Criminal law

The Trial

Is there only one type of record that can be opened on an adolescent?

No. Several different kinds of records may be opened on an adolescent facing an investigation or criminal charges. The most common ones are the police record, court record, judicial record, any record kept by the youth’s lawyer, and records kept by different organisations involved with the youth justice system.

The police record contains all the information collected during the investigation into a particular offence. The adolescent’s fingerprints and photograph are kept in this file, unless the offence was minor in nature.

If legal proceedings are brought against the youth, the court is authorized to open and keep a file on him. This file is commonly called a youth court record.

When an adolescent is charged with a crime, the police force that led the investigation can choose to send the file to the Royal Canadian Mounted Police (RCMP). If the youth is found guilty in court, however, the police must send the file to the RCMP. At that point, the file is known as a “judicial record” and is stored by the RCMP. The judicial record is the focus of the questions that follow in this Infosheet.

Records containing information about an adolescent might also be kept by the government and certain private organisations, among others. This is especially true if a young person has consented to extrajudicial measures or if an organisation is tasked with supervising the execution of a court judgment.

Once an adolescent is found guilty of an offence, does he have a criminal record?

Not exactly. The Youth Criminal Justice Act doesn’t use the term “criminal record” in reference to adolescents; instead, it uses the term “judicial record”. The judicial record has almost all the same legal consequences as an adult criminal record. As with adults, when an adolescent is found guilty of an offence, his record is sent to the RCMP. The RCMP keeps the record and files it in a place that holds thousands of similar records: this is called the central repository. If the youth re-offends, the judge may refer to the contents of his record in deciding how strict his sentence should be. During an investigation, the police can have access to the information contained in the record. This information may prove useful in deciding whether extrajudicial measures are appropriate.

The youth’s judicial record is confidential. By law, only a few people are allowed to see it, and only for a limited time. In addition, a youth’s judicial record will automatically be archived or physically destroyed after a certain period of time. This is in contrast to the adult system, where a criminal record will only be closed if the person in question obtains an official pardon.

When an adult sentence is imposed on an adolescent, the adult rules apply and the youth winds up with a real “criminal record”.

What does a judicial record contain?

The adolescent’s judicial record contains various details on the youth’s identity, including the following:

• his name, date of birth, and address;
  
• his physical description, photograph, and fingerprints.

The record also contains certain details about the offence for which the youth was found guilty, namely:

• the nature of the offence;
  
• the date on which he was found guilty;
  
• the sentence imposed;
  
• the date on which the record must be archived or destroyed.

Why is a record kept on adolescents who are found guilty of an offence?

The law requires that information be kept on an adolescent who has been found guilty of a crime so that there is a record of the offence itself and the sentence that was imposed.

If the youth re-offends, the court can take his past run-ins with the law into consideration. The judge can refer to the youth’s previous record during sentencing. Knowledge of prior criminal proceedings can also be considered by representatives of the justice system when they make decisions concerning release, extrajudicial measures, or the type of custodial sentence that should be imposed.

Obviously, with each new offence, the sentence is likely to be more severe. When an adolescent re-offends, it’s generally an indication that something is wrong and that rehabilitation has not worked.

What impact will a judicial record have on an adolescent’s life?

A judicial record may affect an adolescent’s life in a number of ways, particularly when it comes to finding a job. For example, the director of a summer camp for children will likely not employ an adolescent as a camp counselor if he has been found guilty of sexually assaulting a child.

Furthermore, if an adolescent with a record wants to travel abroad, he may be stopped at the border of the country he wishes to enter. This area of the law is complicated. If you have a youth record and want to travel to another country, you should make sure to speak with a lawyer before you leave.

Who has access to a youth’s judicial record?

Access to the many records kept on an adolescent is limited in order to protect the youth’s privacy. Keeping the youth’s run-ins with the law confidential favours reintegration, which is one of the main objectives of the youth justice system. This is why the judicial records held by the RCMP are not open to the general public.

The youth and his lawyer or representative are free to consult the judicial record at any time. Certain other people can also get permission to consult the file, on request and within a certain timeframe. Some of these people include the following:

• the Crown prosecutor, the provincial director (the Director of Youth Protection in Quebec), a coroner, or an ombudsman;
  
• the adolescent’s parents;
  
• the judge, the court, or any commission dealing with new proceedings against the youth;
  
• certain government employees;
  
• a police officer in charge of investigating or administering the file;
  
• the victim of the offence;
  
• the lawyer of an accused for whom access to the record is necessary in order to mount a defence (for example, if the accused adolescent alleges that he had an accomplice, that person’s lawyer can consult the accused adolescent's file and vice versa);
  
• a government organisation, during the hiring process;
  
• any other person who successfully proves to a judge that she has an interest in the matter and that accessing the file is in the interest of justice.

The period of time during which the record can be accessed will vary according to the severity of the offence.

For some offences that are violent or sexual in nature, or for those that involve the use of a weapon or the import, production, or trafficking of drugs, the file is kept for an additional period of five years. During this time, aside from the adolescent and his lawyer, the following persons may have access to the file:

• certain federal government employees, for statistical purposes;
  
• in the event of a new offence, a police officer conducting an investigation or the Crown prosecutor, if access is necessary in the context of the new investigation;
  
• all other persons who prove to a judge that they have a legitimate interest in the matter and that it is in the public interest that the record be accessible for statistical purposes;
  
• all persons who are mandated to administer the Firearms Act.

Judicial records pertaining to murder are kept for the rest of the accused’s life.

The above is an outline of the general rules regarding youth records; many exceptions apply to the access periods, to those who may be able to get hold of the file, and to the reasons for which people might be granted permission to see a file.

To find out more, read the Infosheet entitled Your private life on trial, which deals with access to the information contained in many types of records.

Is a youth’s judicial record kept indefinitely?

No. After a period of time following the end of legal proceedings, the record will no longer be accessible. It may be archived or destroyed. If, during the access period, the adolescent is found guilty of a new offence, his record will remain accessible for a longer period of time.

When an adolescent is found guilty of a criminal act, his record is closed five years after he has finished serving his sentence. In other words, if the judge imposes a two-year sentence (for example, two years probation), the adolescent can expect that his judicial record will be archived or destroyed five years after the end of the probation period, or seven years after the judge’s sentence was handed down. This is what will happen in Fred’s case, since the theft he committed was a criminal act.

For some other, less serious offences, the file is closed three years after the sentence has been served.

In exceptional cases, such as when an adolescent is found guilty of a particularly serious crime, like first or second degree murder, his record might be kept permanently with the central repository of the RCMP. In these cases, it is possible that the youth’s record will never be closed or destroyed.

If a judge imposes an adult sentence on an adolescent, the record becomes a real adult criminal record, and the youth is no longer entitled to the protective benefits provided by law.

How is the judicial record made inaccessible?

Once the period of accessibility is over, the law requires that the judicial record be permanently archived or physically destroyed. These procedures are only mandatory for records kept in the central repository.

Whether the youth’s record is archived, sealed, or physically destroyed, it is considered to no longer exist in the eyes of the law and therefore cannot be held against the youth.

What are the effects of rendering the record inaccessible?

The youth criminal justice system doesn’t want the mistake that Fred made when he was young to follow him around for the rest of his life; this is why the law gives him a chance to start over from scratch by erasing any traces of his offence.

What’s more, it is a criminal offence to violate the rules regarding access to records or to publish information that identifies the accused. People who commit such offences are subject to up to two years in prison.

1. Gendarmerie royale du Canada