I was charged as a youth so there is no risk of getting a criminal record, right? Not exactly.
In the Canadian criminal justice system it is well-recognized that young persons are to be treated differently than adults, with a particular focus on their diminished moral culpability. In fact, this is a guiding principle as set out in s.3(2) of the Youth Criminal Justice Act (“YCJA”): “the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability…”
Youth “criminal records” are a bit of a misnomer in that once a young person has completed their matter before the Court, whether by way of absolute discharge or completion of sentence or disposition, the young person is deemed not to have been found guilty or convicted. (Note that there are a few exceptions under s. 82(1)(a)-(d) of the YCJA though).
However, youth records do not immediately disappear once the matter has been dealt with by the Court. Instead, they remain accessible for a specified period which is dependent on the nature of the offence and the way in which it has been dealt with by the Court.
How long does a youth record remain accessible?
As indicated, the period of access is dependent on how the youth criminal charge was dealt with by the Court and the nature of the offence. Below is a simplified summary of the access periods as set out in the YCJA:
| Way in which matter was resolved | When access period ends | Relevant Section of the YCJA |
| Extrajudicial sanction | 2 years after the young person consents to be subject to the sanction | 119(2)(a) |
| Acquitted otherwise than by reason of verdict of not criminally responsible on account of mental disorder | 2 months after the expiry of the time allowed for taking of an appeal or, if an appeal is taken, the period ending 3 months after all proceedings in respect of the appeal have been completed | 119(2)(b) |
| Charge dismissed for any reason other than acquittal, charge is withdrawn, or found guilty and reprimand is given. | 2 months after the dismissal, withdrawal, or finding of guilt | 119(2)(c) |
| Charge stayed with no proceedings being taken against the young person for a period of 1 year | End of that 1-year period | 119(2)(d) |
| Order referred to in s.14(2) [various orders against young person including recognizance for terrorist activity, fear of injury or damage, etc] or s.20(2) [s.810 recognizance – fear of injury or damage] | 6 months after the expiry of the Order | 119(2)(d.1) |
| Found guilty and sentence is an absolute discharge | 1 year after found guilty | 119(2)(e) |
| Found guilty and the sentence is a conditional discharge | 3 years after found guilty | 119(2)(f) |
| Found guilty of summary conviction offence* | 3 years after sentence imposed has been completed | 119(2)(g) |
| Found guilty of indictable offence* | 5 years after the sentence imposed has been completed | 119(2)(h) |
| *This is subject to ss.119(2)(i) and (j), and s.119(9) of the YCJA |
The calculation of these access periods becomes even more complex if the young person is found guilty of another offence as a young person, which could extend the access period by 3 or 5 years [ss.119(2)(i) and (j), YCJA].
A caution for youth in their late teens, nearing adulthood
If a young person is found guilty of a summary or indictable offence and is sentenced (not reprimanded or discharged) and is later convicted as an adult during the youth record access period, the record will be retained indefinitely [s.119(9)].
As an example:
When Molly was 17 years old, she got into a fight at school with another student. She went through the Court process and was found guilty of assault. The Crown elected to proceed summarily because of the low-end severity of this assault. Due to Molly’s history of fighting at school, she was sentenced to 12 month’s probation.
Molly’s youth record will be accessible for 3 years beginning after she completed her 12-month probation period. This takes into consideration the summary election, that she was found guilty, and sentenced to a harsher penalty than a discharge.
Molly is now 19 years old, making her an adult in the eyes of the law. Unfortunately, she just got into another fight and was charged criminally. She was found guilty and sentenced to another period of probation.
As Molly was found guilty and sentenced as an adult during the time in which her youth record was still accessible, her youth record is now accessible indefinitely.
Conclusion
Youth criminal law is complex and difficult for most people to navigate, even adults. If you are a young person charged with a criminal offence, it’s crucial to understand record access periods and the potential implications for your future.
If you are facing a criminal charge as a youth, contact the experienced lawyers at Edelson Foord Law today.
This is not legal advice, and is rather, just cursory legal information. If you are being investigated or have been charged under the YCJA, contact us immediately.
