Conditional and Absolute Discharges in Canada

The short answer

A discharge means you are found guilty, but no conviction is entered against you (s. 730 of the Criminal Code). It is the lightest sentence a court can give in Canada. For many people, a discharge is the difference between having a criminal record and not having one, which can matter a great deal for work, travel and immigration. Because a discharge is never automatic, the way it is requested and supported at sentencing can decide whether you receive one.

What is an absolute discharge?

An absolute discharge takes effect right away, and it comes with no conditions. You are found guilty, but you are not convicted, and you leave court without probation or any other order connected to that discharge. It is usually granted for minor offences where the judge is satisfied that no further supervision is needed.

What is a conditional discharge?

A conditional discharge comes with probation conditions, which can last up to 3 years. If you complete the probation without problems, the discharge becomes final and there is no conviction.

If you break the conditions, however, the court can revoke the discharge, convict you of the original offence and sentence you again. A breach of probation is also a separate criminal offence (s. 733.1), so the consequences of a breach can be serious.

When a discharge is available

A judge can grant a discharge only when all four of the following conditions are met:

• No minimum: The offence has no minimum punishment.
• Maximum under 14 years: The maximum sentence is less than 14 years.
• Your best interests: A discharge is in your best interests.
• Public interest: A discharge is not contrary to the public interest.

For example, a discharge is often possible for a first-time shoplifting, common assault or mischief charge. It is not available for impaired driving, which has a minimum fine, or for aggravated assault, which has a 14-year maximum. If a discharge is not available, a conditional sentence served in the community may be the next option to consider, although it is still a conviction.

The two-part test

The first part of the test asks whether a discharge is in your best interests. This usually means showing that you are of good character, that you do not need a conviction to deter you, and that a conviction would cause you real harm. The second part asks whether a discharge would be contrary to the public interest. Here, the judge considers how serious the offence was, whether it is common in the community, and whether a conviction is needed to send a message to others.

How long a discharge stays on your record

Under s. 6.1 of the Criminal Records Act, an absolute discharge is removed from the RCMP's national system after 1 year, and a conditional discharge is removed after 3 years. The time is counted from the date of the discharge. You do not need to apply for a record suspension for a discharge.

See discharges and your criminal record.

How to ask for a discharge

A discharge is argued for at the sentencing hearing, so preparation should begin well before that date. It helps to show the court:

• How a conviction would affect your work, schooling, travel or immigration status.
• The steps you have already taken, such as counselling, treatment or repayment to the victim.
• Your good character, through letters from employers, teachers and community members.
• That the offence was out of character and is unlikely to happen again.

What happens at the sentencing hearing

1. The Crown's position: The Crown describes the offence and states the sentence it is asking for.
2. The defence position: Your lawyer presents your background and supporting documents, and asks for a discharge.
3. Your chance to speak: You may address the court before the sentence is imposed.
4. The decision: The judge decides whether a discharge is appropriate and, for a conditional discharge, sets the probation terms.

Discharge vs peace bond

A peace bond avoids a finding of guilt entirely, while a discharge does not. When the Crown offers to withdraw a charge in exchange for a peace bond, that is usually the better outcome. See peace bond vs conditional discharge.

Discharges and immigration

A discharge is not a conviction under Canadian immigration law, so it does not, on its own, make a permanent resident inadmissible for serious criminality under s. 36 of the Immigration and Refugee Protection Act. However, other countries, including the United States, may treat a finding of guilt differently. If you are not a Canadian citizen or you travel often, get advice before you enter a plea.

What to do now

• Gather letters of support from employers, teachers or community members.
• Start any counselling, treatment or program that relates to the offence.
• Collect documents showing how a conviction would affect your job, studies or status.
• Speak to a lawyer before you decide how to plead.

Offences where discharges are common

Discharges are often granted for first-time, lower-level offences where there was little harm and the person has taken responsibility. Common examples include theft under $5,000, mischief, common assault outside a domestic setting and simple drug possession. Each case still depends on its facts, and a judge must be satisfied that both parts of the test are met. In domestic cases, the Crown often opposes a discharge, so careful preparation is especially important.

Discharges and travel

A discharge is not a conviction under Canadian law, but it still follows a finding of guilt. Officers at the U.S. border make their own decisions and may treat a discharge differently from a Canadian court. If you travel often for work or family, get advice before you enter a plea and before you travel.

How we can help

We can build the case for a discharge at sentencing, with the documents that show why it is in your best interests. Call (647) 223-1980 for a free consultation. We accept Legal Aid Ontario certificates.

Frequently asked questions