Area of Law: Criminal Records
Answer # 2118
Can an employer find charges that were withdrawn, dismissed or stayed?Region: Ontario Answer # 2118
Yes. Non-convictions (i.e., acquittals, stayed charges, withdrawn or dismissed charges, and absolute or conditional discharges) still show up on most local police records checks. Having non-convictions can often lead to more serious problems than having convictions because convictions can almost always be pardoned, whereas the destruction of non-conviction charges is decided at the discretion of the individual police services. If the police decide not to destroy the person’s photographs and fingerprints, the individual will have a criminal record for life.
Local police records checks may also reveal information about incidents where the individual was not even charged (e.g., in cases where the person was the one making the complaint, was the victim or a witness). Although this type of file might not be what people commonly think of as a criminal record, a prospective employer might feel that someone is living an unstable life if they are in any way involved with a criminal occurrence (even if they were simply the witness).
Often, the police records check results will be given to the individual to forward to the employer. In such a case, the individual can review the report and have an opportunity to explain the circumstances to the prospective employer. If the report is to go directly from the police to the employer, the individual may find it prudent to inform the employer of what to expect before the report is received.
Whether a police records check showing a non-conviction will preclude the individual from getting the job depends on many factors: the nature of the offence, the outcome, the type of job applied for, the employer’s perspective, and the applicant’s explanation of the events. For more information, refer to Pre-employment screening (background checks).
In many cases, the employer may not be able to, or even care to differentiate between a conviction and a non-conviction. Most employers simply choose not to hire anyone who has been involved with the police.
Although people with pardoned convictions will receive a police report saying that no criminal record exists, those who received a less serious disposition by way of a discharge and those who were actually found not guilty will, in most cases, have that information disclosed.
Where charges result in not guilty dispositions, it is unclear whether police services have the legal right to:
- keep the information (including fingerprints and photographs of the accused),
- use this information for investigation purposes,
- disclose this information to third parties.
There is a strong Charter argument against the maintenance and use of information derived from such charges.
If you wish to apply for a job or become licensed in a particular industry, it is best to have your criminal record removed before you submit your application.
If you have been charged with a criminal offence, refer to our criminal law section.
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