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 among the most lenient sentencing options available. A conditional discharge allows the court to find that an individual has committed a criminal offence without giving the individual a permanent criminal record.

When a conditional discharge is granted, 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?

It is possible to be granted a conditional discharge for many of the offences outlined in the Criminal Code. Pursuant to 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 for which the maximum penalty prescribed in the Code is fourteen years in prison and where there is no minimum penalty prescribed by the Code.

The Legal Test

Section 730(1) of the Criminal Code outlines the legal test for a conditional discharge. It indicates that a sentencing Court should only agree to grant a conditional discharge where it would not be against the public interest and would be in the best interests of the offender to do so.

Granting a conditional discharge will almost always be in the best interest of the accused. Criminal records are permanent in Canada and having a criminal record can have negative consequences well into the offender’s future.

Granting a conditional discharge will not always be in the best interest of society. To ensure a safe society, our criminal justice system must send the strong message that those who commit criminal offences will be caught and punished. To accomplish this, the system must charge and convict some individuals to maintain order.

The court will find that it is not in the public interest to grant a conditional discharge where they have reason to believe the offender will reoffend in the future. Where the court believes an accused will commit another offence 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 a violent sexual assault on a stranger. Due to the predatory nature of the offence and the fact that the victim was a stranger, it is in the public interest to have a record of the offender’s behaviour to protect the public from another similar attack.

Negative Consequences Associated with Conditional Discharges

While a conditional discharge will disappear from the offender’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 vigorous background checks available and may include non-conviction information. This may make it difficult for an individual with a conditional discharge to work with certain vulnerable populations.

A conditional discharge may also impact an individual’s ability to travel outside of Canada. Other countries, including the Unites States, may 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 the offender’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 applying to have the police file including photographs and fingerprints destroyed. After the discharge waiting period and any other applicable waiting periods have expired, the offender may apply to the local police service to have the records destroyed. If approved, this process will destroy all record of the discharge. For many charges, the initial application will be denied, and the individual will require an appeal.

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