A discharge is a finding of guilt that does not result in a criminal conviction. If you are eligible, it is one of the most important outcomes a criminal defence lawyer can pursue on your behalf.
If you are charged with a criminal offence, one of the primary goals is often to avoid a criminal record. One way to accomplish this is by obtaining a discharge under Section 730(1) of the Criminal Code.
A discharge is a disposition from the court after a finding of guilt that does not constitute a conviction. It is not a criminal record in the traditional sense. The finding of guilt is recorded, but it does not appear as a conviction and is eventually removed from your record entirely.
Who Is Eligible for a Discharge
Not everyone who pleads guilty or is found guilty can receive a discharge. Eligibility depends on who you are and what offence you are facing.
Discharges are only available to individuals. An organization such as a corporation charged with an offence cannot obtain a discharge.
The offence itself must also fall into the right category. For discharge purposes, offences break down into three groups.
Offences with a minimum punishment prescribed by law
If the Criminal Code sets a mandatory minimum sentence for an offence, a discharge is not available. For example, using a firearm in the commission of an offence under Section 85(3) carries a minimum sentence of one year for a first offence. Someone charged under that section cannot receive a discharge. Other examples include knowing possession of an unauthorized firearm on a second offence, possession of a weapon obtained by crime, sexual interference, sexual exploitation of a person under 14, possession of or accessing child pornography, and obtaining the sexual services of a person under 18.
Offences punishable by fourteen years or life
If the maximum sentence for an offence is fourteen years or life imprisonment, a discharge is not available. First degree murder under Section 745(a) carries a mandatory life sentence. Other offences in this category include hijacking, endangering an aircraft, perjury, fabricating evidence, incest, criminal negligence causing death, manslaughter, attempted murder, dangerous driving causing death, impaired operation causing death, aggravated assault, torture, aggravated sexual assault, kidnapping, human trafficking, hostage taking, robbery, extortion, break and enter with intent, certain forms of fraud, arson, and commission of an offence for a criminal organization.
All other offences
If the offence does not fall into either of the above categories, a discharge may be available if the court sees fit to grant one.
What the Court Considers When Granting a Discharge
Even if you are eligible, a discharge is not automatic. The court must be satisfied that two conditions are met.
First, the discharge must be in the accused’s best interest. Second, ordering a discharge must not be contrary to the public interest.
When assessing the accused’s best interest, a judge can consider factors like whether the accused has received a discharge in the past, the accused’s character and criminal history, whether a conviction is necessary to deter the accused from reoffending, whether a conviction is necessary for rehabilitation, and whether entering a conviction would have significant consequences for the accused such as social stigma or difficulty finding employment.
When assessing the public interest, the judge considers whether a discharge would undermine the deterrent effect of the law. The overall objective is to avoid giving someone a criminal record when their circumstances and character suggest that outcome is not warranted.
Discharges are not applied routinely to particular crimes. They are not more common for young offenders than for adults. The decision is case-specific and depends entirely on the individual before the court.
Absolute Discharge
An absolute discharge is the more favourable of the two types. It is a finding of guilt, but no further action is taken by the state. The individual is free to go.
The discharge is recorded by the Canadian Police Information Centre, but it does not appear on your criminal record as a conviction. According to the decision in Bram, absolute discharges should be used sparingly to maintain the deterrent effect of the law. But the court in Bram also made clear that absolute discharges are not limited to the most minor offences. They are available for any offence in the category of offences eligible for discharge.
The RCMP is required to remove all references to an absolute discharge from your record after one year.
Conditional Discharge
A conditional discharge also avoids a criminal conviction, but it comes with conditions the accused must follow for a specified period of up to three years.
Common conditions include a requirement to undergo counselling, enroll in a substance abuse program, or complete a certain number of hours of community service. The accused is essentially on probation for the duration of the conditions.
Like an absolute discharge, a conditional discharge is recorded by the Canadian Police Information Centre but does not appear as a conviction. The RCMP is required to remove all references to a conditional discharge from your record after three years.
What Happens If You Breach a Conditional Discharge
If you fail to comply with the conditions of a conditional discharge, or if you commit another criminal offence while the conditions are in effect, you can be charged with failure to comply with a condition of probation. That is a separate criminal offence.
A breach does not just risk the new charge. It can also affect how the court views any future applications for leniency.
Other Consequences to Be Aware Of
A discharge is not a conviction, but it is still a finding of guilt. There are some practical consequences.
Travel to the United States can be affected. An absolute discharge may not interfere with your ability to cross the border, but a conditional discharge may create issues. US Customs and Border Protection has access to Canadian criminal records and can deny entry based on a finding of guilt even without a conviction.
Receiving a discharge for a first offence may also make it harder to obtain a discharge for any future offence. Courts consider prior discharges when deciding whether another one is appropriate.
A discharge cannot be used against you during sentencing for a subsequent conviction. But it does remain visible in the system until the RCMP removes it after the required period.
If You Are Facing Criminal Charges
A discharge is one of the best outcomes available when a finding of guilt is unavoidable. It keeps your record clean, avoids the long-term consequences of a conviction, and in many cases allows you to move forward without the stigma of a criminal record.
Whether a discharge is realistic depends on the offence, your background, and how the case is presented to the court. Contact Pyzer Criminal Lawyers for a free consultation to discuss your options.
This article provides general legal information only and should not be construed as legal advice. Laws and their interpretation may change, and the application of law to specific circumstances requires professional legal assessment. If you have questions about a legal matter, please contact us for a free consultation.
