Area of Law: Criminal Records | Pardons & USA Waivers
Answer # 2162
Eligibility periods for DestructionsRegion: Ontario Answer # 2162
The following chart sets out the eligibility time frames for how long you must wait to obtain a Destruction adopted by most police services:
In addition to these basic guidelines, the individual police services may have further policies regarding what they will and will not destroy. 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. It should be noted that the policies of some police services are to not destroy fingerprints, photographs, and criminal record files relating to not-guilty outcomes under certain circumstances. In such cases, the not-guilty record is disclosed, just as is a record of conviction (which has not been pardoned or suspended).
Some of the devastating results of the police refusing to destroy offence information that resulted in not-guilty outcomes include:
- disclosure of the information on a police records check for employment purposes,
- delay or denial of Canadian Immigration applications,
- discovery of the record at the U.S.A. border. If the charging police do not recall the information from the RCMP, that information is disclosed during routine computer searches at the Canada/U.S.A. border (refer to Can USA Immigration Officers access Canadian criminal records?)
The police justification for keeping information related to not-guilty outcomes is that it may be required for investigative purposes. The individual maintains that this type of policy violates his or her Charter rights, and his or her rights under privacy laws. Simply stated, the issue is a much-debated one, wherein the rights of law-enforcement agencies to be able to do their job effectively and the rights of the individual to be free of persecution must be balanced. Some individuals have gone so far as to take legal action to force the charging police service to destroy information related to their not-guilty outcomes. Many of these cases have succeeded.
Ironically, the police services that do not destroy or even seal certain charges, which resulted in not-guilty outcomes, will remove or seal charges which did result in a finding of guilt – discharges and convictions. The end result is that people who were found not-guilty often can be treated more harshly, in that they will have a criminal record forever, while those who were found guilty and even convicted, have their records sealed both at the federal and local police levels.
If you have been charged with a criminal offence, refer to our criminal law section.
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