Conditional Discharge
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: conditional and absolute. This page will focus on conditional discharges. Conditional and absolute discharges as a sentencing option are both outlined in section 730(1) of the Criminal Code.
What is a Conditional Discharge?
A conditional discharge is one the lowest sentencing options available to the court as it allows the court to find an individual guilty of an offence without giving them a permanent criminal record.
A conditional discharge is a finding of guilt, without entering a conviction on the offender’s criminal record. Instead, the offender is placed on probation for a period of time and given conditions to abide by during that time. If the offender successfully completes their probation the finding of guilt is discharged and automatically removed from the offender’s record after three years.
Conditional Discharges and Probation
When an offender is granted a conditional discharge, they will be placed on probation for between one and three years. While on probation, they will be required to abide by certain conditions.
The conditions of the probation order will be tailored to each offender and will be relevant to the offence for which the offender was found guilty. The offender will be required to report to their probation officer as instructed throughout their time on probation. Offenders may also be ordered to complete counselling as directed by their probation officer, refrain from having contact with a particular person or group of people, stay away from certain locations, refrain from possessing weapons or refrain from accessing the internet or parts of the internet.
Who can get a Conditional Discharge?
An individual may be granted a conditional 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 a conditional 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 a conditional discharge. It stipulates that the Court should only grant a conditional discharge where is in the accused’s best interest, and where it would not be against the public interest to do so.
Granting a conditional 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 a conditional 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 a conditional 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.
For example, it may not be in the public interest to grant a conditional 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 Conditional Discharges
While a conditional discharge will disappear from an individual’s record three years after the completion of their probation, there are still negative consequence associated with discharges.
A conditional discharge may continue to appear on a vulnerable sector check, even after the conditional 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 a conditional discharge on one’s record may make it difficult to attain employment with certain vulnerable populations like children or the elderly.
A conditional discharge may also impact an individual’s ability to travel outside of Canada or have immigration consequences. 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 a conditional discharge on their record.
What happens if a Breach a Condition of my Conditional Discharge?
If an individual breaches a condition of their conditional discharge, the Crown may reinstate the original charge against them and enter a criminal conviction for the offence. Breaching a condition of probation is also a criminal offence. Those who breach the probation conditions associated with their conditional discharge may be charged with an additional criminal offence which could result in jail time, more probation and/or a fine.
Can I Remove a Conditional Discharge from my Record?
A conditional discharge will automatically disappear from an individual’s record three years after the completion of their sentence. This means if the accused is sentenced to one year probation, their conditional discharge will be removed from their record four years after being sentenced.
A conditional 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 three-year waiting period has passed.
It is possible to have a conditional 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.
