A discharge, whether absolute or conditional, allows you to avoid a criminal record. It is sought after by people facing the criminal justice system for the first time. Our criminal lawyers explain what a discharge is and the conditions you must meet to obtain one.
What is a discharge?
A discharge is a sentence provided for in the Criminal Code. It applies when a person is found guilty of a criminal offence, either because they chose to plead guilty or because the court found them guilty after a trial. There are two types of discharge: the absolute discharge and the conditional discharge.
Absolute discharge
An absolute discharge is the least severe sentence in the Criminal Code. A person who receives an absolute discharge has no sentence to serve: no fine to pay, no community service to perform, no prison term to serve, etc.
Conditional discharge
A conditional discharge comes with conditions to comply with, which are imposed through a probation order. The conditions can vary.
For example, the offender could have to make a donation to a charity or pay compensation to the victim, perform community service hours to give back to society, or attend therapy to help resolve personal difficulties, etc.
In that case, the effects of the discharge are suspended until the end of the probation period, to make sure that the person has complied with all the conditions imposed.
How to obtain a discharge
A discharge is not an exceptional measure, but it is not automatic either. Very specific criteria must be met for the court to grant it.
Note that discharges are available only to individuals, not to organizations.
Could a criminal record have a major impact on you? Meet with one of our criminal lawyers to discuss whether you could benefit from a discharge.
A discharge depends on the criminal offence
First, a discharge is only possible for offences that do not carry a minimum sentence.
For example, the following offences carry a minimum sentence:
- Impaired driving or driving with a blood alcohol level over the legal limit*;
- Making, distributing, possessing or accessing child pornography;
- Sexual assault of a person under the age of sixteen.
*This means that an offender cannot be discharged for a drinking and driving offence, which is why an acquittal is so important to avoid a criminal record.
As further examples, the following offences do not carry a minimum sentence and could, if the conditions listed below are met, result in a discharge:
- “Simple” assault
- Theft under $5,000;
- Simple possession of drugs.
Second, a person cannot receive a discharge if they have been found guilty of an offence punishable by imprisonment for fourteen years or more. For example, the following offences carry such a sentence:
- Aggravated assault
- Fraud over $5,000;
- Manslaughter;
- Robbery.
A discharge depends on the best interests of the accused
Beyond the type of offence, the Criminal Code provides that a discharge must be “in the best interests of the accused.” The courts have considered the meaning of this expression many times.
Generally, this criterion is met if the accused is a person of good character, with no criminal record, who raises no concerns in terms of specific deterrence or rehabilitation, and for whom the consequences of a conviction would be particularly harmful. This means, among other things, that the court must not fear that the accused will reoffend.
To illustrate what “best interests” means, here are examples of people for whom the courts could recognize such an interest:
- A young adult;
- A student;
- A person who would lose their job because of a criminal record;
- A person who needs to travel abroad, for example to the United States, whether for work or to visit family;
- A member of a professional order;
- A retired person who has never been in trouble with the law;
- A person with precarious status in Canada, whether as a permanent resident or otherwise.
As a further example, the criminal lawyers at our firm recently obtained a discharge for a man in his sixties who pleaded guilty to uttering death threats and assault. He was retired, had no criminal record and, in retirement, worked with vulnerable people. In addition, he needed to travel to the United States to visit family members. The stakes of a criminal record were high, and the court accepted our lawyers’ arguments regarding this man’s best interests.
If you also want to avoid the harmful consequences of a criminal record, consult one of our criminal lawyers now to assess your chances of obtaining a discharge.
Discharges and the public interest
In addition to the above criteria, a discharge must not be contrary to the public interest. Note that this does not mean the discharge must be in the public interest; it simply must not be contrary to it.
The term “public interest” refers to the general interest of the members of society. To assess this interest, the courts consider the seriousness of the offence, its prevalence in the community, the public’s attitude toward the offence and public confidence in the administration of justice.
The judge considering a discharge will also keep in mind the sentencing objective of general deterrence. This means the judge will have to decide whether a conviction is needed to deter the public from committing the offence in question.
Assessing the public interest requires considering many factors specific to each case. If you want to obtain a discharge, retain one of our defence lawyers, who will represent you with great rigour.
The effects of a discharge
A person who receives a discharge is “deemed not to have been convicted.” This means they will not have a criminal record for the offence for which they were discharged.
The waiting period
The effects of a discharge on your criminal record are not immediate. The Criminal Records Act provides that a certain period must pass before a discharge is removed from the Royal Canadian Mounted Police (RCMP) records. This period is 1 year for an absolute discharge and 3 years for a conditional discharge.
In addition, an application must be made to the court office to have the reference to the discharge removed from the court’s public record (known in Quebec as the “plumitif”). This is called an Application for non-disclosure of information contained in computerized criminal records and registers (Demande de non-communication de renseignements contenus aux registres et relevés informatisés en matière criminelle).
However, the periods mentioned above must have passed before such an application can be processed.
Failing to comply with discharge conditions
If you have received a conditional discharge, you must take the conditions imposed by the court very seriously.
If you commit an offence while the conditions of your conditional discharge are in effect, the court could intervene. It could revoke the discharge, convict you and impose any sentence that could have been imposed at the time, instead of the discharge.
It could also convict you and impose a sentence for the offence committed during the conditional discharge.
After a discharge: what to disclose?
A person who has been discharged will likely be asked about their criminal history in many situations, whether by a future employer, government agencies or the border services of various countries.
Here are the most common questions and the answers you must give if you have received a discharge.
- Have you ever been convicted / Have you been the subject of a conviction? No.
- Do you have a criminal record? No.
- Have you ever been found guilty of a criminal offence? Yes*.
*Important distinction: if you received a discharge for a criminal offence, it is because you were found guilty. However, you were not convicted. You must therefore answer “yes” to the question “Have you ever been found guilty?” You can then explain that you received a discharge.
Contact us
You now understand why a discharge is so attractive to someone who wants to plead guilty or who has been found guilty of a criminal offence. Retain one of our criminal lawyers to assess your chances of receiving a discharge.
Note: The information above is general in nature and does not constitute legal advice. For advice on your particular legal situation, feel free to contact one of our lawyers in Québec City or Lévis.
