Absolute and Conditional Discharges in Canada.

• Author: Izadi, Melody

Absolute and conditional discharges are types of sentences in Canada's criminal justice system. Want to learn more?

What is a discharge?

A discharge is a legal sentence in Canada set out in section 730(1) of Canada's Criminal Code. Both absolute and conditional discharges are a finding of guilt but not a conviction. This means that someone who receives a discharge has either pled guilty, or been found guilty after a trial, to one or more offences. Unlike all other possible sentences after a finding of guilt in our justice system, there is no criminal conviction if an offender receives an absolute or conditional discharge.

A criminal record only exists if an individual has a conviction. Therefore, an absolute or conditional discharge does not result in a criminal record.

General Principles

Section 730(1) of the Criminal Code says a judge can only grant a discharge if it is:

1. in the interests of the accused, and

2. not contrary to the public interest.

The judge weighs these competing and congruent prerequisites when deciding whether a discharge is an appropriate sentence.

These factors must also align with the general principles of sentencing, set out in section 718 of the Criminal Code.

What are the differences between an absolute and conditional discharge?

Because there is a finding of guilt but no conviction, an absolute discharge is the lowest sentence an individual can receive in our criminal justice system. There are no court orders that follow or conditions that an individual need to comply with. (The exception being any ancillary orders like a weapons prohibition or a DNA order that a judge may impose under the Criminal Code.)

A conditional discharge is like an absolute discharge except that the individual must abide by a probation period. This makes a conditional discharge more onerous than an absolute discharge. The maximum term of probation is 3 years. Often though the probation term imposed for a conditional discharge is between 12 and 24 months for a first-time offender.

A conditional discharge is exactly how it sounds: a discharge of a finding of guilt that is conditional on the individual successfully completing a probation period. Successfully completing a probation period means the individual abides by all terms on the probation order, pays all fines and surcharges, and does not accrue further findings of guilt. If an individual is not successful on probation, the court can substitute the discharge for a conviction, thereby...