Keeping Charges Private Resources

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Since a person is innocent until proven guilty, an employee is generally not required to disclose a criminal charge to his or her current employer. However, some employment agreements give your employer permission to search your criminal record. Furthermore, courts are public forums, meaning that any member of the public could be present at a Bail Hearing or other court proceedings that are part of your charge.

One way that an employer may find out about a criminal charge is through the news. But for most offenses, such as Common Assault, it is unlikely that the incident will make the news. Furthermore, in some cases it may be possible to prevent the name of the person charged, as well as other details of the case, from being published. For example, a publication ban can be placed at a Bail Hearing on all details of the case until the accused is either discharged or until the trial has ended. In this way, the information could only be published once the matter is concluded.

If an employer does find out about a criminal charge, whether or not the employee is terminated depends on the situation.  There are many variables and each case is unique on its own facts. In the end, it is largely up to the employer whether or not to continue the employment relationship.

An employer may terminate an employee without cause or with cause. If the employment is terminated without cause, the employer has to give the employee notice (a period of time until the employment is terminated) or pay in lieu of notice (severance package). If the employment is terminated with cause, the employer is not obligated to provide notice or a severance package. Generally speaking, in Ontario, termination with cause is more rare and is reserved for cases where the criminal charge directly relates to the employment. For example, a person who works at a childcare facility and is charged with possessing child pornography may be terminated with cause. Again, the cases vary greatly and it is hard to know whether the employment may be terminated with or without cause without knowing the specifics of the particular case.

Frequently Asked Questions

What if I don’t want my Spouse and/or Children to discover my Charge?
What if I don’t want my Community to Discover my Charge?
If I am not Convicted, will my Charges follow me once my matter is concluded?
What is a Withdrawn Charge?
What is a Stayed Charge?
What is a Discharge?
What is an Absolute Discharge?
What is a Conditional Discharge?
What does it mean to have a Criminal Conviction for which a Pardon has not been Granted?

What if I don’t want my Spouse and/or Children to discover my Charge?

It is understandable that you may want to keep charges private from your family. In the end, whether or not your spouse or children find out about your charge is largely up to you. You are not under any obligation to disclose the charge to your family and you are innocent until proven guilty.

Furthermore, there are ways to minimize the possibility of your spouse and children discovering your criminal charge. First of all, according to client-solicitor privilege, information shared between a lawyer and client is confidential. This means if a family member contacts the law firm seeking information, we cannot provide them with any information, including whether or not you are a client, unless we have your permission to do so.

We can also establish a preferred method of communication. In this way, we can avoid sending communications through a shared address or phone number. Additionally, we can accept any documents related to your court proceedings, so that they do not need to be sent to your personal address. This would minimize the chances of your family members discovering your charges and would provide a safe third-party location to keep your documents.

However, since charges are public information, and courts are public forums, there is always a possibility that your family may find out. Court proceedings are open to the public to attend, and your family may find out about your charge in this way.

What if I don’t want my Community to Discover my Charge?

Court proceedings, including bail hearings, are open to the public. As such, there is always a possibility that a person may find out about your criminal charge. Despite this possibility, our firm will work to minimize your exposure to the criminal justice process, thereby minimizing the chances that your community finds out about your criminal charge.

If I am not Convicted, will my Charges follow me once my matter is concluded?

Whether or not your charges follow you depends on the way in which your case is resolved. Even where there is no conviction, there may be a non-conviction record that can follow you after the resolution of your case. There are several possible ways in which a matter may conclude, including a withdrawn charge, stayed charge, absolute or conditional discharge. There are also police records that may result from interactions with the police regarding your case, such as police surveillance, 911 calls, fingerprints, photographs, etc. See below for a description of each form of resolution and the entailing implications on your record.

What is a Withdrawn Charge?

In some circumstances, the Crown may withdraw charges that had been placed against the accused. When charges are withdrawn, this means that the Crown has decided not to pursue the case any further, and that the case is now concluded. This may happen for various reasons, for example if the Crown determines that there is no reasonable prospect of conviction, or that prosecution is not in the public interest.

Once a charge is withdrawn, although this is the end of the case, there may still be a police record stating that you had been charged with an offence. Furthermore, if the charge involved an arrest with fingerprints and photographs taken, these would also be a part of the police record. These things may show up on a criminal record check, depending on the level of the check conducted and on internal police service policies.

You may however, apply to have your record destroyed, including the fingerprints and photographs. In doing so, your non-conviction record would not show up on future record checks. With the Toronto Police, you may apply to destroy your non-conviction record one year after the conclusion of your matter. If your application is successful with the Toronto Police, they will also make a recommendation to the RCMP to destroy any records associated with the same non-conviction record.

What is a Stayed Charge?

Like a Withdrawn Charge, a Stayed Charge also means that the Crown has decided not to prosecute the case. A Stayed Charge is therefore almost entirely the same as a Withdrawn Charge and has the same consequences for your record.

The key difference between the two is that the Crown can resurrect a Stayed Charge within one year from the day that the charge or proceedings were stayed. The Crown may decide to do so for the same reasons as withdrawing a charge – e.g. if it deems that prosecution is not in the public interest. In such circumstances, it is unlikely that the proceedings will resume.

If the Crown decides to continue prosecuting the case within the one-year period, the charges are resurrected as they had previously existed. However, if the Crown does not continue the prosecution after the one year period, the charges are treated the same as a Withdrawn Charge and have the same possible effects on your record. Therefore, as with a Withdrawn Charge, your charge may show up on a record check even though there has been no conviction,. You may apply to have your record destroyed one year after your charges (or proceedings) were stayed.

What is a Discharge?

A Discharge occurs when there is a finding of guilt, either through a guilty plea or if the court finds the accused guilty, but the court nevertheless decides not to convict the accused. Therefore a Discharge, while involving a finding of guilt, is NOT a criminal conviction. A Discharge may only be given for offences that have no minimum punishment prescribed by law (e.g. no minimum punishment set out in the Criminal Code), and it cannot be given for offences that are punishable by imprisonment for fourteen years or for life. For example, a Discharge cannot be given for Aggravated Assault as it has a possible penalty of fourteen years’ imprisonment.

A Discharge can be given where the court determines that it is not in the accused’s or the public’s best interest to convict the accused. This can occur in a wide variety of cases, but usually where the accused is a first offender, a young offender, and/or the offence is not serious.

A Discharge can be absolute or conditional; the difference is discussed below.

What is an Absolute Discharge?

An Absolute Discharge is the most lenient outcome in a finding of guilt. It means that there are no further conditions or probation period after your trial. Again, the discharge means that despite a finding of guilt, there is no criminal conviction.

According to the Criminal Records Act the Discharge is removed from your Canadian Information Police Centre (CPIC) record automatically after a period of one year. This means that if the RCMP checks your record (which is usually the case when an employer seeks a criminal record check), it will not show anything regarding your charge or finding of guilt after one year. Although the local police service may keep some mention of your Discharge, you may also apply to have this removed after one year from your Discharge.

What is a Conditional Discharge?

A Conditional Discharge is a Discharge that involves a Probation Order, which imposes specific conditions on the guilty party. The Probation Order is made for a specific period of time, usually from six months to two years. Breaching a Probation Order may result in the court removing your Conditional Discharge and entering a conviction instead.

According to the Criminal Records Act, any mention of your Conditional Discharge is removed from your Canadian Information Police Centre record automatically after a period of three years. This means that a record check by the RCMP (as with criminal record checks for employment) will not show anything regarding your Discharge after three years. Although the local police service may keep some records relating to your Discharge, you can apply to have these destroyed as well after the three-year period.

What does it mean to have a Criminal Conviction for which a Pardon has not been Granted?

This is a common question asked when applying for employment. It asks two things – do you have a criminal conviction, and if so, has a pardon been granted for your conviction. If you have been Discharged or had your charges withdrawn, then you have not been convicted of a criminal offence. As such, the appropriate answer would be no. Similarly, if you had a conviction but were granted a pardon for your criminal conviction, you can answer no to this question.

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