Record Destruction

When people refer to a “criminal record,” they typically mean a record of convictions. However, even if an individual is not convicted, the police may still keep other records on them. These may include records of disposition (how charges were resolved), any instances of police contact, allegations, charges, fingerprints, and photos collected during an arrest. Although these records will not show up on a standard criminal record check, they may appear on two more stringent forms of police records check – a criminal and judicial matters check and a vulnerable sector check.

A Record Destruction purges fingerprints, photos, and records of disposition from police databases so that they do not show up on these checks or internal police searches. Although many police services retain some data (such as incident or arrest reports) even after granting a Record Destruction, these are for internal use only. In rare cases, “exceptional disclosure”  may be made of certain non-conviction information on a vulnerable record check, even after a Record Destruction. In these instances, individuals may file a “Request for Reconsideration ” to have the specific information excluded.

Benefits of Having Records Destroyed

A Record Destruction can have numerous benefits. By purging these non-conviction records from background checks, it can facilitate future employment and volunteer opportunities that might be jeopardized by a finding of guilt. It can also prevent the individual from being flagged as a person of interest if their fingerprints show up at a crime scene, even for innocuous reasons. For some people, even the idea of the police and RCMP having a copy of their fingerprints and photos can be uncomfortable. Having them purged from police databases can provide additional peace of mind and closure, helping the individual put the remnants of their charge behind them.

Although a Record Destruction does not guarantee entry to the US, it can still facilitate US travel. A non-conviction record may show up when a border agent searches an individual’s name, but once records are destroyed there is nothing to find. However, It is important to note that if the individual tried to enter the US before their record was purged, it may have been accessed and kept in the American system indefinitely. To ensure that they will be able to cross into the US successfully, it is recommended that individuals in this situation seek a US Entry Waiver .

Eligibility

Anyone who received a non-conviction disposition may apply for a Record Destruction. These include charges that were withdrawn, acquitted, dismissed, quashed, or discharged; findings of not guilty or not criminally responsible; stays of proceedings; and peace bonds. There are also certain caveats and restrictions on applying for a Record Destruction:^[1]

• Individuals with outstanding charges before the courts will have to wait for their charges to resolve before applying.
• Individuals with other convictions must first apply for a Record Suspension to have their record sealed. Depending on the service that laid their initial charges, the individual may or may not be able to apply for a Record Destruction once their record has been sealed.
• The individual must be 18 or older on the date of the occurrence. Special rules exist for youth offences, which are described below.
• The active period of peace bonds and absolute or conditional discharges must have expired.
• An individual is ineligible if their alleged charge was for a primary or secondary designated offence under s.487.04 of the criminal code. This includes sexual offences, violent offences, fraudulent offences, and crimes against the government, among others. A full list is available here.
• Many jurisdictions also impose unique restrictions and waiting periods. It is important for individuals applying for a Record Destruction to check the specific requirements of the specific police service, RCMP detachment, or government agency that laid the charges in question before applying.

Application Process

An applicant must apply to the specific police service, RCMP detachment, or government agency that laid the charges in question. Each service has its own application process, but it generally requires the applicant to submit basic demographic information and information about their charges. Depending on the jurisdiction, it may also be possible for the applicant to include a letter explaining why their request should be granted. Applications typically take anywhere from 6-12 months, depending on how backlogged the service applied to is. If the application is approved, the service will typically contact the RCMP to destroy the records in their centralized database.

Each service has its own policies for assessing whether a record will or will not be destroyed, but the assessment is generally based on what risk the applicant is perceived to pose to the public. Some relevant factors include whether the applicant is a first-time offender or has subsequent offences, whether the applicant has been or is currently subject to other criminal investigations, and the seriousness of the offence.

If an application is denied, most services have an internal appeal process. This allows the applicant to provide additional information that may support their case, including the circumstances and seriousness of the alleged offence, their personal circumstances, and the time that has elapsed since the offence. If a service has no internal appeal process or an appeal is rejected, it is also possible to appeal to the relevant police commission, police services board, or an independent civilian oversight agency. Individuals may also file a Request for Reconsideration  even where their application for a Record Destruction has been denied to have specific non-conviction information excluded from a vulnerable sector check.

Youth Records

The rules of the retention of youth records are complex and vary depending on the circumstance, but unlike adults, youth records are usually only retained for a finite amount of time.^[2] Generally speaking, youth found guilty of a summary offence will automatically have their record destroyed 3 years after completing their sentence.^[3] Youth found guilty of an indictable offence will have their record sealed five years after completing their sentence.^[4] This is equivalent to a Record Suspension, meaning their fingerprints, photos, and other records would remain in police databases. These individuals may still be able to seek out a Record Destruction after their record is sealed, depending on the service that charged them.

Exceptional Disclosure

Certain non-conviction records may qualify for “exceptional disclosure” and show up on a vulnerable sector check even after a record destruction is granted. Specifically, information may be authorized for exceptional disclosure where the each of the following conditions is satisfied:^[5]

1. It relates to a specified criminal charge. These are primarily sexual or violent offences, although others are also included. A full list of applicable offences is available here.
2. The alleged victim was a child or a vulnerable person.
3. There are reasonable grounds to believe that the individual has been engaged in a pattern of predation indicating that they present a risk of harm to a child or vulnerable person. Considerations include whether the individual appears to have targeted a child or vulnerable person;  whether the behaviour was repeated; whether it targeted multiple people; when the behaviour or incident occurred; the number of incidents; and the reason the behaviour or incident did not lead to a conviction.

Where non-conviction information satisfies the above criteria, the individual may still file a Request for Reconsideration, described below.

Requests for Reconsideration

If a vulnerable sector check shows non-conviction information, most jurisdictions will allow an individual to apply to have specific information excluded from the check. The relevant criteria differ by service, but examples include: the seriousness of the alleged behaviour, the passage of time since the record was created, whether the applicant occupied a position of trust or authority relative to the victim or complainant; the victim or complainant’s age; the strength of the evidence against the applicant; other contact the applicant has had with the police; and the need to balance the applicant’s right to privacy and employment with the need to protect the vulnerable sector.^[6]

As with Record Destruction, most services allow applicants to appeal denied requests by providing additional information addressing the grounds for rejection.

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^[1] Toronto Police Service, Fingerprint and Photograph Destruction, online.  https://www.tps.ca/services/fingerprint-photograph-destruction/; York Regional Police, Fingerprint and Photograph Destruction, online. https://www.yrp.ca/en/services/fingerprinting-and-photo-destruction.asp.

^[2] Youth Criminal Justice Act, SC 2002, c 1,  ss 119(2), 128.

^[3] Ibid, s.199(2)(g).

^[4] Ibid, s.199(2)(h).

^[5] Police Record Checks Reform Act, 2015, SO 2015, c 30, s 10(2).

^[6] Toronto Police Service, Reconsideration Process for Non-Conviction Records, online. https://www.tps.ca/services/police-record-checks/