Ganja conviction not showing up on criminal record

All Woman

Dear Mrs Macaulay,

I was convicted for ganja in 2011 and paid a fine of $500. I did a police record for a job in Canada through the Ministry of Labour (farm work) and the ganja conviction did not show up on the criminal record. I am wondering if I went to the Ministry to do a medical and they fingerprint me, whether it will show that I was charged for ganja. And if so, what should I do?

In your letter you state that you were convicted in 2011, I presume for possession of ganja, as the sentence was very light. You did not say by what means you were convicted, that is to say, whether you went to trial or whether you pleaded guilty. Anyway, you relate that you paid a fine of $500, but did not indicate whether there was a period of imprisonment to be served if you had failed to pay the fine. Or was the sentence only the fine?

Let me answer your second question first — if they find the criminal entry in your record, they will not discover that you were “charged” for ganja, but the record will rather show your “conviction” for possession of ganja.

I cannot say whether your record will show the conviction or not. It clearly did not do so for the farm work report for Canada. The reason may have been that you went through that process very soon after the conviction when the conviction had not yet been entered. Or it could be because there was in fact no entry of it. The only way you can find out with certainty is to in fact apply again for it and find out. If it is there, you can then start preparing to apply to have your record expunged and so clean up your record and become a rehabilitated person.

I have presumed that you were charged with possession and the level of the fine leads one to assume that it was a very small amount, maybe then only a 'spliff'. If this is so, your charge and conviction would not fall under any of the sections of the Dangerous Drugs Act for which convictions cannot be expunged pursuant to the Criminal Records (Rehabilitation of Offenders) Act.

So if there is a record of your conviction, you are entitled to apply to the Criminal Records (Rehabilitation of Offenders) Board for your record to be expunged. Your conviction having been in 2011 is now eight plus years old, and you presumably have not been convicted of any further offence since then. Under the Criminal Records Act referred to above, the rehabilitation period under the principal Act for a sentence like yours was three years, so you could have applied in 2014 for it to be expunged. However, the principal Act was amended by the Criminal Records (Rehabilitation of Offenders) (Amendment) Act 2014 and from October 2, 2014, it and the principal Act were to be read and construed as one Act. By this 2014 amendment, the rehabilitation period was increased to five years for sentences for convictions which (1) do not include a term of imprisonment, or (2) when the term of imprisonment does not exceed six months. The Act also provides that where the sentence is, for instance, a fine with a term of imprisonment as an alternative, then such a term of imprisonment shall be disregarded for the purposes of making the application. Even with the increase to five years, you have exceeded the legal period enabling you to apply for the expunging of your record.

So if you find that the conviction is on your record, which you ought to apply for at the Police Records Office, you must ensure that you secure the police records which you receive, as you will need to attach this to your application to the board.

The Act provides that your application must be in writing in which you must state your full name and age, the correct offence for which you were convicted, the date and place of your conviction, the court before which you were convicted — you would have gone to the court and obtained a certified record of your conviction and sentence or a certified Backing Court Sheet which shows these. You also need the then Resident Magistrate's signature, the date on which you completed your sentence — from what you said this would be the date you paid your fine and I hope you still have the receipt for such payment. You also need to attach this to your application. If you do not have it, ask for a certified copy from the court. You must also state in your application the date your conviction became 'spent' and the date of the end of your rehabilitation period — these would be the day you paid the fine and then that date plus five years, which I believe took you to 2016.

The Act also says you can include any other written representation and I would suggest that you include at least two character references from reputable persons.

The board will have investigations done to ensure that all your statements in your application are true, and details about your conduct since the date of your conviction and the payment of your fine. If the board is satisfied by the results of its investigations and that there will be no prejudice to the interests of justice, it will issue a direction that the record should be expunged.

Remember, you may find that there is nothing about that conviction in your record because you clearly do not remember if there was an order for your fingerprints to be taken when you appeared before the court in answer to the charge. If there was no such order, then there would be no record. You see, the police cannot just take your fingerprints without a court order as they would be committing an assault against you. If the charged offence in the opinion of the court is not really very serious — and yours seems to have fallen into this category with a fine of only $500 — then the judge, in all probability, did not make a fingerprint order and so you would have a clear record. This is probably why that record for that job in Canada did not come up with any conviction.

Please set you mind at rest and go and get your police record, which may be completely clean, and if it is not then you can move to get the conviction expunged and obtain a clean record and peace of mind.

I hope I have clarified the position for you and I wish you all the very best.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.

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