Youth Criminal Records: The Basics

The Youth Criminal Justice Act is an extensive piece of Federal legislation.^[1] It has been in effect since 2003 and it governs the prosecution of youths charged with criminal offences.

Criminal records, sentencing principals, and youth criminal procedure can become complicated for experienced legal counsel, let alone a self-represented accused. This article is meant to speak in general terms and is not intended to act as legal advice. Rather, it is a starting point which discusses the meaning and possible impact of youth criminal records.

Questions and Answers:

1) Who may view a youth criminal record?

Generally, the public may not obtain information which can identify a youth record without making an application to court.^[2] The record is not public knowledge. However, a variety of people and agencies create certain records in dealing with the prosecution of youths and these people and agencies have access to youth records for specific purposes.^[3] Individuals who may be entitled to view youth records include, but are not limited to: the victim, the accused, peace officers, agencies involved in criminal proceedings or sentencing, and a person carrying out a criminal record check on behalf of the federal, provincial, or municipal government for employment purposes. These people or agencies may only obtain access to a youth’s record during the “access period” and for limited purposes.

2) When is the youth criminal record sealed?

Youth records are only accessible during the “access period”.^[4] Typically, if extrajudicial sanctions are implemented, the access period is 2 years from the completion of the sanction. The access period is generally 3 years from the completion of a sentence for a summary conviction offence. For an indictable offence, the youth record usually exists for 5 years from the completion of the sentence. After the access period has expired, youth records and any agency’s record of a youth are to be sealed.

3) Can the record be unsealed?

If the youth is not convicted of another criminal offence during the access period, the record cannot be unsealed except through an application to court.^[5] If the court is satisfied the person seeking the record has a valid and substantial interest in the record, it is necessary for the proper administration of justice and disclosure is not prohibited under any other legislation, it may be unsealed. Youth records may be used for possible research or statistical purposes.^[6] Youth records may also be unsealed and viewed by the convicted youth any time after the expiry of the access period.^[7]

4) Is the record destroyed?

After the access period, no record kept by any agency or person may be used for any purpose that would identify the young person to whom the record relates.^[8] The records kept by the person or agency, in their discretion, may be destroyed or transmitted to the Librarian and Archivist of Canada. All records held by the RCMP shall be destroyed after the access period ^[9] or, if the Librarian and Archivist of Canada requires the record, it may be transmitted to the Librarian and Archivist of Canada after the access period. The RCMP shall remove the records from its automated criminal records retrieval system after the access period.^[10]

5) What are the consequences of having a conditional discharge as a youth?  Is there a benefit to receiving a discharge versus a conviction as a youth if the record is going to be sealed in any event?

Where a youth receives a conditional discharge as opposed to a conviction, the access period is typically 3 years from the finding of guilt compared to 3 years from the end of a sentence for summary conviction. The access period would be shorter for the discharge as it runs from the date of the conviction rather than the end of sentence.

6) Who has access to the record when a youth becomes an adult?

The key point to remember is the access period and not the age of the offender. Regardless of age, after the access period has expired, and if no other convictions have been entered during this period, essentially no one will have access to the record unless the record or portions of it have been mistakenly released or kept by one of the agencies or individuals who were involved in the youth criminal proceedings. This would run contrary to the provisions of the Youth Criminal Justice Act.

7) Does an individual with a past youth record have to disclose it? What about a discharge?

If a youth is asked about a criminal record after the access period, they can answer “no”. The youth record exists but may not be used or seen by almost anyone. The sealed youth record is not an adult “criminal record”. Legal commentary on the subject suggests that a person may honestly answer that they do not have a record after the passing of the access period. Of course, the particular wording of a questionnaire relating to past criminal records and/or charges must be reviewed in each instance. A record of a conditional discharge will be retained and available in the same fashion except with a shorter access period.

Note: The Youth Criminal Justice Act sets out the general lengths of access periods for various scenarios:^[11]

• If extrajudicial sanctions are applied – 2 years from the completion of sanction.
• If acquitted of the offence (other than not criminally responsible) – 2 months from the appeal period and 3 months from the completion of proceedings if appealed.
• If charge is dismissed for any reason other than an acquittal, being withdrawn, or found guilty and reprimanded only – 2 months from the dismissal, withdrawal or finding of guilt.
• If charge is stayed – 1 year from the stay, if no further proceedings are taken.
• If guilty and with absolute discharge – 1 year from the finding of guilt.
• If guilty and with conditional discharge – 3 years from the finding of guilt.
• If guilty of summary conviction offence – 3 years from the end of the sentence.
• If guilty of indictable conviction offence – 5 years from the end of the sentence.
• If during the access period, convicted of a summary offence while still a youth – 3 years from the end of that sentence.
• If during the access period, convicted of an indictable offence while still a youth – 5 years from the end of that sentence.
• If during the access period, convicted of an offence as an adult, the youth record is dealt with as an adult record.

Exceptions apply for certain charges.