One of the sentencing options available to a court, provided there is no mandatory minimum and the maximum penalty is not fourteen years or life, is to grant a discharge.  An absolute discharge carries no further requirements.  A conditional discharge will always carry a term of probation along with conditions the court feels appropriate to attach to the probation order.  S. 730(1) of the Criminal Code holds that a discharge may be granted when doing so would be in the best interest of the accused and not contrary to the public interest.  Generally discharges are only imposed for less serious criminal offences.

Many people charged with criminal offences will accept a plea deal for a conditional discharge under the assumption it is the best possible result.  This is not necessarily the case. A conditional discharge carries a number of implications with it.  In my mind too many people are pleading guilty for conditional discharges without fully understanding how it may affect them in the future.

The distinction between a discharge and other sentences (eg. suspended sentence, fine, jail) is that the accused person is not convicted of the criminal offence.  They are, however, still found guilty of the offence.

The claim that a discharge is not a criminal record is somewhat of a misnomer.  Parliament has not defined what exactly is a criminal record.  Under the Criminal Records Act a discharge, or the fact it exists, cannot be disclosed to any person without approval of the Minister after a certain period of time:  one year for an absolute discharge and three years for a conditional discharge.  I have heard anecdotal comments however that some discharges may remain on record for police after this period has expired.

The fact of a discharge will likely be disclosed if an individual approves a vulnerable sector screening (although the very fact someone was charged may show up on such a screening).

Although a discharged offender who is subsequently sentenced for another offence should be treated as a first offender, courts have held that the fact of a previous discharge may be considered in deciding whether another discharge should be granted.

The United States do not recognize Canadian conditional discharges but rather view them as convictions.  As a result anyone who has been sentenced to a conditional discharge may have difficulties crossing the border.

For the reasons above, which is NOT an exhaustive list, an accused person should put great thought into the decision to plead guilty for a conditional discharge and should always consult a lawyer to discuss their options.  While in certain cases a discharge may be the best resolution there will be numerous other cases where there may be little to no advantage to accepting a plea deal for a conditional discharge.  Although there can be no guarantee,  a conditional discharge can be imposed after trial if the facts of the case warrant the imposition of such a sentence.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.