Do Young Offenders Receive An Automatic Pardon At 18?

It is a well-known fact that Canadian criminal law tends to treat people under the age of 18 who commit crimes with significantly more leniency than adult offenders. No person can be charged with a crime before the age of 12 and offenders between the ages of 12 and 17 are subject to the provisions of the Youth Criminal Justice Act. Under this law, youth cannot be imprisoned for minor crimes, alternative consequences (e.g. restitution, participation in community programs) are encouraged and when a youth is given a penalty, it may be significantly less than what would be imposed on an adult. However, it is a common misconception that a youth’s criminal record is destroyed when he or she turns 18. All youth who are charged with a crime in Canada will have a youth record, which will eventually be closed but, depending on the specific case, will remain open from anywhere from two months to at least ten years.

Under current legislation, a youth record is automatically closed at the age of 18 only in one case: when an offender finishes their sentence before his or her 15th birthday. For all other young offenders, the following provisions apply:

• If a youth is acquitted in court, the youth record will stay open for two months after the appeal period. If the Crown appeals the case, it will not be closed until three months after the appeal is heard or decided.

• If the charges are withdrawn or dismissed, or if the youth is only reprimanded, there will be a youth record, but it will be closed after two months.

• If a youth agrees to participate in an alternative program (an alternative to going to court offered to the offender in some cases), a police record will be retained for two years after the agreement to participate was reached.

• The youth records of those who are given an absolute discharge (found guilty but deemed not to have been convicted) are closed after one year.

• The records of those who have been given a conditional discharge (as above, but subject to certain parole conditions) will be closed after three years.

• The records of those who are convicted of a summary offence (a less serious crime for which the maximum penalty for an adult is a $2000 fine, 6 months in prison or both) will be closed three years after the completion of their sentence (including paying fines and being on probation).

• In the case of those who have committed an indictable offence (any more serious crime), the record will not be closed until five years have passed from the completion of their sentence.

• If the indictable offence was a violent personal injury offence (such crimes as manslaughter or when a person is injured during sexual assault or attacked with a weapon), the record can stay open for ten years after the completion of the sentence.

• The Criminal Code treats many crimes as “hybrid offences”, meaning that the Crown Attorney can choose whether to charge them as summary or indictable offences. In the case that the youth has committed such an offence, the period during which the youth record will stay open will depend on how the Crown Attorney decides to proceed, subject to the time periods stated above for a summary or indictable offence, as the case may be.

If, while the youth record is still open, a youth commits another crime or violates the provisions of a court order (for instance, if he or she drinks alcohol or does not go to school when ordered to do so by the judge), both offences will stay on the record until the record for the second offence is closed. If this happens after the person turns 18, the youth record could stay open indefinitely, given that at this point a criminal record lasts until the person obtains a pardon.

It is noteworthy that the periods set by law for keeping the youth record open are equivalent to the periods of ineligibility that an adult offender would be subject to after release before being able to apply to the Parole Board of Canada for a pardon. A person who was convicted of a summary offence can apply for a pardon three years after the completion of their sentence; for an indictable offence, the period is five years, and in the case of violent personal injury offences, a person needs to wait ten years after completing their sentence. Murder and the few other crimes carrying life or indeterminate sentences are never eligible for a pardon. In the case of youth, because the record is closed after a set period of time, applying for a pardon is not necessary.

By: Ned Lecic

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Ned Lecic is a writer from Toronto, Canada. He works for a pardons agency.