The Differences Between a Conditional and Absolute Discharge

Written on behalf of Barrison Law
Prison hallway representing the difference between an absolute and conditional discharge

In Canadian criminal law, a discharge is a sentence outlined in section 730(1) of the Criminal Code. Further, depending on the circumstances, a court may impose either a conditional or absolute discharge. When a person found guilty of an offence receives a discharge sentence, a conviction will not be registered on their criminal record, although the sentence will be noted. However, the type of discharge will impact the conditions that person will be required to follow.

What is a Discharge Sentence?

In Canada, a discharge is a sentence the court may grant concerning certain offences. Section 730(1) of the Criminal Code states that:

730 (1) Where an accused… pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).”

A discharge is not an option in every case, as it is subject to limitations prescribed in the Criminal Code. For example, criminal offences such as sexual assault with a weapon and arson, as these crimes have a maximum punishment of 14 years in jail.

When Will a Discharge be Granted?

Two types of discharges are available under the Criminal Code, specifically an absolute discharge and a conditional discharge. It is important to remember that the sentencing judge has the discretion to choose whether or not to grant an absolute or conditional discharge. In some cases, the Crown Prosecutor and the criminal defence counsel may jointly recommend a discharge; the presiding judge must satisfy themself that it is the appropriate sentence in the circumstances.

Once a finding of guilt has been made, instead of convicting an offender, they are discharged. When a discharge is granted, a conviction for the crime will not be registered on the offender’s criminal record. When deciding whether a discharge sentence is appropriate, the judge may consider factors such as:

  • The defendant’s criminal history;
  • The defendant’s personal circumstances;
  • The nature of the offence and the circumstances under which it was committed; and
  • The public interest.

What is an Absolute Discharge?

An absolute discharge is the lowest-level sentence that may be given to a defendant who has been found guilty of a criminal offence. While a defendant is still technically convicted of a criminal offence, under an absolute discharge, they are not subject to additional penalties or conditions.

While a finding of guilt will be made, a conviction will not be registered, and the offender will not face additional punishment or a probationary period. The sentence, however, will remain on an individual’s criminal record for one year after the date they received the discharge. However, they are not required to apply for a pardon to remove the discharge from their record.

What is a Conditional Discharge?

A conditional discharge is a sentence given to a defendant who is found guilty of a criminal offence. However, an offender who receives a conditional discharge is required to follow and adhere to specific conditions, as set out by the court, for a specified period of time following the sentence. These conditions will be included in a probation order and may include, for example:

  • regular check-ins with a probation officer,
  • participating in community service,
  • attendance at counselling programs,
  • not being permitted to possess weapons or drugs,
  • remaining in the same province, or
  • not engaging in certain actions, behaviours, or with certain people.

If the person successfully complies with all of the required conditions, the discharge will be considered to be complete. Since July 24, 1992, the conditional discharge sentence will remain on an individual’s criminal record for three years following the sentencing date. At the conclusion of three years, the conditional discharge record will be sealed. However, if a person fails to comply with the conditions of their probation order, they may be charged with a criminal offence. Further, if an offender is convicted of a new crime during their probation period, the court may revoke the discharge.

Section 730(4) of the Criminal Code further states that the court may exercise its authority under section 732.2(5) and revoke the discharge, resulting in the offender being convicted of the criminal offence, and instead impose “any sentence that could have been imposed if the offender had been convicted at the time of the discharge.”

How Will a Discharge Impact My Future?

Both an absolute discharge and conditional discharge will be listed on a person’s criminal record and background check for a certain period of time. Therefore, if an individual who has received a discharge requires a background check or security clearance, for example, in relation to a new employment opportunity, they should be aware that it may impact the outcome of such an opportunity. Further, a discharge may impact a person’s ability to travel to certain countries, particularly as some countries do not recognize a discharge as a non-conviction.

The Criminal Defence Lawyers at Barrison Law in Oshawa Provide Representation for Serious Criminal Charges

The experienced criminal defence lawyers at Barrison Law provide skilled and strategic defences for individuals charged with various criminal offences, including driving offences, assault, court order breaches, and murder and manslaughter. Our lawyers represent clients throughout Durham and the Central East Regions of Ontario and work to ensure our clients obtain the best possible outcome.

At Barrison Law, we offer several payment options and 24-hour phone service for your convenience. To schedule a confidential consultation with one of our team members, contact our office at 905-404-1947 or online.