Absolute and conditional discharges are types of sentences in Canada’s criminal justice system. Want to learn more?
What is a discharge?
A discharge is a legal sentence in Canada set out in section 730(1) of Canada’s Criminal Code. Both absolute and conditional discharges are a finding of guilt but not a conviction. This means that someone who receives a discharge has either pled guilty, or been found guilty after a trial, to one or more offences. Unlike all other possible sentences after a finding of guilt in our justice system, there is no criminal conviction if an offender receives an absolute or conditional discharge.
A criminal record only exists if an individual has a conviction. Therefore, an absolute or conditional discharge does not result in a criminal record.
Section 730(1) of the Criminal Code says a judge can only grant a discharge if it is:
- in the interests of the accused, and
- not contrary to the public interest.
The judge weighs these competing and congruent prerequisites when deciding whether a discharge is an appropriate sentence.
These factors must also align with the general principles of sentencing, set out in section 718 of the Criminal Code.
What are the differences between an absolute and conditional discharge?
Because there is a finding of guilt but no conviction, an absolute discharge is the lowest sentence an individual can receive in our criminal justice system. There are no court orders that follow or conditions that an individual need to comply with. (The exception being any ancillary orders like a weapons prohibition or a DNA order that a judge may impose under the Criminal Code.)
A conditional discharge is like an absolute discharge except that the individual must abide by a probation period. This makes a conditional discharge more onerous than an absolute discharge. The maximum term of probation is 3 years. Often though the probation term imposed for a conditional discharge is between 12 and 24 months for a first-time offender.
A conditional discharge is exactly how it sounds: a discharge of a finding of guilt that is conditional on the individual successfully completing a probation period. Successfully completing a probation period means the individual abides by all terms on the probation order, pays all fines and surcharges, and does not accrue further findings of guilt. If an individual is not successful on probation, the court can substitute the discharge for a conviction, thereby resulting in a criminal record.
Do I need a record suspension (formerly known as a pardon) if I receive an absolute or conditional discharge?
A record suspension is only required for, and applicable to, entries on a criminal record. A criminal record exists only when a person has one or more convictions. An absolute or conditional discharge does not result in a criminal conviction, therefore there is no criminal record to suspend or pardon.
Is anyone charged with a crime eligible for an absolute or conditional discharge?
Section 730(1) of the Criminal Code says a judge can only grant a discharge to someone who is found guilty of an offence:
- that does not have a mandatory minimum punishment, or
- that is not punishable by 14 years imprisonment or imprisonment for life.
For example, if an individual was found guilty of Discharging a Firearm with Intent (section 244(2)(b)), Aggravated Assault (section 268), or Fraud Over $5000 (section 380(1)(a)), it would be illegal to impose a discharge as a sentence.
Will a discharge show up on a criminal background check?
While an absolute or conditional discharge does not lead to a criminal record, some criminal background checks may show a discharge. This is especially so if you are subject to a vulnerable sector check within the live searchable period for either discharge. Even a peace bond (where you admit no criminal or civil liability) could show up on this type of check.
An absolute discharge is live on your background check for one year after the date of sentencing. A conditional discharge is live on a background check for three years after the sentencing date. After these live searchable periods, a discharge may still be searchable on a vulnerable sector check in some cases.
Can I travel if I have a discharge?
Always check your destination country’s rules of entry about criminal findings before planning a trip there. Some countries may outright deny entry for any findings of guilt or for findings of guilt for certain offences (for example, offences that involve drugs or violence).
Generally speaking however, every border agent has the discretion to enter or refuse a person into their country, even if the country does not have an outright rule against a particular type of criminal finding.
If your situation is complicated or you require specific advice, get help from an immigration lawyer (either domestically or from the country you wish to visit) before you plead guilty to an offence or afterwards.
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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