May 5th, 2021 | Sterling

A Conviction Is Not The Same as a Criminal Record

A candidate declares a conviction for refusing to provide a breath sample, his driver’s abstract reflects this fact and yet, there is no conviction found. Historical media coverage on the internet reveals that an employee was convicted of an indecent act and served a term of probation – but there’s no criminal record anywhere. Organizations ask: “What’s going on? How could this be missed?” They might conclude: “The screening process has failed to work” or “The process can’t be relied upon.”

This month’s blog describes some of the moving parts that can factor into such missing information situations to help understand why these unusual outcomes can occur from time to time. Once understood, organizations will appreciate that a comprehensive approach to screening – one that incorporates multiple information sources – is a wise investment.

What is a Criminal Record?

When we refer to criminal records in the Canada, the National Repository as maintained by the RCMP is the authoritative source. It’s only possible to have a criminal record if the person has been fingerprinted. In other words, a person can have a conviction for a criminal offence but not have a criminal record. Here’s how that works:

  • Canada has a law that creates the authority under which police may take the fingerprints that are required to support a criminal record. This law is the Identification of Criminals Act. The Act does not compel the police to take fingerprints – instead, it provides the authority to do so. This distinction is important when attempting to understand what can occur in specific cases.
  • Also, the Identification of Criminals Act does not include an authority to take fingerprints for summary conviction (minor) criminal offences. These types of convictions are not normally found on a criminal record and are only discoverable through a search of local police information (LPI). (Offences like causing a disturbance, obtaining food or lodging by fraud and public nudity are a few examples of summary conviction offences.)

    The Identification of Criminals Act does not direct the police as to what they must do with fingerprints once taken. The only law in Canada that compels police to send conviction information (fingerprints) to the National Repository is the Youth Criminal Justice Act.

  • Lastly, many offences in the Criminal Code of Canada are what are known as hybrids. This means they can be prosecuted by way of indictment or by summary conviction and it is the Crown that decides how to proceed. When a decision is made to proceed summarily, the police lose the opportunity to fingerprint if they have not already done so. Examples of hybrid offences include impaired driving, theft and common assault.

Criminal Records vs. Criminal Conviction

So, a precise definition of a criminal record in Canada is as follows: An individual arrested, charged with or convicted of an indictable offence, has had his/her fingerprints taken under the authority of the Identification of Criminals Act and the police service has sent them to the RCMP for inclusion in the National Repository.

A proper definition of a criminal conviction in Canada would be: An individual was arrested or otherwise compelled to court, charged with an indictable or summary conviction offence. Fingerprints may or may not have been taken due to police discretion, omission, or because there was no authority to do so. The individual was convicted of the offence(s) and a record of that conviction may or may not be retrievable from local police information (LPI).

Note that a criminal record is a record consisting of one or more criminal convictions but a criminal conviction is not necessarily a criminal record. This matters because if you ask an applicant whether they have a “criminal record,” you will receive one of two responses:

  • “No.” This applicant knows that they have never been arrested for, charged with, or convicted of a criminal offence.
  • “Yes.” This applicant knows they have been convicted of a criminal offence. What they might be less clear about is whether that conviction forms part of a criminal record.

Note that unless being criminally fingerprinted by the police is a routine occurrence in an individual’s life, people typically remember the experience very clearly. So, upon probing further by asking: “Were you fingerprinted by the police?,” if the answer is “No,” then the lack of a conviction in the National Repository is explained.

So, using the two scenarios I described at the beginning, let’s examine some possibilities.

The applicant convicted for refusal to provide a breath sample was stopped at a roadside and was read a demand to provide breath samples. The individual refused to comply with the demand and his car was impounded thus preventing continuation of the offence. The police were able to confirm his identity so there were no other grounds to arrest the individual or hold him for court. He was issued with an appearance notice with a court date to answer to the charge and this form may stipulate a requirement to be fingerprinted. It is up to the police to make this stipulation and to enforce it.

The employee who was subject to historical media reporting for having been convicted of indecent acts committed those offences in the 1990’s. At that time, indecent act was a summary conviction offence and was not one for which police had authority to fingerprint. In this case, the employee had a criminal conviction but not a criminal record. Any records associated to that conviction reside at the local police level and may or may not be discoverable through a screening process – whether through a third party or even directly with the police service that investigated the offences. Given the passage of time and varying records retention practices, the case file associated to conviction could well be destroyed.

Sterling Backcheck’s Expertise

Sterling Backcheck’s clients benefit from many differentiators. An important one is our ability to assist clients with these vexing and unusual scenarios when they occur. We provide sound analyses based on real-world expertise giving our clients confidence that they have a trusted advisor working for them. To find out more about our expertise in criminal background checks and compliance, download a copy of our eBook, Background Screening 101.

This content is offered for informational purposes only. First Advantage is not a law firm, and this content does not, and is not intended to, constitute legal advice. Information in this may not constitute the most up-to-date legal or other information.

Readers of this content should contact their attorney or lawyer to obtain advice concerning any particular legal matter. No reader, or user of this content, should act or refrain from acting on the basis of information in this content without first seeking legal advice from counsel or lawyers in the relevant jurisdiction. Only your individual attorney or legal advisor can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this content does not create an attorney-client relationship between the reader, or user of this presentation and First Advantage.

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