Not Guilty But Not Really: Will Withdrawn or Acquitted Charges Appear on a Criminal Record Check?

By: James Mencel

Disclaimer: Navigating the complex regime governing retention and destruction of non-conviction records can be difficult as every police force has their own policies and procedures. This blog is a simplification to be used for reference only. If you are seeking more information, contact a lawyer at Edward H. Royle & Partners LLP.

One of the most common questions I am asked as a criminal defence lawyer is: “will I have a criminal record?” And unfortunately, the answer is not usually a simple “yes” or “no.”

When people refer to a “criminal record,” they are usually referring to a record of convictions contained in the Canadian Police Information Centre (“CPIC”). However, there are also “police records,” which may contain information of charges you were never found guilty of, or even never charged with. And this information sometimes finds its way onto “criminal records.”

Types of Criminal Record Checks:

There are two basic types of record checks that are frequently required by employers, volunteer organizations, and landlords: (1) Criminal Record Checks, and (2) Vulnerable Sector Checks.

Criminal Record Check

A criminal record check (or clearance letter) is a document issued by a local police force that indicates that an individual has no criminal convictions on “CPIC” and/or local police databases. If there is a record of convictions, the individual to whom the record relates must provide fingerprints in order to access the record. Criminal convictions are the only records that will appear under this type of check.

Vulnerable Sector Check

However, if you are seeking employment or volunteer opportunities with vulnerable persons, including children, the elderly, or people with disabilities, you will likely be required to get a Vulnerable Sector Check.

This inquiry will provide information not only of criminal convictions, but also of outstanding entries, such as charges and warrants, peace bonds, probation and prohibition orders, absolute and conditional discharges currently within the retention period, any record suspensions (formerly pardons) for sexual offences, and possibly even non-conviction information.

What is Non-Conviction Information?

Non-conviction information can include records of police contact, mere allegations, withdrawn or stayed charges, acquittals, and even mental health information. While this information is not recorded in all cases of police interaction, if you were ever charged with an offence, you can be sure this information was recorded, and may sometimes be included on a Vulnerable Sector Check.

In 2011, the Ontario Association of Chiefs of Police (OACP) approved a province-wide “Guideline for Police Record Checks.”[i] The Guideline prohibits disclosure of information collected by police that is related to mental health is almost all circumstances. It also stipulates that non-conviction records must not be released on a Vulnerable Sector Check except in exceptional circumstances.

The Guideline recommends a procedure to have non-conviction information excluded from the Vulnerable Sector Check, directing the police service to take consideration a number of factors, including:

1. Date of incident
2. Age of Applicant at the time of incident
3. Whether the incidents target a vulnerable person
4. Whether there is repeated behaviour towards more than one person
5. Whether the incidents took place
6. The number of incidents
7. Whether there is a pattern of incidents
8. The reason the incident did not result in a conviction.

However, the guidelines are not mandatory, and each police force in Ontario has their own policies and procedures for conducting Vulnerable Sector Checks, so what is included may vary depending on where you live.

Moreover, while the OACP guidelines instruct that retention of local occurrence databases should be limited to the most recent five years, different police forces have different rules as to the length of retention.

How do I find out what information police are retaining?

If you wish to see what information police are retaining, you can try to go to your local police station and request it. Keep in mind that just because police retain information does not mean it will be disclosed under a Vulnerable Sector Check. Unfortunately, it may be difficult to find out which information would be disclosed under a Vulnerable Sector Check, as police may refuse to process a request for that information unless it is actually needed for the specific purpose of working with vulnerable persons. If you are concerned about the retention of specific information, you should contact the police division that you originally interacted with. However, if you have had contact with police in different areas, you will have to file separate requests with each police force.

You can also seek this information through an Access to Information request. However, be forewarned that this process can take a long time and there is usually a fee. Check with the police force you interacted with, as they may have a specific form to request this information.

What can I do?

If you have been acquitted or received a discharge, or if your charges have been withdrawn or stayed, you should contact your local police force to find out the specific policy or procedure you will have to follow to seek to destroy these records. Most police forces also include this information on their website. Make sure that you request that the information be removed from both the local and national databases.

For example, in Toronto, you can submit this form to seek the destruction of your fingerprints and photographs: https://www.torontopolice.on.ca/fingerprint-destruction/fingerprint_destruction_form.pdf.

Take note, however, that this form does not govern destruction of other records, such as a record of arrest, which will include your name, address, date of birth, visual appearance, arresting officer, location of arrest, and charge(s). A separate request is often needed to seek to destroy these records.

Unfortunately, police will often refuse a record destruction request for a number of reasons, and if this is the case, they should provide you with written reasons explaining their decision. If your request is denied, there is generally a route to appeal, though it is important to note that that there will likely be a quick deadline to do so. You will also likely be expected to provide further information to support your request.

For example, Toronto Police Service will consider the following as mitigating factors in support of the application:

• the seriousness or triviality of the alleged offence
• mitigating or aggravating circumstances
• the age, intelligence, physical or mental health or infirmity of the applicant.[ii]

Thus, in considering a request for destruction, police will consider a number of factors, including, but not limited to: how serious the allegations were, how dated the allegations are, any supporting evidence you can provide, whether you have been charged with any additional offences since then, and how the retention of the record has or could impact your life.

You may wish to contact a lawyer to assist in filing your appeal.

What if the Police refuse to destroy my records?

If the police refuse to destroy your non-conviction records and you have exhausted all avenues of appeal, you can seek a judicial review of the final decision. At this point, you will likely need the assistance of a lawyer.

Concluding Thoughts

Individuals who have their charges withdrawn or are acquitted are regularly receiving a sentence for a crime that was not proven. Because police forces often refuse to destroy these records, these persons face unnecessary barriers in their lives, including in areas of employment, volunteering, travel, and in any future contact with the police or the justice system.[iii]

In R. v. Doré, [2002] OJ No 2845, the Ontario Court of Appeal discussed police retention of fingerprints absent a conviction and held that: “[t]here is no reason to differentiate the expectation of privacy that an acquitted person has in such information from the expectation that a person who has never been charged with an indictable offence would have” (para 64). The Court of Appeal went on to state that: “[following an] acquittal, permanent stay or withdrawal of the charges … the original constitutional justification for taking and retaining … fingerprints no longer exists” (para 68). Thus, once a request for the destruction of such records is made, further retention becomes unconstitutional, except in highly exceptional circumstances (paras 71 and 83).

However, police forces in Ontario regularly retain non-conviction records. Indeed, the Toronto Police Service categorically and routinely refuses to destroy records that contain “a primary designated offence or secondary designated offence as defined in section 487.04 of the Criminal Code.” This current practice runs contrary to the ruling in Doré.

To continue to treat those who have been charged (or simply suspected)[iv] of criminal offences differently from those who have never been charged based on the mere fact that the former have had interactions with the police denigrates the meaning of a non-conviction, violates the principle of the presumption of innocence and brings the administration of justice into disrepute.

In our criminal justice system, the mere fact that someone has had a run-in with the police does not imply any guilt. Everyone is presumed to be innocent until proven guilty beyond a reasonable doubt. Unfortunately, current retention policies often fail to reflect this fundamental principle by essentially prescribing guilt to individuals based on the mere fact that they were charged. This practice is unacceptable. An accusation does not mean guilt.

While the police do retain some discretion to retain records, this must be done in accordance with constitutionally specified limits as laid out in Doré. Police discretion is not unlimited.

Any categorical exception is overly broad. The same concerns for public safety do not exist for all charges. Many police services’ policies and procedures are unconstitutionally broad and fail to ensure that records are destroyed in all but ‘highly exceptional circumstances’.

It should be recalled that Doré established that the onus is on the police force to demonstrate any public interest in retaining the records of a non-convicted individual according to their particular circumstances (para 71). As such, given the absence of any evidence establishing that an individual’s circumstances are truly exceptional, it is manifestly unreasonable, and patently contrary to the ruling in Doré to retain non-conviction records.

In the decision of S. and Marper v The United Kingdom [GC], no. 30562/04, (4 December 2008) the Grand Chamber of the European Court of Human Rights stated that: “the right of every person under the Convention to be presumed innocent includes the general rule that no suspicion regarding an accused’s innocence may be voiced after his acquittal” (para 122). While it is promising that there has been renewed attention to this issue and legislators have indicated some intention to standardize the process for conducting record checks, it is clear that significant and uniform changes are needed if we are to truly respect the presumption of innocence, “a hallowed principle lying at the very heart of criminal law. . . . [that] confirms our faith in humankind”: R. v. Oakes, [1986] 1 SCR 103, at pp. 119-20.

End Notes

[i] Ontario Association of Chiefs of Police (OACP), “Guideline for Police Record Checks: http://www.oacp.on.ca/Userfiles/Files/NewAndEvents/PublicResourceDocuments/GUIDELINES%20FOR%20POLICE%20RECORD%20CHECKS%20%20_%20June%202014_FINAL.pdf

[ii] Toronto Police Service, “Destruction of Adult Fingerprints, Photographs and Records of Disposition: Toronto Police Services Board Policy and Direction” https://www.torontopolice.on.ca/fingerprint-destruction

[iii] As an example, in 2014, the Toronto Star released an article detailing about how the release of such records has impacted people in Ontario:  https://www.thestar.com/news/world/2014/06/22/no_judgment_no_discretion_police_records_that_ruin_innocent_lives.html

[iv] In AM v Toronto Police Service, 2016 ONSC 720, the Applicant brought an application to supress or purge a “person of interest” from his Police Vulnerable Sector Check. In 2000, an allegation of sexual exploitation was made against him which could not be substantiated. The police notified his employer, the Toronto District School Board, and informed them also of his record of (non-sexual offence) convictions. As a result, he was fired. However, in 2008, he received a pardon for his criminal convictions and re-applied for employment. Nonetheless, because his Vulnerable Sector Check stated he was a “person of interest” in a sexual exploitation case, he was not re-hired.