What is a Discharge, Suspended or Conditional Sentence?

A discharge in a criminal case is a finding is guilt without a criminal record and is considered a non-conviction. An individual who pleads guilty to a crime or is found guilty at trial may be granted a discharge if the sentencing court deems it appropriate. If a discharge is granted, the accused will have a temporary record that will disappear after the discharge waiting period has expired.

As outlined in section 730(1) of the Criminal Code, there are two types of discharges: absolute and conditional. Both are discussed in more detail below.

A suspended or conditional sentence is a finding of guilt accompanied by a criminal record, but without being sentenced to a period of incarceration. An offender may be granted a suspended or conditional sentence where the court is satisfied that no benefit will come from the offender’s incarceration.

As outlined in section 742.1 of the Criminal Code, where an individual is convicted of an offence and sentenced to less than two years imprisonment, the court may order that offender serve their sentence within the community, subject to certain conditions outlined in section 742.3 of the Code, if

(a) The court is satisfied that the offender would not endanger the community and that the sentence would be in line with the fundamental principles of justice as outlined in sections 718 and 718.2 of the Code.

(b) The offence is not punishable by a minimum term if incarceration.

(c) The offence is not an indictable offence punishable by a maximum of 14 years in prison or more.

(d) The offence is not a criminal organization offence, or a terrorism offence, prosecuted by indictment where the maximum penalty is 10 years in prison or more.

(e) The offence is not an indictable offence for which the maximum penalty is more than 10 years imprisonment that,

i. Resulted in bodily harm. ii. Involved importing, exporting, producing, or trafficking of drugs. iii. involved the use of a weapon

(f) The offence is not any of the following indictable offences; prison breach, criminal harassment, sexual assault, kidnapping, trafficking in persons – material benefit, abduction of a person under fourteen, motor vehicle theft, theft over $5,000, breaking and entering a place other than a dwelling-house, being unlawfully in a dwelling-house, and arson for fraudulent purpose.

Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.

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Legal Information

Frequently Asked Questions

What is an Absolute Discharge?
Will and Absolute Discharge Affect my Ability to Travel?
What is a Conditional Discharge?
Will a Conditional Discharge Affect my Ability to Travel?
Does a Discharge Show up on a Criminal Record Check?
What is a Suspended Sentence?
What is a Conditional Sentence?
Will I have a Permanent Criminal Record if I Receive a Suspended or Conditional Sentence?

Additional Resources

Sentencing Factors
Keeping Your Charges Private
Release from Police Custody
Resolving Shoplifting Charges
U.S. Waivers
Vulnerable Sector Screening
Consequences of a Criminal Record
Immigration Consequences
Elements of a Crime
Your Rights

What is an Absolute Discharge?

An absolute discharge is a finding of guilt without a criminal record. An individual who is granted an absolute discharge will not face a period of probation and their case will conclude the day the discharge is granted. A temporary record of the discharge will remain for a period of one year, after which the discharge will not appear on a background check. The records related to the discharge will automatically be sealed in the RCMP database after the one-year period has elapsed.

Absolute discharges may only be awarded in certain cases, for certain eligible offences. An offender may be awarded an absolute discharge where they have been convicted of an offence for which the maximum punishment is less than fourteen years imprisonment. The sentencing court may grant an absolute discharge where it is in the best interest of the accused and not contrary to public interest. Once the discharge is granted, the accused is deemed to have not been convicted of the offence.

Will an Absolute Discharge affect my Ability to Travel?

It is important to note that while Canada acknowledges the distinction between an absolute discharge and a conviction accompanied by a criminal record, other countries may not. Canadian’s may have difficulty traveling outside of Canada during the one-year temporary record period as a result. Other countries, especially the U.S., may view an absolute discharge as a criminal conviction and deny entry to the traveler.

While the RCMP automatically seals the discharge records after one-year, other countries are under no such obligation. A Canadian who travels to another country within the one-year period runs the risk of having their discharge recorded in the foreign countries database. Once recorded, these records may remain indefinitely.

What is a Conditional Discharge?

A conditional discharge is a finding of guilt without a criminal record. An individual who is granted a conditional discharge will be placed on a period of probation for up to 3 years. The sentencing judge will attach conditions to the probation. Conditions commonly attached to a conditional discharge include;

  • Reporting to a probation officer
  • Performing community service hours
  • Keeping the peace and being of good behaviour
  • Remaining within the jurisdiction of the convicting court
  • Refraining from owning or possessing weapons

A conditional discharge can only be awarded where the accused has been convicted of an offence for which the maximum penalty is less than fourteen years in prison. The Court will grant a conditional discharge where they believe it is in the best interest of the accused and not against the public interest. Once the discharge is granted, the accused is deemed to have not been convicted of the offence.

If the accused is convicted of another criminal offence while on probation for the conditional discharge, the court may decide to revoke the discharge, enter a conviction into the offender’s criminal record and impose a new sentence.

Will a Conditional Discharge affect my Ability to Travel?

While the Canadian justice system recognizes a conditional discharge as a non-conviction, this is not the case in other countries. The U.S. for example does not recognize a discharge as a non-conviction and could use it as a basis to deny entry.

Once a traveller has been denied entry once on account of a discharge, the discharge will likely be logged into the foreign countries database and may remain there well past the discharge expiration date in Canada. In some cases, this means that travelling during the discharge waiting period is not advisable.

Does a Discharge show up on a Criminal Record Check?

As outlined above, both absolute and conditional discharges remain on the offender’s record temporarily for between 1 and 3 years, depending on the type of discharge. After the discharge waiting period has expired, the RCMP will automatically seal the record in their system. Absolute discharges received on or after July 24, 1992 are sealed after a one-year waiting period, and conditional discharges received on or after July 24, 1992 are sealed after a three-year waiting period. Those who received an absolute or conditional discharge before July 24, 1992 must apply to have their records sealed.

During the waiting period, the discharge will appear on a background check. After the waiting period has ended and the records have been sealed, they will not appear on most background checks. There are, however, exceptions. The name, birth date and last known address of the accused may be disclosed by law enforcement after the waiting period has elapsed if a fingerprint of the person is found at the scene of a crime, or in an attempt to identify a deceased person or a person who has amnesia.

A discharge, conditional or absolute, may also appear on a vulnerable sector check. The arresting police department may choose to disclose the discharge records if they feel the records relate in some way to the position the accused is applying for. For example, an accused granted a discharge for an offence involving violence against a child who is now applying to work with children may have their discharge disclosed after the waiting period has expired.

In addition to the records held by the RCMP, the arresting police department will also retain records of arrest including fingerprints and photographs of the accused. Different jurisdictions have different policies on purging records and in many cases, it could be several years or even decades before the police department purges the records on their own. To ensure these records are destroyed in a timely manner, an offender may apply directly to the arresting police department to have the records destroyed. Each jurisdiction manages fingerprint and photograph destruction differently.

Generally, an individual will fill out a form provided by the arresting police department or write a letter to the department asking for the records to be destroyed. The department will then review the application and determine whether they will destroy the records. An individual who has been convicted of certain serious offences including sexual offences or serious violent crimes may initially have their application denied. If denied, the individual will have the opportunity to appeal the decision, explaining why the records should be destroyed.

What is a Suspended Sentence?

As outlined in section 731(1) of the Criminal Code, where an individual is convicted of an offence, a court may, considering the age and character of the offender, the circumstances surrounding the commissions of the offence, and the nature of the offence,

  • If no minimum punishment is prescribed by law, suspend the passing of a sentence, and order the offender to be released on probation with conditions.

This means that after considering the age and character of the offender, the nature of the offence, and the circumstances surrounding the offence, the court may choose to suspend the passing of a prison sentence and order the offender to abide by conditions of probation.

The probation order accompanying a suspended sentence will remain in effect for between one and three years. Conditions will be attached to the probation order and the offender will be ordered to abide by these conditions for the duration of the order.

Common conditions attached to a suspended sentence include:

  • Keep the peace and be of good behaviour.
  • Refrain from contacting the complainant either directly or indirectly or from going to any place specified in the probation order or anywhere the complainant is known to be.
  • Appear before the court when ordered to do so.
  • Report to and notify the probation officer of any change in name, address, or employment.
  • Refrain from consuming drugs or alcohol.
  • Complete a specific number of community service hours.
  • Complete a drug or alcohol treatment program.
  • Attend counseling as directed by the probation officer.
  • Pay restitution to the victim.

If the offender breaches the conditions of their probation order at any point before the order has expired, they will be guilty of a new criminal offence. Section 733.1 outlines the offence of failure to comply with probation order. It states that an offender who, without reasonable excuse, breaches the conditions of their probation order, is guilty of a hybrid offence. If convicted of the offence, the offender could face two years less a day in prison and/or up to a $5,000 fine where the Crown elects to proceeds summarily and up to four years in prison where the Crown elects to proceed by indictment.

What is a Conditional Sentence?

Essentially, a conditional sentence is a jail sentence served at home, also known as house arrest. An offender who receives a conditional sentence will be required to remain inside their residence for a period of time as ordered by the court. The sentence will appear on the offender’s criminal record as a period of incarceration.

Conditional sentences will also be accompanied by compulsory conditions as outlined in section 742.3(1) of the Criminal Code. Every offender who receives a conditional sentence must abide the following conditions

(a) Keep the peace and be of good behaviour.

(b) Appear before the court when required.

(c) Report to a supervisor (similar to a probation officer)

    1. Within two business days, or a longer period if instructed by the court, after the conditional sentence order is imposed, and
    2. Report to a supervisor thereafter as ordered and in the manner directed by the supervisor.

(d) Remain within the jurisdiction of the convicting court unless granted permission to leave by the court.

(e) Notify the court or supervisor in advance of any change of address, employment, occupation, or name.

In addition to the compulsory conditions outlined in section 742.3(1) of the Code, section 742.3(2) of the Code also includes a list of optional conditions that the court may impose, including abstaining from consuming alcohol or drugs, abstaining from owning or possessing a weapon, providing for the support or care of dependants, attending treatment programs, or performing up to 240 hours of community service in a period not exceeding eighteen months.

Will I have a Permanent Criminal Record if I Receive a Suspended or Conditional Sentence?

Yes. Both a suspended sentence and a conditional sentence are convictions, and both will result in a permanent criminal record for the offender. The conviction will appear on virtually all background checks.

To have the records destroyed, the offender can apply for a record suspension, formerly known as a pardon, after a certain period of time has elapsed and if they meet the eligibility requirements. Section 4(1) of the Criminal Records Act states that an individual is ineligible for a record suspension until the following waiting periods have elapsed after the expiration of the sentence, including a sentence of imprisonment, a period of probation and the payment of any fine imposed for an offence.

  • Ten years, where the case is prosecuted by indictment or is an offence for which the offender was punished by a fine of more than $5,000 or imprisonment of more than six months.
  • Five years, where the case is prosecuted on summary conviction.

This means that an accused who is convicted of a summary conviction offence will have a five-year waiting period and an individual convicted of an indictable offence will have a ten-year waiting period.

In addition to the mandatory waiting period, an individual must also be eligible for a record suspension under section 4(2) of the Criminal Records Act. The section states that an offender will be ineligible for a record suspension where they were convicted of an offence listed in Schedule I of the Act. Some offences listed in Schedule I include sexual interference, luring a child, child pornography, sexual exploitation, and invitation to sexual touching.

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