What is a Conditional or Absolute Discharge in Canadian Law?

When individuals are charged with certain offences like domestic assault, theft, or even drug possession, conditional and absolute discharges are offered by the Crown Attorney as an appropriate sentence for the offence – often followed by probationary periods or terms like PARS, drug rehabilitation, or counselling.  The article below is intended to give the reader a very general understanding of what conditional and absolute discharges mean under Canadian criminal law. 

It cannot be stressed enough that no article or text can match the wisdom and advice of an experienced criminal lawyer and if you or someone you know if facing charges, you should contact one immediately to discuss your options. 

Under the Criminal Code of Canada there are a wide array of sentences that an individual may receive after they are found guilty.  Those sentences include jail, fines, probation, conditional sentences (house arrest), restitution orders, and discharges.

Discharges are the most favourable on the range of sentences because they are no permanent “records” and will either be expunged from the CPIC (RCMP database) after a certain period has passed.

There are a few technical facts that one ought to know about discharges:

• A judge may impose a discharge for any criminal offence where there is not a specific statutory provision stating otherwise.
• If a person accepts a Crown offer for a conditional discharge, they are still required to admit facts that would meet the essential elements of the crime and are therefore found guilty by the judge.
• Although a person is found “guilty”, they are not “convicted”
• As stated, discharges are removed from certain police databases after a certain period of time
• If granted a discharge, a person may honestly answer that “They have never been convicted of a criminal offence”.  However, if asked “Have you ever been found guilty of a criminal offence?”  the answer would be “Yes”.

The applicable statute that sets out how discharges are to be dealt with is the Criminal Records Act, Chapter C-47, which states:

Discharges	6.1 (1) No record of a discharge under section 730 of the Criminal Code that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister, if (a) more than one year has elapsed since the offender was discharged absolutely; or (b) more than three years have elapsed since the offender was discharged on the conditions prescribed in a probation order.
Purging C.P.I.C.	(2) The Commissioner shall remove all references to a discharge under section 730 of the Criminal Code from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police on the expiration of the relevant period referred to in subsection (1). 1992, c. 22, s. 6; 1995, c. 22, s. 17(E).
Disclosure to police forces	6.2 Notwithstanding sections 6 and 6.1, the name, date of birth and last known address of a person who has received a pardon or a discharge referred to in section 6.1 may be disclosed to a police force if a fingerprint, identified as that of the person, is found (a) at the scene of a crime during an investigation of the crime; or (b) during an attempt to identify a deceased person or a person suffering from amnesia. 1992, c. 22, s. 6.

As we can see above, discharges take two forms: a discharge with conditions (i.e. a “conditional discharge”) and a discharge without conditions (i.e. an “absolute discharge”). 

With a conditional discharge, the person’s records in CPIC are not expunged until three years after the completion of the terms of the conditions set out in the probation order.  As an example, if a person was granted a conditional discharge on March 1, 2009 with conditions for 12 months (like keep the peace and be of good behaviour), then the date of expunging would be 12 months + 3 years = March 1, 2013.

Alternatively, an absolute discharge would be one year after the date the discharge was imposed.  using the same example, the date of expunging would be March 1, 2010.

There are also several practical considerations that ought to be taken into account and discussed with your lawyer:

• Expunging records from CPIC will not necessarily mean that the police department who made the arrest will necessarily follow the same rules.  Some police forces take the view that they will retain the records regardless of the outcome and may be disclosed in certain circumstances.
• Different jurisdictions outside of Canada may take a very different view of discharges and not necessarily consider these as pardons like the Canadian law presently does.

It is critically important that before accepting any such offer by the Crown Attorney, and deciding whether a discharge is appropriate for your particular set of circumstances, that you speak to an experienced criminal defence lawyer who can explain in greater detail all the benefits and disadvantages of discharges.  I can be reached at (416) 220-0413 for a consultation or you may visit my website at www.criminallawyerintoronto.ca for more information.