Conditional discharges are a form of sentencing that allow individuals charged with a criminal offence in Ontario to avoid a permanent criminal conviction, as long as certain conditions are met. A conditional discharge is a sentencing tool available under s. 730 of the Criminal Code of Canada where an individual is still found guilty, but not convicted. A conditional discharge can considerably reduce the long-term impact of a criminal charge on criminal records, employment prospectability and ability to travel. This type of sentence is usually granted to first time or low-risk offenders.
What is a Conditional Discharge in Canada?
The Difference Between Conditional and Absolute Discharge
Absolute discharges allow an individual who has been found guilty of a criminal offence to be released without conviction or probation. This is the most lenient sentence available in Canadian criminal law, as it allows an offender to be found guilty and released with no conditions or long-lasting criminal record. Conditional discharges, however, require that certain conditions be imposed and fulfilled in order for the offender to avoid a criminal record.
Section 730 of the Criminal Code of Canada
Section 730 of the Criminal Code states:
Conditional and absolute discharge
730 (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
Period for which appearance notice, etc., continues in force
(2) Subject to Part XVI, if an accused who has not been taken into custody or who has been released from custody under any provision of that Part pleads guilty to or is found guilty of an offence but is not convicted, the appearance notice, summons, undertaking or release order issued to, given or entered into by the accused continues in force, subject to its terms, until a disposition in respect of the accused is made under subsection (1) unless, at the time the accused pleads guilty or is found guilty, the court, judge or justice orders that the accused be taken into custody pending such a disposition.
Effect of discharge
(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence except that
(a) the offender may appeal from the determination of guilt as if it were a conviction in respect of the offence;
(b) the Attorney General and, in the case of summary conviction proceedings, the informant or the informant’s agent may appeal from the decision of the court not to convict the offender of the offence as if that decision were a judgment or verdict of acquittal of the offence or a dismissal of the information against the offender; and
(c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.
Where person bound by probation order convicted of offence
(4) Where an offender who is bound by the conditions of a probation order made at a time when the offender was directed to be discharged under this section is convicted of an offence, including an offence under section 733.1, the court that made the probation order may, in addition to or in lieu of exercising its authority under subsection 732.2(5), at any time when it may take action under that subsection, revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time of discharge, and no appeal lies from a conviction under this subsection where an appeal was taken from the order directing that the offender be discharged.
Who Is Eligible for a Conditional Discharge in Ontario?
It is important to note that conditional discharges are not always available. They are utilized in cases of less serious offences (such as summary conviction offences), where there is no mandatory minimum sentence imposed by law. An accused individual can only apply for a conditional discharge if the relevant offence is not punishable by 14 years or more in prison. The discharge must also be consistent with the accused’s best interests and not contrary to societal interests.
Common Offences Eligible for Discharge (Theft, Assault, Mischief)
Conditional discharges are not available for all offences. Common offences that may result in a conditional discharge include the following:
- Minor theft (Theft under $5,000);
- Assault (typically a simple assault with no lasting injuries); and
- Mischief under $5,000.
Factors Judges Consider for Eligibility
Judges will typically consider the following factors in determining whether a conditional discharge will be granted in an individual’s case:
- The offender’s personal background;
- The circumstances of the offence; and
- The offender’s likelihood of reoffending.
A criminal defence lawyer plays a crucial role in advocating before a judge for a discharge by presenting a strong sentencing submission that addresses the above factors. The lawyers at Strategic Criminal Defence have significant experience in securing absolute and conditional discharges for their clients, and are ready to assist you with your charges to determine whether a discharge is a possible resolution for your charges.
What Conditions Are Attached to a Conditional Discharge?
The conditions attached to a discharge are typically outlined in a probation order. The probation order and any conditions outlined within it can last up to three years.
Common Probation Terms (Reporting, Counselling, Community Service)
The following are common probation terms, or conditions that must be followed when conditional discharges are granted:
- Reporting regularly to a probation officer;
- Keeping the peace and being of good behaviour;
- Committing no further offences;
- Engaging in community service;
- Attending any applicable counselling or rehabilitation programs; and
- Avoiding contact with certain individuals or places (related to the offence).
Duration of Probation (12-36 Months)
In Canada, a conditional discharge typically stays on an individual’s criminal record for three years from the date of sentencing. The individual will also be subject to probation for 1-3 years after sentencing, where they will be required to follow certain terms. If a term of an individual’s probation order is breached, the discharge can be revoked and replaced with a sentence that involves a conviction and criminal record.
If all of the conditions of a probation order are complied with for the entire probation period, the discharge will have been successfully fulfilled and the individual’s sentence will be considered to have been served. Records of the conditional discharge will be removed from an individual’s criminal record automatically after 3 years.
Will a Conditional Discharge Appear on My Criminal Record?
The 3-Year Retention Period on CPIC
A conditional discharge does not result in a criminal conviction, but will appear on a criminal record temporarily. A conditional discharge is recorded in the Canadian Police Information Centre (CPIC) database and remains in the database for three years following the completion of the sentence. This means that an individual will have conditional discharge on CPIC for the entire time of the probation order, and for three years following the date of completion of the probation order.
Vulnerable Sector Checks and Background Checks
A discharge may show up on certain kinds of background checks, particularly vulnerable sector checks which are required for working with children, seniors or other sensitive groups. The discharge may show up on these background checks as long as it remains in the CPIC database. Generally, however, for employment purposes a discharge will not appear after the three year period and no application for a record suspension or pardon is required.
Sealing the Record: Automatic vs. Pre-1992 Requests
The process for sealing a criminal record with an absolute or conditional discharge in Ontario depends on whether the relevant offences were prosecuted before or after July 24, 1992. If an individual was charged with a criminal offence prior to this date in 1992, they will be required to make a written request to the Royal Canadian Mounted Police (RCMP) to have their record sealed. After July 24, 1992, individuals with absolute or conditional discharges will have their records automatically sealed once the relevant time period has passed. The RCMP specifies that this is one year for absolute discharges, and three years for conditional discharges.
The Consequences of a Conditional Discharge
Can you travel to the United States?
Though Canada does not consider a discharge a conviction, the United States treats any admission of guilt, including guilt under a discharge, as a potential ground for inadmissibility under U.S immigration law and you may therefore be denied entry.
If the offence for which guilt was admitted is classified as an excludable offence under U.S. law, you may be denied entry. “Excludable offences” for which entry may be denied typically include crimes involving:
- Moral turpitude (theft, fraud, perjury);
- Violent crimes; and
- Drug trafficking or serious drug possession.
On the other hand, individuals with conditional discharges for non-excludable offences are usually (but not always) not denied entry to the U.S. Such non-exclusable offences include:
- Impaired driving;
- Mischief;
- Simple assault;
- Assaulting a peace officer;
- Failure to comply;
- Trespassing; and
- Causing a disturbance.
It is important to note that even in these non-excludable cases, border officers have broad discretion and can still ask questions or request documentation. Therefore, disclosure is critical and an individual wishing to cross the border into the U.S should attend the border prepared. If you are considering crossing the border and are unsure how your discharge may be viewed by a border officer, consult a lawyer prior to travelling.
Impact on Employment and Immigration
A conditional discharge can impact your employment and immigration prospects. For the first three years after sentencing, a non-expired conditional discharge will appear on employment and immigration related background checks. If you are able to complete the terms of your probation, your information will be removed from your criminal record, and any expired conditional discharges should not be discoverable on any basic employment or immigration checks.
What Happens If You Breach Probation Conditions?
A conditional discharge is dependent on an individual completing the terms of their probation. If an individual breaches one of the conditions of their probation, this can result in the revocation of their discharge. This will lead to an individual’s original conviction being present on their criminal record, and they will be subjected to any sentence that the court may impose on re-sentencing.
In addition to being convicted of the original offence, the individual may be charged with the further criminal offence of failing to comply with a probation order. This could lead to another criminal sentence for the individual in addition to the sentence imposed for their original offence.
How to Request to Seal a Discharge Record (RCMP Process)
Required Information for Sealing Requests
If a conditional discharge received before July 24, 1992 still appears on your record, you may request to have your record sealed for free. To do so, print and complete the Requesting to Seal Absolute and/or Conditional Discharge form and send it to:
Royal Canadian Mounted Police
Legislative Conformity
Box 8885
Ottawa, Ontario
K1G 3M8
Your request must contain the following information:
- Your full name (including your maiden name or any aliases);
- Your date of birth;
- A complete return mailing address;
- Your phone number (include the area code); and
- Relevant details about your offence(s), including:
- charges laid;
- sentence received; and
- date of sentence (also known as the date of disposition).
