Andrew Tanenbaum - Pardons Canada

How to remove a non-conviction

January 31, 2024
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Andrew Tanenbaum
Pardons Canada

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In Canada, removing a non-conviction record, which encompasses charges that did not result in a conviction, such as withdrawn, dismissed, or acquitted charges, is a distinct legal process from obtaining a record suspension (formerly known as a pardon). This article offers a legal perspective on the process, eligibility, and implications of removing a non-conviction record in Canada.

How to remove a non-conviction

Understanding Non-Conviction Records

Non-conviction records refer to any record of charges that did not lead to a conviction. These records can appear in police databases and may surface during criminal record checks, potentially affecting employment, volunteering opportunities, or travel.

The Right to Privacy

The Canadian legal system recognizes the right to privacy, particularly for individuals whose charges did not result in a conviction. This right is balanced against public safety and the administration of justice.

Types of Non-Conviction Records

  1. Withdrawn or Dismissed Charges: Charges that were dropped by the Crown or dismissed by a court.
  2. Acquitted Charges: Cases where the individual was found not guilty.
  3. Absolute and Conditional Discharges: Although not convictions, discharges are part of non-conviction records. Absolute discharges are removed from the individual's record automatically after one year, and conditional discharges after three years.

Removing Non-Conviction Records

The process to remove non-conviction records varies by jurisdiction and the type of record:

  1. Local Police Records: Approach the police service involved in the arrest or charge. Request the destruction of fingerprints, photographs, and other related records. Each police service has its own policy and process.
  2. RCMP Records: For records held by the Royal Canadian Mounted Police (RCMP), a separate application for record destruction might be necessary. This process often involves providing proof that the charge did not lead to a conviction.
  3. Court Records: Court records are generally permanent. However, you can apply to the court for an order to seal or expunge the record in certain circumstances.

Eligibility Criteria

Eligibility for the removal of non-conviction records typically depends on:

  • The type of charge.
  • The outcome of the case.
  • The policy of the specific police service.
  • The passage of a certain period without new charges or convictions.

Legal Considerations

  1. Varied Policies: Policies for the removal of non-conviction records vary widely between jurisdictions and police services.
  2. Discretionary Process: The decision to destroy non-conviction records often lies at the discretion of the police service or RCMP.
  3. Legal Representation: Consulting a lawyer can provide clarity on the process and improve the chances of successful record removal.
  4. Privacy Rights vs. Public Interest: The decision to remove records often balances the individual’s right to privacy against public safety and the administration of justice.
  5. Appealing Decisions: If a request for record removal is denied, there may be options to appeal the decision, depending on the jurisdiction and specific circumstances.

Implications of Non-Conviction Records

  1. Employment and Volunteering: Non-conviction records can impact job prospects, especially in fields requiring criminal record checks.
  2. Travel and Immigration: Certain countries may deny entry based on non-conviction records.
  3. Stigma and Privacy: The presence of these records can lead to unwarranted stigma and privacy concerns.

Removing a non-conviction record in Canada is a nuanced process that varies by jurisdiction and the specific nature of the record. The process is governed by a combination of legal rights, administrative policies, and discretionary practices of police services and the RCMP. Individuals seeking to remove their non-conviction records should be prepared for a process that may require legal insight, especially in complex cases. This process is crucial for protecting privacy rights and mitigating unwarranted negative consequences in various aspects of life, affirming the principle that individuals not convicted of a crime should not bear the burden of a criminal record.

You may consider using Pardons Canada (pardons.org) to assist in the pardon, file destruction and US waiver application process. Pardons Canada (pardons.org) has been helping Canadians for over 35 years and has an expert staff of over 25 employees at their head office to gather and prepare all of the necessary documentation for the application process.  You can speak to any counselor at 1877-929-6011 extension 1 and they would be happy to provide a free consultation on your specific case.

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