Referencing Absolute and Conditional Discharges in the Public Register

Some regulators publish information about criminal findings against their members in a public register so that the public has access to this information. In fact, this is now mandatory for the regulated health professions in Ontario.

A recent Ontario Court of Appeal case raises questions about whether the Criminal Records Act imposes any restrictions on a regulator in publishing absolute or conditional discharges in their public register (a discharge is an outcome in a criminal proceeding where the court finds the defendant guilty of a criminal offence, but there is no resulting conviction). The Criminal Records Act sets out special rules that apply to absolute and conditional discharges. One year after receiving an absolute discharge and three years after a conditional discharge, the matters are excluded from the person’s criminal record.

In the recent case of R v Montesano, 2019 ONCA 194, <http://canlii.ca/t/hxzc3>, the Court of Appeal concluded that the Criminal Records Act prevented the Crown in a spousal assault case from advising the sentencing judge that the defendant had previously received an absolute discharge for an earlier finding of spousal assault. The Court held that the Criminal Records Act prevented any disclosure of that absolute discharge (without prior approval by the Minister). The Court went on to say that the Crown could refer to the fact of the previous assault, but not the fact of the discharge.

This decision does not apply directly to the question of whether provincial regulators can publish absolute discharges on their registers. The brief Court of Appeal reasons suggest broad application of the Criminal Records Act. However, posting information on a regulator’s public register about a regulated professional in the public interest is arguably a very different context than a sentencing hearing in the criminal justice system. And it would seem puzzling if a regulator could post the more prejudicial information (i.e., the criminal finding) in a public register but could not include the more mitigating information (i.e., that a court felt the circumstances did not require a punishment and ordered a discharge). Following this case, regulators may face challenges from their members about the proper use of information about absolute and conditional discharges.

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