A withdrawal of charges is separate and distinct from a stay of proceedings. The option to withdraw charges is not authorized anywhere in the Criminal Code. Rather, it is a matter of the Crown’s discretion. The Crown may choose to withdraw charges, for example, if there is no reasonable likelihood of conviction based on the evidence, or if the prosecution does not serve the public interest.
When can a withdrawal of charges happen?
A withdrawal of charges can occur at any stage of the proceedings after an information is sworn by a Justice, even after an accused has entered a plea, with the allowance of the court. Once charges are withdrawn, the prosecution is terminated. All processes and orders associated with it such as detention orders or warrants, are also terminated.
Courts may only interfere with the decision to withdraw charges in very limited circumstances. This includes where the withdrawal constitutes an abuse of process due to the inappropriate strategic use of a withdrawal.
Generally, in the absence of an abuse of process, the Crown is free to lay a new information at any time and begin a prosecution again, even after a withdrawal has taken place. Although uncommon, this may occur when new information is discovered to support prosecuting an individual after a withdrawal has already occurred.
Does a withdrawal appear on a criminal record check, or, a criminal record and judicial matters check?
No, a withdrawal will not appear on a criminal record check, or, a criminal record and judicial matters check.
Does a withdrawal show up on a vulnerable sector check (VSC)?
A withdrawal may show up on a vulnerable sector check (VSC) in some situations. However, in order for a withdrawal to be disclosed on a VSC, it must satisfy a variety of criteria:
- The withdrawn criminal charge must have been for a crime specified by the Minister
- The alleged victim must have been a child or a vulnerable person
- The police record check provider must have reasonable grounds to believe that that individual has been engaged in a pattern of predation, indicating that the individual presents a risk of harm to a child or a vulnerable person
There are also other important factors that will be considered in reaching this decision, including:
- Whether you appear to have targeted a child or a vulnerable person
- Whether your behaviour was repeated and was directed to more than one child or vulnerable person
- When the incident or behaviour allegedly occurred
- The number of alleged incidents
- The reason the incident or behaviour did not lead to a conviction
Can I apply for reconsideration if my withdrawal shows up on my record?
Yes, you can submit a request for reconsideration. Upon making this request, the criminal record provider will reconsider its determination in accordance with any requirements prescribed by the Minister within 30 days. If upon reconsideration, the criminal record provider deems that you do not meet the required criteria to disclose the existence of a withdrawal on a vulnerable sector check, it will no longer show up on your record.
How do you get a withdrawal purged from your record? What about fingerprints and photographs?
If you have had charges against you withdrawn, the record for these charges is under the control of the police force that laid them. The processes for each police department vary, but they will generally consider the nature of the offence and whether there are any other charges on the individual’s record when deciding whether to purge them.
In Hamilton, you can apply to have your criminal file closed 30 days after your charges have been withdrawn. This will result in a purge of your fingerprints, photographs, and any related Crown case material from your record. In order to apply, you must fill out an application form and pay a small fee.
Charges withdrawn by Diversion will automatically be purged from the Hamilton Police Service’s records once the applicable retention period has elapsed. However, it is important to note that this will not result in a purge of the incident report pertaining to the arrest, which may remain on file for up to 25 years. You may request that this information be destroyed, but the Police are under no obligation to do so.
While you do not require a lawyer to apply to have your criminal file closed or purged, it is advisable that you retain one. The process can be complicated and bureaucratic, which will be a headache if you are not familiar with it. By retaining Collett Read LLP to aid in your record suspension application, you can rest assured that your application is being handled by experts and avoid the stress of navigating the application process yourself.
Need a strong criminal defence lawyer in Hamilton? Visit our Hamilton Criminal Lawyers page for more information.
