The court can impose various sentences for people facing criminal charges in Canada. If you are convicted, the consequences and impact on your life could be severe. While there’s no guarantee of a favourable outcome, one way to potentially lessen the harm from a criminal conviction is with a conditional or absolute discharge. Below, we’ll explain the fundamentals of conditional and absolute discharges under the Canadian Criminal Code, including definitions and terms, how they differ, the process of securing a discharge, and how this type of sentencing will affect your criminal record.

What is a Conditional & Absolute Discharge in Canada?

Once you face charges in court for a criminal offence, several outcomes are possible. If you receive a conviction at trial or enter a guilty plea, potential sentencing outcomes include:

• Absolute or conditional discharge
• Monetary fine
• Fine and probation
• Prison
• Prison and probation
• Conditional sentence order
• Suspended sentence
• Intermittent sentence
• Intermittent sentence and probation

Under section 730(1) in Canada’s Criminal Code, a discharge sentence indicates that the person is guilty of a criminal offence but doesn’t include an official criminal conviction. Discharge sentences are most common for minor, non-violent offences and first-time offenders. However, only certain crimes are eligible, such as:

• Crimes with no mandatory minimum prison sentence
• Crimes that are not punishable by 14 years or life imprisonment

To receive a discharge, offenders must plead guilty in court even though they’re not technically receiving a conviction. Canada offers two types of discharges: conditional and absolute.

Conditional Discharge

To receive a conditional discharge: the offender pleads guilty but avoids a criminal conviction. However, there’s one catch: they must follow specific, pre-determined requirements (conditions) set by the court. A conditional discharge will remain on the offender’s criminal record for three years. During those years, they must follow the court’s conditions and will likely have a probation period between 12 and 36 months. If the offender doesn’t meet the terms or fails to complete probation successfully, the court will revoke the conditional discharge. They may even impose a harsher sentence accompanied by an official criminal conviction.

Typical Terms for a Conditional Discharge

It’s important to note that every case is different. Therefore, it’s impossible to give an exact answer regarding the specific terms an offender could receive for their offence. However, the most common conditions include:

• Keeping the peace and displaying good behaviour
• Enrolling in probation
• Completing community service
• Victim restitution
• Attending therapy or counselling
• Alcohol and drug sobriety
• Having no victim contact

Absolute Discharge

An absolute discharge doesn’t require the completion of any conditions or terms. When a defendant receives an absolute discharge, there are no findings of guilt or conviction on their record. They can leave the court without any consequences, punishment, or legal conditions/obligations they must follow. The one exception is in cases where the judge orders the offender to make restitution to the victim of their crime.

If you receive an absolute discharge, your crime and sentence will be in the Criminal Records Repository of the Canadian Police Information Centre for a period of one year. Automatic expungement occurs after that year passes. 

How Can You Increase the Likelihood of Receiving a Discharge Sentence?

For people facing charges under Canadian law, receiving an official criminal conviction on their record may have serious and far-reaching consequences in their life. Of course, defendants want the most favourable outcome for their case. Receiving a discharge is one way to lessen a criminal offence’s harm and negative effect. But how is it possible to secure this kind of sentence?

The first step is to seek professional legal advice from a criminal defence counsel. Your lawyer can negotiate with the Crown and will fight for your best interests. Once you have defence counsel, they can ask the judge to grant a discharge.

However, first, the judge must carefully consider whether this type of sentence is in the best interest of both the defendant and the general public. Furthermore, they will weigh factors such as:

• The severity of the crime
• The impact on the victim
• The offender’s motivation for committing the crime
• If the offender was in a position of trust (i.e., teacher, police officer, etc.)
• If the offender has a good standing and strong presence in the community
• Whether the offence was impulsive or planned

While there’s no guarantee, having a lawyer’s support, guidance, and knowledge at your disposal will increase the chance of receiving a favourable outcome.

How Does a Discharge Affect Your Criminal Record?

The type of discharge sentence you receive will determine the impact on your criminal record. For example, an absolute discharge will not stay on your record, whereas a conditional discharge will remain until you complete the court’s terms.

However, while you won’t have a conviction, a record of your original arrest and guilty plea in court will be in the Canadian police database. An absolute discharge stays in the database for a year, while conditional discharges remain for three years. After that time, the database should automatically purge your record. However, it doesn’t always happen that way. If not, you should send a written request for expungement to the CPIC.

Call Manbir Singh Sodhi Criminal Defence Law

A conditional and absolute discharge are similar but not identical. Discharges allow offenders to plead guilty without receiving a criminal conviction. However, conditional discharges require offenders to complete certain conditions, such as probation, community service, and/or restitution. On the other hand, defendants with an absolute discharge aren’t under any legal obligations.

If you’re facing criminal charges in Canada, your first phone call should be to a defence lawyer. At Manbir Singh Sodhi Criminal Defence Law in Brampton, we provide sound legal representation, acting as strong advocates for our clients regardless of their circumstances. Call our firm now at 905-457-2546 to book an initial consultation with our attorneys and learn more about whether your case may be eligible for a conditional or absolute discharge.