Area of Law: Criminal Record Erase it and Start Fresh
Answer # 2106
Steps involved in creating a criminal recordRegion: Ontario Answer # 2106
Criminal records are created through a process involving different people, places, systems, and rules.
1. Charged by the Police
The first step in creating a criminal record involves an individual being charged with a federal offence. The local police usually lay the charges. Being charged means that the person has been accused of committing a specific offence under a federal law. Each year, more than half a million people in Canada are charged with a federal offence, almost all of which (94%) are under the Criminal Code. Other federal laws under which someone may be charged include, the Controlled Drugs and Substances Act, the Income Tax Act, the Excise Act, the Food and Drugs Act, the Customs Act, or the Immigration and Refugee Protection Act.
2. Incident Records and Occurrence Reports
After a charge is laid, the charging police service will create incident records and generate an occurrence report using their record management system. Among other things, an incident record could include a host of fragmented information about the accused, such as police notes, newspaper clippings, letters, as well as information about the complainant, the victim, and any witnesses. An occurrence report is a formal report based on incident records. Each year, Canadian police services create an average of about 2.5-million occurrence reports.
3. Fingerprinted and Photographed
After the individual is charged, the police will take the person’s photographs and fingerprints, pursuant to the Identification of Criminals Act. The exemption to this procedure is if the person is charged with a ‘strictly’ summary offence, which is the least serious type of offence. There is currently no legislation that gives police the power to fingerprint or photograph individuals charged with strictly summary conviction offences.
As previously mentioned, this means that these types of offences cannot be reported to the RCMP for inclusion into the Identification data bank. Some examples of strictly summary conviction offences in the Criminal Code include, indecent act, being found in a common bawdy house, and loitering.
Practically speaking, the police often charge individuals with more than one offence. Since fingerprints can be taken for most offences, by laying more than one charge, the police will be able to take fingerprints for at least one of the charges. This means that even ‘strictly’ summary offence conviction records can be included in the RCMP Identification data bank, where the charging police have taken fingerprints for a different offence.
4. Court Record
Next, the court is generally notified of criminal charges in one of two ways: when an Information or Indictment is filed with the court for consideration by a judicial official or when a person is arrested and brought before the court for a bail hearing (judicial interim release). The police will provide a hard copy of their records to the court. Court staff will use the person’s name, date of birth and detailed charging information to create a criminal record for their own uses. After that, the charging police service and the courts will request information from each other and update one another as the case proceeds towards a final outcome – be it conviction or non-conviction. The police often have access to the court computer system in order to keep apprised of upcoming court appearances, but they do not have the ability to alter the data.
Categories of offences:
- ‘Strictly’ Summary offence: is the least serious type of offence, and the police cannot take fingerprints.
- Hybrid offence: is the most common type of offence. With these offences, the prosecutor can decide to prosecute as an indictable offence (the most serious type of offence) or as a summary offence; and the police can take fingerprints. Hybrid offences include offences such as, theft, impaired driving offences, assault, and mischief.
- Indictable offence: is the most serious type of offence, and the police can take fingerprints. Indictable offences include such offences as aggravated assault, robbery, trafficking in cocaine, fraud over $5,000, and murder.
5. File created in CPIC and in the RCMP Identification data bank
The charging police service may then create a file in the CPIC Investigative data bank and also report the information to the RCMP for inclusion into the Identification data bank. With the exception of youth criminal records (where a final outcome has been reached), there is no legal obligation on police services to report their criminal records to the RCMP. They generally do so, however, to help share information with other police services and government agencies about crimes and criminals.
The CPIC file is then to be maintained by the charging police, and ultimately it is supposed to be removed once a disposition is made; unless, of course, there is an ongoing prohibition or probation order or the individual is released on parole.
In reporting the information to the RCMP, the police service must include the person’s fingerprint information (taken with ink or digitally). The RCMP assigns a Fingerprint Section Number (FPS Number) to the individual’s name and date of birth, and a temporary file is opened in the Identification data bank. This temporary file is only accessible to the charging police service or can often be disclosed if the individual submits to a criminal record search and provides his/her fingerprints on an RCMP C-216C form. If there is no outcome in the case, the file is supposed to be removed from the Identification data bank after 5 years, unless there are outstanding warrants related to the charge. In most cases, there is a final outcome in court prior to the 5-year period, and the information is then updated in the Identification data bank.
6. Final Outcome
After an individual is charged, he or she will often appear in court more than once. Court records will be updated to include all these appearances. During the final court appearance, the judge will make a decision. The person will either be convicted, or not convicted.
Although the charge may not result in a conviction, in any of the following cases of non-convictions, a criminal file is created both at the local police level and in the federal RCMP Identification data bank.
Non-convictions can be one of the following:
- The accused person is acquitted or found not guilty,
- The charges are dismissed or withdrawn by the prosecutor,
- The accused person enters into a peace bond; which is a legally enforceable promise to keep the peace, be of good behaviour, and obey all other terms and conditions ordered by the court for the time period stated (usually one year),
- There is a stay of proceedings; this means the court action has been suspended indefinitely or until the occurrence of a condition imposed by the court,
- The accused person is discharged (either absolutely or conditionally). This means that the individual has been found guilty but there is no conviction. In the case of an absolute discharge there is no punishment, conditional discharges, however, do carry a punishment, usually a fine payable to the court, and/or probation.
All of the above non-conviction records are accessible to CPIC network users and also will be disclosed in an RCMP criminal record search (submitted with fingerprints). This is a very important point, as most people (criminal justice professionals included) often believe that a non-conviction means there is no criminal record and/or that all files relating to the charges are automatically destroyed. That is not so. For almost all criminal records, steps will need to be taken by the individual to have his or her record removed.
If a charge results in a conviction (this means the person was found both guilty and convicted), the temporary file is updated in the Identification data bank. As with non-convictions, the temporary file of the conviction becomes permanent and accessible to CPIC network users and also will be disclosed in an RCMP criminal record search (submitted with fingerprints).
Examples of the types of punishments that can result from a conviction include:
- Probation: this is an order whereby the convicted offender must report to a probation officer for a set period of time, usually 1 year. The individual is generally required to report on a monthly basis.
- Fines + Surcharges: fines can be ordered on their own or in addition to a probation period. Fines and surcharges are payable to the court.
- Restitution / Compensation: these payments are paid to the injured parties to compensate them for their injuries. The judge may order these payments to be paid directly to the injured party; or to the court – which will then forward the money to the injured party.
- Prohibitions: this means that the individual is not permitted to do something. The most common types of prohibitions are prohibitions from driving (suspended licence) and weapons bans (e.g. carrying/possessing a firearm). Prohibition orders are often ordered together with a fine.
- Suspended Sentence: this means that the judge ‘suspended the jail sentence’. Generally, a suspended sentence is ordered together with a fine and/or probation.
- Conditional Sentence: this is a more serious form of punishment (approaching imprisonment) and usually means ‘house arrest’, with the convicted person being required to wear an electronic bracelet or have a strict schedule for leaving and returning to his or her home.
- Imprisonment: this is the most serious outcome of all and may include fines, longer probation periods, prohibitions and lifetime bans.
If the accused person or the prosecutor appeals a court decision, this new information is supposed to be recorded in the Identification data bank, along with the previous information. Since most input into the RCMP Identification data bank originates from the charging police service, and given that those services are not involved in appeals in most cases, changes to dispositions resulting from appeals are not always reported to the RCMP. It is up to the individual wishing to remove his or her record, to ensure that the information being removed is complete. For more information, refer to How to remove a criminal record.
If you have been charged with a criminal offence, refer to our criminal law section.
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