What is an Absolute Discharge?

The unique circumstances which warrant an absolute discharge are carefully considered by the courts, balancing the responsibility of maintaining order, ensuring public safety, and determining an appropriate punishment for those who have been convicted of an offence. However, not all criminal offences warrant severe penalties or long-lasting consequences, particularly for first-time offenders or those involved in minor infractions. In such circumstances, an absolute discharge may offer an appropriate alternative, allowing individuals the opportunity to avoid the lasting effects of a criminal record.

Understanding Absolute Discharge

An absolute discharge is a legal mechanism through which an individual found guilty of a criminal offence is neither convicted nor subjected to any further penalties, conditions, or sanctions. In short, the individual is released without any additional consequences, and their criminal record remains clean/ with an absence of the incident before the courts. As a generalization, absolute discharges are typically reserved for offences which the courts view as minor, such as property crimes or crimes against persons without serious injuries sustained by an affected party. First-time offenders, or situations where imposing a punishment would be unduly harsh or counterproductive, and ultimately not required to meet the proper administration of justice.

It is important to note that absolute discharge is not an acquittal, as the individual has been found guilty of the offence. However, the absence of a conviction and associated penalties offers the individual a chance to learn from their mistake and reintegrate into society without the stigma of a criminal record.

What is the difference between an absolute discharge and a conditional discharge?

There are two types of discharges:

An absolute discharge means your record won’t show a conviction. You will not be on probation, or bound to any court order in order to achieve a clean record.

A conditional discharge means your record won’t show a conviction if you meet conditions the judge sets. The conditions come in a probation order that can last from one to three years. The conditions can (or may) include that you:

“keep the peace and be of good behaviour”

“remain in the province”

“notify a probation officer of any changes in your job or address”

“not contact certain people or go to certain places”

“not drink alcohol or use (non-prescription) drugs”

“You may have to perform community service, give money back to a victim, or report to a probation officer periodically.”

If you abide by the conditions which the court has imposed until the end of the probation period, your record won’t show a conviction, therefore demonstrating the (conditional) discharge, so long as the conditions are satisfied. But if you don’t follow the conditions of your probation, your conditional discharge can be taken back by the court and replaced with a conviction.

Each type of the above-described discharges are usually available only for more minor offences and if you have no history of similar offences. The accused, and their lawyer, must put forth a persuasive argument before the courts that a discharge is appropriate. The judge is likely to consider an accused’s character, and whether a discharge is against public policy.

If an accused person receives an absolute discharge, the record of the discharge will be kept on file for one (1) year.

If an accused person receives a conditional discharge, the record of the discharge will be kept on file for three (3) years after the probation period is completed.

After the one- or three-year period, the RCMP must delete any record of your discharge from their records. No record of the discharge can be disclosed to anyone except in specific circumstances, such as if your fingerprints were found at the scene of a crime.

Who decides if you receive an absolute discharge?

A judge decides if you receive an absolute. An absolute discharges are a finding of guilt by a Judge, but no subsequent criminal conviction or criminal record. There is no punishment imposed by the court for absolute discharges.

Benefits of Absolute Discharge

One of the primary benefits of absolute discharge is its potential to promote rehabilitation and reintegration. By avoiding a criminal record, an accused person can access both educational and employment opportunities that might otherwise be unavailable to them. This reduces the inherent barriers, and can ultimately reduce the risk of recidivism and facilitate a more seamless and successful reintegration into society.

In some cases, imposing a criminal conviction and associated penalties may be disproportionate to the nature of the offence or the individual’s circumstances, and as described above, hinder a person’s opportunities post-conviction. An absolute discharge allows for a more nuanced and fair response, ensuring that punishment is proportional to the crime and the accused person’s background. It is imperative to consider the unique circumstances of the accused person’s background, all of which may be contributing factors to the court’s ruling of an absolute discharge. It is important to discuss this with a lawyer.

The prospect of an absolute discharge is subsequent to a conviction. Ultimately, this may result in an increase of persons pleading guilty to lesser/less serious offences, and streamlining of the judicial process. An absolute discharge in appropriate cases can help reduce the burden on the criminal justice system by conserving valuable resources. With fewer individuals facing incarceration or probation, the system can focus on more serious offences and offenders.

Factors that impact the sentencing judge’s decision to grant an absolute discharge

The sentencing judge’s decision on whether or not to grant a discharge will be based on several important factors, such as the nature or the type of crime, the circumstances in which the crime was committed, the unique personal circumstances of the person seeking the absolute discharge, and the interests of the public/ public interest.

Who is eligible for an absolute discharge?

It should be noted that relatively few people who have been convicted of a criminal offence in Canada are granted an absolute discharge. Pleading guilty or being found guilty of some specific, often serious, criminal offences will automatically render you ineligible from any form of discharge. These include violent criminal offences such as murder or manslaughter, some drug trafficking or related offences, and some sexual offences.Also, there are some criminal offences which carry a mandatory minimum prison sentence, which also automatically precludes the possibility of any type of discharge. However, even for less serious criminal offences, an absolute discharge is quite a rare sentence. An accused person will ultimately have admitted to, or found guilty of, committing a criminal offence deemed of relatively lesser seriousness, and will immediately be free or consequence, without any conditions, no criminal record, and with nothing in the public domain after a year to say that you were ever charged.

Examples of when the courts may rule favourably for an absolute discharge may include that:

• The offence was very minor
• There were extenuating circumstances
• The offence caused minimal damage or loss toward other people or to property
• You have voluntarily taken steps towards rehabilitation, such as proactively attending counsellor or rehabilitative services
• You have made a contribution in some form to the general community (e.g. community service or charity work)

In addition to the above-described circumstances, you will usually only be considered for an absolute discharge if you do not have a prior criminal record/past convictions of a criminal offences, have not been charged with a similar criminal offence prior, and have not received an absolute discharge prior. The courts also balance the aspect of public safety and will examine whether the accused person poses a risk to others if the conviction does not remain on their criminal record.

In short, unless it is in the public’s best interests, as well as yours, you will not be considered for any type of discharge. When deciding this, the judge will weigh both the pros and cons of your conviction being a matter of public record through the lens of the public interest.

If the crime is particularly common in the community, for instance, keeping a conviction on record may be seen as a deterrent to others. A discharge would therefore not be in the public interest.

Other examples where discharge would not be considered are where fraud, deceit, or taking advantage of other people has occurred. It is part of the responsibility of the courts, in considering the public interest, to protect employers and other organizations within the community from future criminal activity or victimization, by making your crime a matter of public record.

Can a person still travel with an absolute discharge?

Yes, as a generalization, due to the fact the person’s criminal record will not show a conviction (the RCMP are required to remove this), an absolute discharge should not impede a person’s constitutionally protected right to travel.

How to apply for an absolute discharge 

An absolute discharge is rarely granted, and often difficult to obtain from a judge. Following a guilty plea or conviction of an offence that is deemed eligible for an absolute discharge at trial, the accused’s (defence) lawyer must demonstrate how an absolute discharge is in the best interests of both the accused person, as well as the community (public interest). This must be presented before the courts for consideration. This could be by way of explaining there would be no benefit to alternatives, such as the cost of imprisonment, for a minor offence where concerns of public safety have not been raised, or there is no concern of threat to a victim (or re- victimization).

In such circumstances, it could be argued that an absolute discharge should be considered as a conviction and a criminal record is not making the public any safer, and the opportunity to reintegration by way of removing the barrier of a criminal record for employment opportunities etc would benefit both the accused and community.

Limitations of Absolute Discharge

The court’s decision of when to grant an absolute discharge may appear to be inconsistent, as the decision to grant one is largely at the discretion of the presiding judge. Therefore, they are provided on a case-by-case basis, in different jurisdictions, with varying circumstances. This can lead to varying outcomes for similar cases and could appear to not always be the principle of equal treatment under the law. It is important to explain all of the unique circumstances surrounding your case to your lawyer.

As described above, absolute discharges are generally reserved for minor offences or exceptional circumstances, limiting their applicability for use. If you are unsure as to whether your circumstances would apply for an absolute discharge, it is best to explicitly discuss this topic with your lawyer, or seek legal advice on this topic.

Conclusion

An absolute discharge is a valuable tool that can provide often immeasurable relief to a person convicted of a criminal offence. It provides deserving individuals with the opportunity to avoid a criminal record and the associated long-term consequences. By offering a second chance to those involved in minor offences or first-time offenders, absolute discharge can promote rehabilitation, reintegration, and a more proportional response to crime.

However, the use of absolute discharge is not without its limitations. Inconsistency, limited applicability, and public perception concerns depending on the public interest within the jurisdiction in which the offence occurs can pose challenges in certain cases. To ensure that absolute discharge remains an effective and fair component of the criminal justice system, it is essential that you discuss the unique circumstances of your case with your lawyer, to ensure they are aware of how to best advocate, and that the judges exercise discretion judiciously and consider those unique circumstances of your case.