Absolute and conditional discharges in Canadian criminal law.

Purposes of Criminal Sentencing

The principles of criminal sentencing are set out in Section 718 of the Criminal Code. In Canada, the fundamental purpose of sentencing is to facilitate respect for the law and to promote a just, peaceful and safe society. Sentencing pursues these six objectives:

Denunciation--to denounce the offender's criminal actions;

Deterrence--a sentence dissuades the convict and others from repeating the offence;

Separation--this punishes the offender through deprivation of contact with friends, family and others, while protecting society from the offender at the same time;

Rehabilitation--offenders are offered programs and therapy that may help them to change their lives and turn away from criminal behaviours, an objective which is thought to be most effective with young offenders;

Reparation--as restorative justice: offenders pay fines, make restitution or work in community service programs; and

Responsibility--offenders must sincerely consider the harm done by their behaviour.

Possible Outcomes to Guilt

A person convicted of a crime in Canada will receive one of the following dispositions:

* discharge--either absolute or conditional;

* alternative measures;

* fine;

* probation;

* suspended sentence;

* conditional sentence; or

In this article we explain the criminal sentencing law of absolute and conditional discharges.

Discharges

After an accused person has been found guilty by a plea or conviction after trial, a discharge may be granted by the state. This nullifies any criminal record that the guilty person otherwise would have had. Section 730 (1) of the Criminal Code states:

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). An individual may be discharged if it is in the best interest of the individual and if it is not against the public interest. The effect of a discharge is that the accused does not receive a criminal conviction or a criminal record. This makes a discharge very advantageous for first-time offenders and those guilty of minor offences.

The Ontario Court of Appeal sought to interpret and apply what "best interest of the accused" means in Regina v...