Legal Ease, July 4

What is a conditional discharge?


After a criminal trial where there is a conviction, or following a guilty plea, the judge has the difficult job of sentencing the accused.

In Canada, the sentencing process is very discretionary, and judges, in most cases, can legally impose sentences ranging from (in effect) telling the accused they are to suffer no penalty at all to lengthy terms in prison.

Of course, the sentence imposed is done so after careful consideration by the judge—it is never a matter of mere whim.

That said, especially for a minor crime and a first offender, the judge has to consider whether to spare the accused a criminal record. Having a criminal record makes travel more difficult and can make getting (and keeping) a job a real challenge.

In most minor cases the judge can grant a discharge—which is a form of sentence that does not impose a criminal record.

Someone with a first offence of, say, theft who is young and otherwise of good character is well suited for a discharge. By contrast, someone with a lengthy record who has committed a nasty assault is unlikely to be granted a discharge.

There are two types of discharge—absolute and conditional.

In theory, an absolute discharge is available, which means the accused is found, or pleads, guilty but no punishment is imposed and no criminal record created. Such a sentence is extremely rare—I cannot remember when I saw it last.

Conditional discharges are more common. They are seen every day in criminal court.

A conditional discharge may be imposed when a judge finds it would be in the best interest of the accused and not contrary to the public interest.

It is a form of sentence where the accused is required to behave in a certain way—and perhaps do certain things (say, community service)—over a period of time. If the accused successfully fulfills the terms of the sentence, then they are discharged, which means they do not have a criminal record.

It should be clear that if you get a conditional discharge, you must carefully follow the terms required of you. Failing to fulfil your conditions will mean you do not get the discharge and indeed you may be sentenced for breaching your terms.

What’s more, if you get a discharge once, you are very unlikely to get another discharge—it’s a gift, but not one that will be repeated.

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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