Understanding Conditional and Absolute Discharges in Canada

In Canadian criminal law, a discharge allows an individual who has been found guilty to avoid a criminal conviction, provided certain legal and public interest criteria are met. Discharges are typically reserved for low-level, non-violent offences and first-time offenders where a conviction would cause more harm than good.

There are two types of discharges available: absolute and conditional, both governed by section 730 of the Criminal Code.

Absolute Discharge

An absolute discharge means the person is deemed guilty but is not subject to any conditions. They are free to go without further court involvement, and the discharge will be automatically removed from the Canadian Police Information Centre (CPIC) after one year.

Conditional Discharge

A conditional discharge, on the other hand, requires the individual to comply with a probation order often lasting up to three years which may include conditions such as attending counselling or community service. If the individual complies with these conditions, the discharge will be removed from CPIC after three years.

While a discharge is not a conviction, it is still a finding of guilt. This distinction is critical for immigration, employment, and international travel purposes. The benefit of a discharge is that once the record is purged, the individual does not have a criminal record in the traditional sense although there may still be residual effects, such as record checks showing the discharge during the retention period.

Discharges are only available for offences that do not carry a mandatory minimum sentence and where the maximum punishment is less than 14 years of imprisonment. They are not available for serious or indictable offences like aggravated assault, weapons trafficking, or impaired driving causing death.

The leading case on discharges is R. v. Fallofield, 1973 CanLII 1300 (BCCA), where the British Columbia Court of Appeal emphasized that a discharge may be granted when it is in the best interest of the offender and not contrary to the public interest.

The Court outlined that factors such as rehabilitation, employment impact, and future consequences should be carefully weighed when determining whether to grant a discharge. The judge must be satisfied that the impact of a criminal conviction would be disproportionate given the offender’s character and the circumstances of the offence.

At sentencing, if the Crown opposes the discharge, the matter becomes a contested sentencing hearing. The defence and Crown each present submissions, and the judge must evaluate whether a discharge is warranted based on evidence, sentencing principles, and the objectives of rehabilitation and proportionality.

If you or someone you know is facing charges and seeking to avoid a conviction, a discharge may be an option. The process, however, is discretionary and often contested. It’s essential to work with experienced defence counsel to present a strong case for this outcome.

For clear advice and trusted representation, contact Linh Pham at (306) 502-5987 for a free consultation.

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