If you are charged with a criminal offence, the criminal defence lawyers at Kostman & Pyzer, Barristers will endeavor to help you avoid a criminal record. One of the ways this can be accomplished is by obtaining a discharge under s. 730(1) of the Criminal Code. A discharge is a disposition from the Court after a finding of guilt which does not constitute a conviction and is not a criminal record.
Not every accused is eligible for a discharge. Discharges are only available to individuals; thus, an organization such as a corporation which has been charged with an offence cannot obtain a discharge. In addition, a discharge is only available in response to a particular category of offences. For the purposes of obtaining a discharge there are three categories of offences.
1. Prescribed by Law – You cannot obtain a discharge for offences for which a minimum punishment is prescribed by law. For example, under s. 85(3) of the Criminal Code, using a firearm in the commission of an offence carries a minimum sentence of one year for a first offence. An individual charged under s. 85(3) would not be eligible for a discharge. Some other examples of crimes which carry minimum sentences include: knowing possession of an unauthorized firearm (second offence), possession of a weapon obtained by crime, possession of weapons for the purpose of trafficking, sexual interference, sexual exploitation of a person under 14, inviting sexual touching of a person under 14, possession of or accessing child pornography, betting, pool-selling, book-making, placing bets on behalf of others, obtaining the sexual services of a person under 18, murder, manslaughter with a firearm, attempted murder, sexual assault with a weapon, aggravated sexual assault with use of a weapon, kidnapping, hostage taking, robbery with a firearm, extortion.
2. Offences Punishable by Fourteen Years or Life – You cannot obtain a discharge for a crime which can carry a minimum sentence of fourteen years or life. For example, pursuant to s. 745(a) of the Criminal Code first degree murder carries a mandatory sentence of life in prison. Some other examples of offences in this category include: hijacking, endangering an aircraft, several offences involving explosives, bribery of a judicial officer, perjury, fabricating evidence, incest, criminal negligence causing death, murder, manslaughter, attempted murder, accessory to murder, discharging a firearm with intent to kill, dangerous driving causing death, failing to stop at the scene of an accident knowing a person is dead, impaired operation of a motor vehicle causing death, aggravated assault, torture, sexual assault with a weapon, aggravated sexual assault, kidnapping, human trafficking, hostage taking, criminal breach of trust, robbery, extortion, break & enter with intent, some forms of fraud, willful mischief endangering life, arson, making counterfeit money, possession of counterfeit money, conspiracy to murder, commission of an offence for a criminal organization.
3. Other – All other offences may be resolved by way of discharge should the court see fit.
If you are charged with an offence for which a discharge is available certain criteria must be met in order to obtain a discharge.
1. There must be a finding of guilt either as a result of a guilty plea or a finding of guilt after trial, and the offence must be one in which a discharge is eligible.
2. The discharge is in the accused’s best interest and
3. Ordering a discharge is not contrary to the public interest.
In determining whether a discharge is in the accused’s best interest, a judge is at liberty to consider factors such as:
In considering whether ordering a discharge is not contrary to the public interest, a judge must consider whether a discharge should be entered to deter the general public from committing a similar offence. The overall objective of a discharge is to avoid ascribing a criminal record to an accused where the circumstances and overall character of the accused mitigate against such a disposition. A judge’s decision to order a discharge is thus very individualized depending on the accused person before them. Discharges are not applied routinely to particular crimes, nor are they more common for youth offenders than for mature offenders. The decision to grant a discharge is case specific.
There are two types of discharges which a judge can dispense. The first is an absolute discharge. Though an absolute discharge is a finding of guilt, no action is taken by the state following such an order. The individual is essentially free to go. Though the discharge is recorded by the Canadian Police Information Center, it is not entered on an individual’s criminal record. According to the decision in Bram absolute discharges should be used sparingly to deter the general public from committing crimes. However, the court in Bram also specified that absolute discharges should not be limited to the most minor of offences. Rather, this type of discharge is available for any offence in the category of offences which may be discharged.
The second type of discharge is a conditional discharge. Like absolute discharges, conditional discharges do not appear on your criminal record. However, following release on a conditional discharge, the accused will be required to undertake certain specified actions for a maximum period of three years. Some examples are:
Like an absolute discharge, a conditional discharge is recorded by the Canadian Police Information Center, but will not appear as a conviction on your criminal record.
The most important aspect of a discharge is that it is a finding of guilt not a criminal conviction. An individual who receives a discharge will have a criminal record within the meaning of the Criminal Records Act. The offence for which the discharge was granted will not appear as a conviction on that record however it will be temporarily noted on your criminal record as a discharge. The RCMP is obliged to remove all references to a discharge from your criminal record after 1 year for an absolute discharge or 3 years for a conditional discharge. A discharge cannot be taken into account in the future during sentencing for a subsequent conviction.
However, there are some negative consequences associated with a discharge. Though an absolute discharge may not interfere with your ability to travel to the United States, a conditional discharge may impede that ability (see Emigration (U.S.) Consequences of a Criminal Conviction). Moreover, the fact that you have received a discharge from a first offence may make it less likely that the court will grant you a discharge from any future offence. Finally, there are consequences for breaching the terms of a conditional discharge. If you are issued a conditional discharge, you are essentially on probation for the term specified in the conditions. If, during this time you fail to comply with the conditions or commit another criminal offence, you may be charged with the criminal offence of “Failure to Comply with a condition of Probation”.
If you are charged with a criminal offence, the criminal defence lawyers at Kostman & Pyzer, Barristers can assist you to obtain a discharge and keep your criminal record clean. If you have any questions about the implications of an existing discharge or are facing criminal charges, contact us at 416-658-1818.