If you are found guilty of a crime, in Canada there are a few different ways that you can avoid a prison sentence. Two of the most common alternatives to a prison sentence, for less serious offences are a Conditional Discharge and an Absolute Discharges. A “discharge” is also a finding of guilt without a conviction. Since a discharge isn’t a conviction, after a certain number of years the discharged offense will be removed from criminal record searches, without the need to apply for a pardon.
How to be Granted a Discharge – The Legal Requirements
The sentencing judge must find, that granting the discharge:
- Would be in the best interests of the accused; and
- The discharge mustnot be contrary to the public interest.
Other factors to consider are:
- Discharges are only available for crimes where the minimum punishment is less than 14 years imprisonment.
- Although discharges will not appear on most criminal record searches, they can be referred to if there is a criminal conviction in future, and it will likely impact future sentences. It is very uncommon for a repeat offender to receive multiple discharges.
You may be asking yourself, what kind of offender could get a discharge, let’s work through an example:
- The offender is an abused woman, Jane Doe, her partner, Jeff Doe physically, and emotionally abuses her and controls the family money,
- Jane’s family islow income,
- Jane secures a part time job and is accepted into a college program, against her husband’s wishes,
- Jane’s husband sabotages her efforts and forces her to quit,
- In a fit of despair, Jane smashes her husband’scar windows with a hockey stick before leaving with her children to an abused women’s shelter,
- In an effort to force her to return home, Jeff calls the police, Jane is charged with Mischief under $5000.
Jane retains a criminal defence lawyer, Jane does not deny what she did, so she pleads guilty. Her criminal lawyer can now argue to the judge that Jane should get a discharge, because;
- It would be in Jane’s best interests not to be convicted, she would be unable to move forward in her quest for independence if a criminal record stopped her from finding work.
- The public interest would be better served by allowing Jane to work towards providing for herself and her children, a criminal record would hurt her chances of doing that.
Types of Discharges
There are two types of discharges, a conditional discharge and an absolute discharge, below we will examine both types:
Often at the completion of criminal proceedings (following a trial or a guilty plea), offenders will mention that they received “probation”, however there is no stand alone sentence of probation. Probation is typically one aspect of another type of sentence. Many people given probation, in fact received a Conditional Discharge. A Conditional Discharge is given,and an accused must then complete the “conditions” of the sentence. Some of the conditions could include, probation, paying restitution, entering counselling, etc. If the “conditions” are completed, after 3 years, the charge should automatically be removed from a criminal record search.
Absolute Discharges differ from Conditional Discharges in that there are no conditions attached, and they will be wiped from criminal records searches after only 1 year. It is very uncommon for judges to award an absolute discharge and they are typically reserved for the most minor of crimes or for very sympathetic accused.
Discharges are a creative way for the justice system to impose a penalty for law breaking, while ensuring that minor offences do not permanently appear in criminal records. They also keep people out of prison who pose no further danger to society.
Remember the best way to preserve your rights if you’ve been accused of a crime is to hire a criminal defence lawyer. Legal Aid certificate assistance may beavailable to low income individuals in Ontario. If you have specific questions about your situation please contact Mehdi Au LLP, we have criminal law lawyers working in Markham, Ontario.
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