Area of Law: Criminal Law
Answer Number: 798
How to remove a criminal recordRegion: Ontario Answer Number: 798
If you have been accused and charged with a crime and you were fingerprinted, or you attended criminal court as the accused, you do have a criminal record – even if you were found not-guilty. With limited exceptions, criminal records do not automatically get removed. It is up to the individual to take the necessary steps to remove their record.
How a criminal record will be removed depends on a variety of factors, such as: the outcome of the charges, the number of charges, and the policies of the charging police service. Generally speaking however:
- if the outcome resulted in a not-guilty verdict, a destruction of the person’s fingerprints and photographs and the destruction or sealing of the outcome record is required
- an offence that was discharged requires a purge and a destruction
- a conviction requires a record suspension (formerly called a pardon)
For record removal purposes, not-guilty outcomes include: acquittals, withdrawn and dismissed charges, charges that were stayed, and peace bonds. Although peace bonds require that the accused sign a document admitting their guilt, for record removal purposes, they are treated like not-guilty outcomes. The waiting period to have not-guilty outcomes destroyed and/or sealed ranges from no waiting period, to one year for charges that were stayed, to the length of time that the peace bond is valid.
The criminal record file of a not-guilty outcome is under the legal jurisdiction of the police that laid the charges. If that police service agrees, it will usually destroy the person’s fingerprints and photographs and destroy or seal the charge outcome records. Most times, the police will also request that the RCMP return its copy of the criminal record file for destruction. In the case where photographs, fingerprints, and other records held by police are permanently destroyed, they can never resurface or be accessed again. On average, a complete file destruction can take anywhere from three to eighteen months.
Whether your file will be destroyed depends on the policies of the local police service that laid the charges. The criteria used by police services for making their decision can include such things as the nature of the offence and whether there are any other charges on the individual’s record. Since local police policies across the country are constantly changing, it is difficult for the average person to know what to do. In some cases, having charges at more than one police service can further complicate the destruction or sealing of records, and if done incorrectly, can result in revealing the information to other police services instead of having it destroyed.
Although the destruction of files relating to not-guilty outcomes should be the least complicated and most successful of applications, it is not.
Absolute and conditional discharges
A discharge means there is a finding of guilt but no conviction. There are two types of discharges: absolute and conditional. With an absolute discharge, there is no sentence or condition to be satisfied. A conditional discharge, as the name suggests, carries one or more conditions that must be met, usually probation or a small fine.
The legal concept of a discharge may seem difficult to grasp at first. Essentially, instead of saying to the accused, “You are convicted,” the judge would say, “You are discharged.” In either case the offence can be the same, and so too can the punishment. But how criminal records from a conviction or a discharge are removed is very different. The conviction requires a record suspension, while the discharge will require an RCMP purge and the local police to destroy or seal the police file. The eligibility periods to remove a discharge are one-year for absolute discharges and three-years for conditional discharges. These waiting periods begin as of the final court date.
The RCMP automatically purge discharges that were registered after July 24, 1992. In fact, the RCMP will purge discharges registered prior to that date if the file is brought to their attention. It is still a good idea, however, for the individual to ensure that the purge was completed. As with not-guilty outcomes however, the local police files are under the jurisdiction of the police that laid the charge. Again, whether the police file will be destroyed depends on the policies of the local police service.
If you have been found guilty and convicted of a criminal offence you will require a record suspension (formerly called a pardon) to have your record removed from public access. Note that if you already have a Canadian pardon, it is valid indefinitely unless you reoffend, and you do not need to apply for a record suspension.
Generally, people are eligible to apply for a record suspension once they have completed the sentence imposed by the court and have waited the necessary time period. Waiting periods depend on the seriousness of the case. If the court proceeded summarily (less serious offences), the waiting period is five years; if the case was prosecuted by indictment (more serious offences), the waiting period is ten years. The waiting period does not begin until the sentence imposed by the court has been completed.
The sentence can include:
- fine payments, surcharges and costs
- restitution and compensation
- jail time
Prohibitions (such as driver’s licence suspensions) are not included in calculating eligibility. Although the waiting period must pass before a record suspension can be granted, it is a good idea to start collecting information as soon as possible, so that the exact date of eligibility can be determined and to ensure that you have complied with everything that was ordered by the court. A record suspension is available for almost every type of crime. However, under the Criminal Records Act, people convicted of the following offences are not eligible for a record suspension:
- except in limited circumstances, those convicted of Schedule 1 offences (which are sexual offences involving children and young people under the age of eighteen), and
- those convicted of “more than three offences each of which either was prosecuted by indictment or is a service offence that is subject to a maximum punishment of imprisonment for life, and for each of which the person was sentenced to imprisonment for two years or more.”
There are two parts to removing a criminal record: collecting and analyzing the criminal record information, and then making the appropriate application to destroy or remove it. To remove a criminal record, it is necessary to first collect all the necessary documents, including fingerprints, and police, court and RCMP records for each offence. The police, court, RCMP and Parole Board of Canada all charge fees for their services. It takes between three to eighteen months to complete this part of the process. Once the information is collected, it must be analyzed to determine what type of record removal process is appropriate, and when the person will be eligible to submit the application.
The rules for destroying, purging or sealing a criminal record are constantly changing. It is a good idea, therefore, to seek the assistance of a record removal professional.
If you have been charged with any criminal offence, contact Derstine Penman Criminal Lawyers.
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