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Criminal & DUI Lawyers, including:
Three Former Crown Prosecutors

What is a Conditional Discharge?

I want to talk to you today about a type of sentence under Canadian criminal law. This is under section 730 of the Criminal Code and it’s called a conditional discharge.  Now, what is a conditional discharge? Well if a person is found guilty or pleads guilty, one of the sentencing options that applies to many more minor criminal offences, whether the Judge can either give them a) an absolute discharge or b) a conditional discharge.  If the Judge finds that it’s in the person’s best interests and not contrary to the public interest they can discharge them on conditions. What that means is you’ve been found guilty but a conviction is not registered. You don’t have a criminal record. In theory at least you don’t have a criminal record.

So, the Judge will impose probation conditions.  For example, and you know it can be done for example for a year conditional discharge with probation conditions for a year.  To keep the peace and be of good behaviour, not contact the alleged victim, these types of conditions. And as long as you behave yourself during that year then you don’t have a criminal record.  There’s no problem there in theory at least and I want to talk a little bit about this. Now this is a very good sentencing option for many situations when the Crown offers a conditional discharge.

For example on some domestic assault charges where there is no injuries for example.  The Crown sometimes will be able to offer you that on extensive submissions with your lawyer.  Should you enter into that? Well, that’s a loaded question. I mean if you maintain you’re innocent you might not.  You might want to have a trial and win. On the other hand, if there’s risks of losing which are significant and you acknowledge that you did the crime you should potentially at least in conjunction with talking to your lawyer consider at least entering into a conditional discharge if the Crown will offer it.

Now, one of the problems that I have found and read about online and seen with clients’ cases in the past is in our province there’s been really strange disclosure going on by police forces on criminal record checks, on vulnerable sector checks, on what are called police checks, and in some cases they were disclosing too much information to employers.  This was very extensively covered in the Toronto Star where occasionally some counties were disclosing there was a conditional discharge when they really shouldn’t be. There was recent legislation brought in place to try and address this situation. It remains to be seen how that is going to play out. I’m concerned that some counties will still disclose this.  So that’s one risk if I might put it that way. Having said that, a conditional discharge is often a good option. You need to talk to your lawyer about it. Go through all your options. Whether you should go to trial, whether you should accept the Crown’s offer of a conditional discharge, what that means and how it might affect you in the future. On that note, the law states that on a conditional discharge that the police, the Canadian police information centre should purge that from their system in three years.  So you can certainly check to see if they’ve done but that’s very important but that’s going to be in their system for at least three years.

So these are some of the considerations for conditional discharges.  Absolute discharges is when you are discharged absolutely. There’s no conditions. So there is no probation period.  These are two considerations you should go through with your lawyer and it can apply to those offences where there is no mandatory minimum sentence.  For example if you look at sexual assault matters, many of these charges have mandatory minimums and a conditional discharge would not be available. For more minor criminal offences or at least offences with no mandatory minimums, conditional discharges are available as an option that you might want to consider.  

Thank you for joining me today.

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