What You Should Know About a Conditional Discharge

A discharge is the most lenient sentence a judge can give an adult offender. What is particularly attractive about it is that it is not considered a criminal record. 

A “Criminal record” is not defined anywhere and lots of situations leave records. For example, your name appearing on the docket is a record of sorts but that’s not a formal criminal record. 

It’s most commonly referring to “convictions” – ie: security clearances often ask “have you ever been convicted of an offence for which you have not been pardoned”; a “pro” to a discharge is that you can answer no. 

Benefits of a Conditional Discharge

The main pros are the fact that it’s the most lenient outcome and that it is not considered a criminal conviction. 

The main cons are that it is still a formal admission of guilt. For example, a person who gets a conditional discharge for assault can still be sued by the victim and the plea of guilty that led to it is considered an admission of the underlying facts. 

Types of Discharges

Discharges come in two varieties: conditional and absolute; in French, you often hear about “conditional” and “unconditional” discharges (discharges are called “absolutions” in French). 

A conditional discharge means you will be on probation for a period of time (typically 12-24 months, although it can theoretically be lower or up to 3 years). 

Probation terms include staying out of trouble and can also include reporting to a probation officer to make sure you’re being productive.  It can include conditions for counselling, community service, staying away from people and places, or abstaining from doing certain activities. 

What persuades a judge to grant a conditional discharge?

The conversation for a discharge starts by pitching it to the crown prosecutor. If they agree you should get it then that makes the process much easier. Often they don’t agree and they’ll want a fine (a criminal record and a monetary penalty) or a “suspended sentence” (a conditional discharge which results in a criminal record). If the crown is not persuaded then there are a few ways we can persuade a judge. 

In all cases, to convince a judge to grant a discharge the judge needs to determine that:

1. It is in your best interests and 
2. That it is not contrary to the public interest. 

In Ontario and through most of Canada, most judges find #1 is automatic — that it’s always in an offender’s interest. 

In Quebec however, they have a tradition of requiring you to demonstrate to some degree that a conviction would impact your life in some way beyond the stigma or principle of it (ie showing that you have a job or other future plans that could be affected by a criminal record). 

Beyond that first hurdle, the real question is whether or not a discharge is contrary to the public interest. The criminal code contains a number of principles and factors to consider when crafting a proper sentence. 

Deferring you from doing it again and deterring others; sending a message to the community and denouncing your conduct. The question is whether the discharge (and lack of a formal record) is too lenient for the conduct.  

How significant is a reference letter in a judge’s decision-making process? 

Reference letters assist a judge in determining your ordinary character, which allows a judge to consider giving the accused a break. There is no magic formula as to from whom or what the letter should say. We just want to convince the judge that the appropriate result in a case is that a discharge is not contrary to the public interest. 

Any judge who becomes aware you are intending to plead guilty (and seek a discharge) would generally not be involved in deciding your guilt or innocence later on in the event you changed your mind. 

Other Factors that Influence a Judge’s Decision 

One last factor to consider; a judge – when weighing the pros and cons of granting someone a discharge – considers among factors the remorse of the accused. A guilty plea entered at an early opportunity signals remorse and saves the taxpayer’s time and money of a trial. 

Accordingly, an early plea more often results in a discharge – all other things equal – than if it is sought later on or after trial. In most cases, there is a window of a few months (say 4-5 months) before a plea is no longer considered early.

Contact David Anber’s Law Office Today 

If you or someone you know are looking to remain criminal record-free and need legal support, David Anber is an experienced Ottawa-based defence lawyer who can help.

Having successfully secured conditional discharges for clients facing a potential conviction, he offers legal support that could provide much-needed clarity surrounding an individual’s charges as well as their eligibility for a discharge.

Contact David Anber by calling 613­­-755­-4008 or booking a consultation online.