be linked to your new name.
  • Criminal record check for personal use: This check will disclose convictions, relevant youth information, outstanding charges, pardons, absolute or conditional discharge information, sequestered information and non-conviction information.
  • Checks for record suspension information: This check discloses information specifically related to suspensions or pardons.
  • Checks for active criminal record information: This check discloses information of relevant youth information, outstanding charges, convictions, active absolute or conditional discharges, and non-convictions.
  • Record suspension application: A check will be conducted for a record suspension application. This check will disclose convictions, outstanding charges, active absolute or conditional discharge information and non-convictions.
  • National Sex Offender Registry: This is when the CCRTIS confirms information in the National Repository of Criminal Records matches with our name and date of birth.
  • Other specific reasons: These checks generally disclose convictions and active absolute or conditional discharge information.

What effect will a discharge have on my criminal record?

A discharge is not a criminal conviction in Canada. Rather, it is a sentencing measure that will allow an offender to avoid a criminal record after you have been found guilty of a criminal offence. However, it does not mean that it will not show up on your record at all. After being granted a conditional discharge, it will show up on criminal record checks for a period of three years. If you have been granted an absolute discharge it can show up on your record for a period of one year. However, note that after the three years or the one year has elapsed (depending on the discharge that you received), the fact that you were charged and discharged from an offence can still appear on some enhanced record checks. In order to eliminate all record of your charges and discharges, you will have to obtain a criminal pardon.

The Effect Of A Discharge On Your Ability To Travel To The United States

While a discharge is not a criminal conviction, it is still a finding of guilt that may impact your ability to travel depending on the nature of the offence that you commit and the type of discharge that you received. Specifically, you may not have trouble traveling to the United States if you have received a conditional discharge of a fairly minor offence like mischief, simple assault, or impaired driving. However, if you have received a conditional discharge for excludable offences like crimes of moral turpitude or drug offences, you may not be able to enter the United States without a Waiver of Inadmissibility. Crimes of moral turpitude that will render you inadmissible include offences like assault with a weapon, theft, fraud, burglary and prostitution.

A Waiver of Inadmissibility is an application that can be made before travelling to the United States if you have been convicted of or discharged from an excludable offence. If your application is successful, you will be granted temporary admission to the United States notwithstanding your criminal record or record of a discharge. However, note that there is a fee associated with this application, and the time to make and process the application can be quite lengthy. If you need to travel to the United States and have a conditional discharge, contact our office and we can help you determine whether you will need a Waiver of Inadmissibility and help you apply for the waiver if needed.

However, unlike a conditional discharge an absolute discharge is not viewed as a conviction in the United States. As such, if you have been absolutely discharged from your offences, your ability to travel to the United States may not be impeded.

Can I travel to the US if I get a criminal record?

Criminal convictions for certain offences will affect your ability to travel to the US. The offences which will result in your exclusion from the US are commonly known as crimes of moral turpitude, and include murder, manslaughter, sexual assault, theft, bribery, forgery, aggravated assault, prostitution and fraud. An allegation of, or conviction for, possession of or trafficking in a controlled substance, involvement with terrorism, human trafficking or money laundering, may also result in your exclusion.

Offences which will not result in your exclusion from the US include impaired driving, breaking and entering, disorderly conduct, and common assault. Multiple convictions for offences not considered to be crimes of moral turpitude may also result in exclusion from the US. If you have a criminal record which may result in your exclusion from the US, you can apply for a temporary waiver in advance that may allow you to travel to the US, which our office can help you with. For more information about admission to the US and criminal records, consult the US Customs and Border Protection website:

https://help.cbp.gov/app/answers/detail/a_id/760/~/entry-into-the-u.s.—canadian-with-criminal-record-or-overstay,-waiver

If you are concerned about the impact that a criminal record may have on your ability to travel to the US, it is recommended that you speak with a criminal defence lawyer to explore the defences and options that may be available to avoid a criminal record.

Can I plead guilty and not get a criminal record?

As a general rule, if you plead guilty to an offence under the Criminal Code, you will receive a criminal record.

The exception to the rule is if you are granted a “discharge” at sentencing. These are granted where it can be demonstrated that it is not contrary to the public interest for you to not receive a criminal record for the conviction. Oftentimes, discharges are conditional. This means that no conviction will be entered on your criminal record. Instead, the conditional discharge will remain in the Canadian Police Information Centre (CPIC) record for three years after the completion of your probation. At that time, the record of the discharge is sealed, meaning it will no longer appear on your record.

If you plead guilty to an impaired driving offence, you will only be eligible for a discharge if you can demonstrate that you have a substance abuse problem that will be addressed through treatment as a condition of the discharge.

If you are interested in pleading guilty and making an application for a discharge, or evaluating the possibility of a resolution without a criminal record, it is recommended that you seek the assistance of a criminal defence lawyer.

Can I get rid of a criminal record?

You cannot get rid of a criminal record, but you can apply to have your criminal record set aside through a record suspension. You are eligible to apply for a record suspension after a waiting period of 5 years following a summary offence, or 10 years following an indictable offence.

You cannot apply for a record suspension if you have been convicted of a sexual offence involving a child, or if you have been convicted of more than three indictable offences with respective sentences of two years or more. These convictions may also trigger obligations under the Sex Offender Information Registration Act (SOIRA). Learn about seeking removal from the Sex Offender Registry.

Your record suspension may be revoked if you are convicted of a new offence, if you are found to not be of good conduct, or if you are found to have misled the Parole Board during your application.

For further details about this process, or to obtain assistance with the record suspension process, please visit the Pardons page of this website. If your charges were resolved without a conviction, you may also be eligible to have your fingerprints and police photo destroyed.

Can I become a Canadian citizen if I have criminal charges or get a criminal record?

Having a criminal record can negatively affect your chances of obtaining Canadian citizenship. However, criminal charges and criminal records may not necessarily impede your ability to obtain citizenship.

For convictions and offences outside of Canada, you may be able to overcome criminal inadmissibility by either applying for rehabilitation or by being deemed rehabilitated if a minimum of 10 years have passed since you completed the sentence or committed a crime that would be considered an indictable offence punishable by a term of 10 years or less.  For offences that, in Canada, would be considered summary offences and if you have been convicted of two or more of these offences then the rehabilitation period is at least 5 years after the sentence was served.

For convictions and offences that were convicted inside of Canada, you will need to apply for a record suspension. It is important to note that you must have been granted your record suspension before you can obtain your Canadian Citizenship.

If you fall into a situation where you have both convictions and offences outside of Canada, then you will need an approval of rehabilitation and a record suspension to overcome any issues of criminal inadmissibility.

Additionally, you may apply for a temporary resident permit. A temporary resident permit allows you to stay in Canada if it has been less than five years since your sentence ended or if there is a valid reason for you to be in Canada.

For more information visit:  https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/guide-5312-rehabilitation-persons-inadmissible-canada-past-criminal-activity.html#5312E2

Can I be deported if I have criminal charges or get a criminal record?

If you are a Canadian citizen you cannot be deported if you have criminal charges or get a criminal record.

If you are a foreign national or a permanent resident, criminal charges or a criminal record may result in your deportation.

If you are a foreign national or permanent resident and are charged with an offence (what happens when you are charged with a crime), the police will submit a report to the Canada Broder Services Agency, who may conduct an admissibility hearing before the Immigration and Refugee Board (IRB).

The IRB may, at the conclusion of the hearing, issue a deportation order. Permanent Residents may be deported if convicted of a “serious crime,” meaning an offence where, under criminal sentencing in Canada, the maximum sentence is 10 years or more in prison, or if the actual sentence received is greater than six months in prison. A foreign national may be deported if convicted of a “serious crime,” a less serious crime, or two minor offences stemming from separate events.

If you are concerned about the impact that a criminal record may have on your immigration status, it is recommended that you speak with a criminal defence lawyer to explore the defences and options that may be available to avoid a criminal record.  It is further advisable for you to consult with an immigration lawyer regarding the impact any potential outcome to your charges may have on your status in Canada.

How will a criminal record affect me?

A criminal record will affect your life in numerous ways. Certain employment and volunteering opportunities are not available to people who have a criminal record. This is particularly true of any jobs working in a position of trust, in healthcare, or with vulnerable individuals or children.

A criminal record may also impede your ability to travel, as certain offences will bar entry to certain destinations. Your ability to obtain travel, study, or work permits may be negatively affected depending on the nature of your conviction and the country to which you are applying.

This is also true of applying for citizenship or immigration abroad. If you are in Canada pursuant to a study or work permit, or as a permanent resident, a criminal record may affect your eligibility to remain in Canada, or to apply for Canadian citizenship.

If you are concerned about the impact that a criminal record may have on your life, it is recommended that you speak with a criminal defence lawyer to explore the defences and options that may be available to avoid a criminal record. You may also need to consult with an immigration lawyer to better understand how a criminal conviction would impact your status.

Will I get a criminal record for my charges? How do I resolve my case with no criminal record?

If you have been charged with a criminal offence (typically a Criminal Code or Controlled Drugs and Substances offence) you will get a criminal record if you are convicted, either after trial or pleading guilty. Of course, if you win the case at trial you will not have a criminal record.  But you don’t always have to take the case to trial to avoid a criminal record.

The best way to avoid a criminal record for your criminal charges is to convince the prosecutor to withdraw the charges completely. The primary considerations from the prosecutor’s perspective are whether there is a reasonable likelihood of conviction (see what needs to be proven before a conviction), and whether it is in the public interest to pursue a prosecution. Establishing a problem with the likelihood of conviction requires a legal analysis.

For example, if we can identify a clear problem with the prosecutor’s case (like a witness dying or moving away), that would present a sufficient problem to negate the likelihood of conviction.  Convincing a prosecutor that there is no public interest in prosecuting a person requires more of a common sense approach.

For example, one of our cases involved a husband who had threatened his wife. The wife reported the threat to the police and the police issued a warrant for the husband’s arrest. Neither the husband or wife knew about it, and had since parted ways amicably and resolved all outstanding issues. The husband was arrested during a traffic stop, but when the matter went to court, we successfully convinced the prosecutor that the matter had already resolved itself and there was no public interest in prosecuting the husband.

Even when the charges are not withdrawn, there are still several opportunities to resolve the matter without a criminal record, including:

For a detailed summary of the many ways a criminal record can be avoided without going to trial, please visit the Resolutions page, and the Sentencing page of this website.