Discharges are a unique sentencing option available for most criminal offences in Canada. Discharges allow the courts to find an individual guilty of committing a criminal offence without giving them a permanent criminal record. On the sentencing spectrum, discharges are the lowest sentencing option available where the court finds an individual guilty of a criminal offence. There are two types of discharges: absolute and conditional.
Absolute and conditional discharges as a sentencing option are both outlined in section 730(1) of the Criminal Code.
What is an Absolute Discharge?
An absolute discharge is the lowest sentencing option available to the courts as it allows the court to find an individual guilty of an offence without giving them a permanent criminal record and without placing any conditions on them.
An absolute discharge is a finding of guilt, without entering a conviction on the offender’s criminal record. Once an absolute discharge is granted, the accused ceases to be restricted by any conditions or court orders associated with the case. The matter is over, and the accused is free to go. The absolute discharge will automatically disappear from the accused’s record after one year. There are no conditions or probation orders associated with an absolute discharge.
Who can get an Absolute Discharge?
An individual may be granted an absolute discharge for the majority of offences outlined in the Criminal Code. As outlined in section 730(1) of the Code, an individual may be granted an absolute discharge if they have pled guilty, or been found guilty, of any offence, as long as there is no minimum penalty associated with the offence, and the maximum penalty is less than fourteen years’ imprisonment.
The Legal Test
Section 730(1) of the Criminal Code outlines the legal test for an absolute discharge. It stipulates that the Court should only grant an absolute discharge where it is in the accused’s best interest, and where it would not be against the public interest to do so.
Granting an absolute discharge will almost always be in the best interest of the accused. Having a criminal record of any kind can have negative consequences on an individual even well into the future.
Granting an absolute discharge will not always be in the best interest of society. In Canada we have a criminal justice system to ensure a certain level of safety within our society. Confidence in the system can only be maintained if the general public is assured that those who commit crimes will be punished by the courts. As a result, it is necessary to convict some offenders and give them a permanent criminal record. Criminal records protect the public by allowing people to be aware of an individual’s criminal past.
The court will find that it is not in the public interest to grant an absolute discharge where they believe that the accused will commit a similar offence again in the future. Where the court believes an accused will commit a similar crime in the future, it would not be in the public interest to grant a discharge because the public needs to be made aware of the individual’s history. The court will also not grant an absolute discharge if they believe the accused needs to continue to be under the supervision of the court.
For example, it may not be in the public interest to grant an absolute discharge to an individual who has been convicted of randomly and violently attacking a stranger on the street, causing serious injuries. Due to the random and predatory nature of the offence, it is necessary to keep a record of the accused’s conduct in the form of a permanent criminal record to protect the public from a similar attack.
Negative Consequences Associated with Absolute Discharges
While an absolute discharge will disappear from an individual’s record one year after the conviction date, it may continue to negatively affect the offender into the future.
An absolute discharge may continue to appear on a vulnerable sector check, even after the discharge has expired and been removed from your record. Vulnerable sector checks are the most robust background checks available and will show the individual’s entire arrest history. Having an absolute discharge on one’s record may make it difficult to attain employment with certain vulnerable populations like children or the elderly or have immigration consequences.
An absolute discharge may also impact an individual’s ability to travel outside of Canada. Other countries, including the Unites States, do not recognize the difference between a discharge and a criminal conviction. As a result, they may refuse entry to anyone who has an absolute discharge on their record.
Can I Remove an Absolute Discharge from my Record?
An absolute discharge will automatically disappear from an individual’s record one year after the sentencing date.
An absolute discharge will appear on an individual’s criminal record while it is still active. It will also continue to appear on vulnerable sector checks even after the one-year waiting period has passed.
It is possible to have an absolute discharge permanently removed from one’s record by destroying the photographs, fingerprints and police file associated with the discharge. After the discharge waiting period and any other applicable waiting periods have expired, an individual may apply to have their photographs and fingerprints destroyed. This will destroy all record of the discharge. For many charges, the initial application will be denied, and the individual will require an appeal.
More Legal Information
In criminal cases, there are very strict rules governing what evidence can be used and how it can be used.
The rights enjoyed of all those within Canada are contained in the Canadian Charter of Rights and Freedoms.
Criminal procedure is the process by which an accused person is arrested and brought through the justice system.
Sentencing refers to the punishment that is ordered when an individual is found guilty of a criminal offence.