Absolute and Conditional Discharges
Absolute and conditional discharges allow an offender to avoid a criminal record for their offense. Discharges are most common if the offender has no prior record and the circumstances/harm resulting from the offense is relatively minor. Given that a criminal record has a negative impact on an offender's ability to travel and obtain employment, obtaining a discharge for their client is a primary objective of many defence lawyers.
The difference between an absolute and conditional discharge is that an absolute discharge is granted without any conditions on the offender, while the conditional discharge requires specific terms that must be complied with in order for the discharge to be granted. Conditional discharges are much more frequently ordered than absolute discharges.
Unlike diversion programs, the Crown's consent is not required for an offender to obtain a discharge, however it is far more likely to be granted with the consent of the Crown. For this reason, it is essential to ask for a conditional discharge when discussing sentencing with the Crown prosecutor.
Conditional DischargeIf the court (judge) agrees to a conditional discharge, it means the offender must successfully complete specific conditions before the discharge is granted. Most often, this includes a period of probation that must be successfully completed.
Typical probationary conditions such as keep the peace and be of good behaviour, avoid contact with victim, avoid drugs or alcohol are commonly attached to in conditional discharges. Also, the offender may be required to pay restitution to the victim within a certain timeframe.
If the offender breaches any of the terms of probation, they risk losing the conditional discharge (thus acquiring a criminal record). Normally, the offender will have to appear in court and demonstrate they met the conditions of probation in order to obtain the discharge.
Requirements for a DischargeThe criminal code (s. 730) states a discharge is only to be granted in instances that are:
1) in the accused's best interest; and
2) in the interest of the public
Discharges, by law, are only available to crimes with no prescribed minimum penalty.
A discharge will not necessarily be granted just because the accused is a first time offender, or because the charge is relatively minor. In order for a court to grant an absolute or conditional discharge, the offender may have to work to convince the judge that it is necessary. In other words, courts will not always grant a discharge simply because it is generally accepted that a criminal record would negatively impact the offender's life.
For example, if a 65 year old on CPP is charged for the first time, the court may be reluctant to grant a discharge on grounds that it would effect his employment. The court would likely require evidence that not granting the discharge would have a specific negative impact on the accused. Further, if the offender requests a discharge because he is worried about not being able to travel to the US, the court may want specific evidence that travel to the US is necessary (to see relatives or for employment). If the offender is a truck driver and needs to enter the US regularly, he would have a much stronger argument for a discharge.
If the crown is not prepared to consent to a discharge, the offender will have to convince the court that it is justified. Sometimes the Crown will choose not to recommend a conditional discharge, but also state they are not opposed to one either.
Criminal Discharges and CPICThose who receive a conditional discharge ought to be aware that a record of their offense may still be listed in the CPIC database for up to three years. This means upon attempting to cross the US border the US customs service may be aware of the criminal charge/conviction (and could use this as grounds for refusal).
Offenders who receive a conditional or absolute discharge who are looking to travel to the US should confirm with CPIC that their record has been removed from the system prior to attempting to cross the border. Otherwise, they risk being denied entry and the charge being permanently retained in the US database. For more information, please see our US travel and criminal records pages.
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