Conditional Discharge vs. Absolute Discharge in Canada
What is a Discharge?
This page provides a general overview of criminal discharges in Canada. For location-specific information, please select the location nearest you from the drop-down menu or contact one of our dedicated defence lawyers.
A discharge is the best possible sentence you can receive short of a resolution, whereby your charges are diverted out of the criminal justice system.
This means that the Court has found you guilty of a criminal offence, but rather than entering a conviction against you, has chosen to show leniency and ‘discharge’ you, either conditionally or absolutely.
Conditional Discharge vs. Absolute Discharge
Absolute discharge
An absolute discharge does not require a probationary period or additional requirements such as counselling or community service. You are free to resume your normal day-to-day life without any conditions.
An absolute discharge will be visible on your criminal record for one year, following which it will be clear. However, the fact that you were convicted and discharged may still show up on enhanced criminal record checks, which some employers will conduct.
To ensure the discharge does not show up on any record checks, you will need to obtain a criminal pardon.
Absolute discharges will not inhibit your ability to travel.
Conditional discharge
When granted a conditional discharge, the court will indicate that you will be discharged after you fulfill the terms of either a one-, two-, or three-year probationary period.
This probationary period will typically involve requirements such as:
- Reporting to probation every two weeks;
- Counselling; and/or
- Community service.
Conditional discharges are visible on your criminal record for a period of three years. Moreover, depending on the offence, a conditional discharge may impact your ability to travel. For more information, please see our FAQ addressing this topic.
Who is Eligible for a Discharge?
The eligibility for both conditional and absolute discharges is limited by section 730(1) of the Criminal Code of Canada (the “Code”):
Conditional and absolute discharge
730 (1) Where an accused, other than an organization, 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).
Certain violent crimes such as murder and armed robbery are automatically ineligible.
It is important to understand that discharges are rarely granted. To receive an absolute or conditional discharge, there must be no minimum sentence specified in the Code. Furthermore, discharges typically only apply to relatively low-level offences, and require unique personal circumstances.
The list of circumstances that may be relevant is not exhaustive, but can include:
- Risk of loss of employment if convicted;
- Risk of deportation if convicted;
- An indication that an underlying mental health concern contributed to the wrongful behavior; and
- An indication that some sort of coercion or undue pressure caused the wrongful behavior.
What’s Next?
Our criminal defence lawyers are skilled at coming to non-criminal resolutions and discharges.
Even if it is not possible to reach such a resolution, our lawyers will work hard to defend you so that you are not saddled with the most severe consequences of a criminal conviction.
Contact us today so we can begin to assess your eligibility for a discharge and canvass a range of other solutions.
Discharge FAQs
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About The Author
Michael Oykhman
Managing Partner
Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.
My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centred. We look for opportunities to add value to our clients through strategic thinking and creative solutions.
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