Conditional vs. Absolute Discharge in Canadian Sentencing

August 20, 2021

When an accused person is found guilty by either pleading guilty or through a conviction after a trial, a judge may grant a discharge. In Canada, there are two types of discharges, Conditional and Absolute. In this post, we’ll discuss the implications of a discharge and examine the differences between the two different types. We’ll also look at how a criminal defence lawyer can help remove discharges from your criminal record. 

What Is A Discharge?

If someone is found guilty or pleads guilty, a judge can grant a discharge instead of imposing a jail sentence. According to section 730 of the Canadian Criminal Code, a discharge only happens if “it is in the best interest of the person and if it is not against the public interest.” A discharge means that the person does not receive a criminal conviction or a criminal record. 

Discharges usually are only granted to an individual who could be significantly harmed by a criminal record and who is usually a good person of good character. A discharge could be appropriate if the conviction would have significant repercussions. It is most commonly granted for less serious offences and first-time offenders. 

A discharge is different from a suspended sentence, where an individual is convicted of the crime and will receive a criminal record and serve a period of probation. 

An individual may be granted an absolute or conditional discharge. 

What Is A Conditional Discharge?

A conditional discharge is where the individual is granted a discharge on the condition that they follow certain restrictions and abide by specific requirements determined by the criminal courts. If these requirements or conditions are not met, it could lead to: 

  • the cancellation of the discharge, 
  • the conviction being registered, 
  • a more severe sentence 
  • the additional charge of breaching probation. 

Conditional discharges are probationary in that the individual has to prove their actions to the court. If the conditions are followed, the person is absolved of the offence. 

Some common conditions include:

  • Keeping the peace
  • Reporting to a probation officer
  • Perform set hours of community service
  • Remain employed or in school
  • Not have contact with specific individuals or go to specific locations

What Is An Absolute Discharge?

An absolute discharge is a discharge with no conditions or restrictions. They are granted when the offence is not too severe and where the conviction and sentence would impact the individual more than the wrongdoing they committed. 

What Are The Consequences of Having a Discharge on Your Record?

If you are granted an absolute discharge, you can claim that you have not been convicted of an offence and have no criminal record. However, a record of your discharge will still appear on your criminal record for one year until it is purged. It will also show up on any criminal records check for employment, volunteering, or a vulnerable sector check until it has been purged from your record. It could also prevent you from travelling to the United States if your offence is an excludable offence. 

If you are granted a conditional discharge, it will appear on your criminal record for three years or until you request to have it purged. 

How A Lawyer Can Help

A lawyer can help you file the necessary documents to ensure your discharge is properly purged after the required year or three years in the case of a conditional discharge. A lawyer can also help you request your entire file to be destroyed along with reports, fingerprints and pictures. If you need to travel to the U.S., a lawyer can help assess your case and determine the best course of action. 

If you are dealing with a conditional or absolute discharge, you need legal advice from an experienced lawyer by your side. William Jaksa has over ten years of experience as a criminal defence lawyer and has experience helping clients with conditional or absolute discharge. Contact William Jaksa today for a consultation on your case. 

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