Sentencing: Absolute and Conditional Discharges

The human condition is such that even a person of good character could make a mistake and commit a criminal offence. In some cases there is no possibility of an acquittal or having the charge withdrawn and a finding of guilt may be inevitable. The next step is sentencing. However, their future need not be ruined as a result of this mistake. Merely because a person pleads guilty or is found guilty after trial does not mean the person must have a record of criminal conviction.

Following a finding of guilt the trial judge has the discretion to grant a conditional or absolute discharge and spare the person a criminal conviction. The value of receiving a discharge as opposed to even a lenient sentence such as a suspended sentence cannot be overstated. A person who receives a discharge can honestly state they have never been convicted of a criminal offence. Persons who are granted a discharge do not later have to consider applying for a pardon as they have never been convicted.

Although it requires detailed legal advice to fully understand the full meaning of a discharge for most persons a discharge can have life saving effects. The ability to respond that you do not have a criminal conviction can be critical to employment or travel. Absolute discharges are removed from the Canadian Police Information Center (“CPIC”) after 1 year and conditional discharges removed after 3 years. Given the recent changes to the Criminal Records Act, eliminating pardons and requiring persons to wait for extended periods of time to apply for a record suspension, the fact that the finding of guilty will be removed by operation of law from CPIC after either 1 year or 3 years is obvious.

A discharge cannot be granted for every offence but it can for many offences, such as some domestic violence offences. If it is available, the presiding Judge considers if it is in the best interests of the accused and not contrary to the public interest. If that test is met then instead of convicting the person found guilty the Judge can direct that the person be discharged.

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