By: ANCKR DEV July 5, 2022

WHAT IS AN ABSOLUTE DISCHARGE UNDER CANADIAN LAW

WHAT IS AN ABSOLUTE DISCHARGE?

As mentioned above, an absolute discharge is when a Judge finds a person guilty, either during a plea hearing or after a trial, and then ‘discharges’ them without imposing a criminal conviction or any punishment such as a fine or jail time. In short, its a finding of guilt with no criminal conviction.

Sometimes an absolute discharge is referred to as an unconditional discharge.

There are several reasons why a Judge may decide to grant an absolute discharge, but usually its granted because of the personal circumstances of the offender.

WHO DECIDES IF I GET AN ABSOLUTE DISCHARGE

The ultimate decision if an absolute discharge is an appropriate disposition for an accused person is left for the judge that found the person guilty. While the prosecuting Crown Attorney and the criminal defence counsel may both jointly recommend an absolute discharge the presiding judge must be satisfied that it is appropriate in the circumstances of the case.

The Judge may believe that the accused would be unduly harmed if a conviction was was placed on their criminal record for the minor crime that they were found guilty of committing. Or the Judge may be of the opinion that crime was very minor and simply did not warrant a conviction or criminal record.

However, the legal test that a court must apply in determining if an absolute or conditional discharge is appropriate is whether the discharge is in the best interests of the accused person that has been found guilty and its not contrary to the public interest.

Best Interests of the Accused

The courts have said that it is wrong just to always assume that it is always in the best interest of the accused person to be granted a discharge. That courts must provide some analysis and reasoning to the granting of a discharge and that not just simply state that it is in every person’s best interest to be granted a discharge.

The courts have held that a person receiving one of the two types of discharges should be of good character, which usually means without a criminal record and a crime free background. Further, that the effect of a criminal record would be disproportionate to the offence committed. Meaning that the accused person would be impacted to such a degree that they cannot pursue their chosen profession, it would jeopardize their employment, or that their educational options would be affected. The reasons for requesting or granting a discharge cannot be based on mere speculation.

Not Contrary to the Public Interests

A discharge must not be contrary to the public interests. The factors that determine the public interests involves a weighing of the circumstances of the offence and the offender. Public interests includes a consideration of such factors as:

the seriousness of the offence – was it trivial
the prevalence of the offence in the community
circumstances behind the offence, degree of planning, sophistication,
if related, the value of property/loss
public attitude towards offence
public confidence in administration of justice

There is no strict rule to what is meant by the public interests. This is a matter that the judge must weigh and consider in light of the offence and the offender.

DOES AN ABSOLUTE DISCHARGE AFFECT EMPLOYMENT?

It is often asked if a discharge will affect a person’s employment. Both a conditional and absolute discharge will appear on criminal record background checks until such time as they have been purged. However, even if removed from the national RCMP database, a local police service may disclose the fact that a discharge existed.

CAN A PERSON STILL TRAVEL WITH AN ABSOLUTE DISCHARGE?

A conditional discharge, absolute discharge, conviction or any admission of having committed a criminal offence should not affect travel to the United States if it is for a non-excludable offence, such as common assault, mischief, trespass. But the best practice is to confirm if the charges are consider crimes of moral turpitude before traveling to the U.S.

Conditional and Absolute Discharges Are Not Always Available

Discharges are simply not available for every charge in the criminal code. Discharges cannot be granted when there are mandatory minimum sentences or where the maximum punishment is 14 years in jail (offences such as arson, sexual assault with a weapon, perjury).

While not a strict ground of ineligibility, courts are often very reluctant to grant discharges when the offender already has been granted a discharge or has an existing criminal record, but will in exceptional circumstances.

Can Conditional and Absolute Discharges be Granted for Assaults?

Yes conditional and absolute discharges can be granted for assaults. Judges can grant discharges for violent offenses, but they usually only do in exceptional cases. A discharge can be granted for simple assaults and often are where there is no prior criminal record, but judges are reluctant to grant them in cases involving violence or when there are other assault allegations in the accused person’s background.

Conditional Discharges Are The Same, But Different

A conditional discharge is similar to an absolute discharge, but requires a condition of probation to be completed first that usually involves completing a rehabilitative or restorative program or counseling. If an offender successfully competes the conditions then the discharge is satisfied.

Absolute Discharge Available After a Plea or Trial

An absolute discharge occurs when you plead guilty or if you are found guilty after a trial. Your lawyer is entitled to ask a judge to consider granting a discharge either after a plea or trial. A judge may consider a early guilty plea as an expression of remorse and be more inclined to grant a discharge, but an early plea does not determinate if it will be granted.

Conditional Discharges Available After a Plea or Trial

An conditional discharge can be issued when you plead guilty or if found guilty after a trial. If you do plead guilty, it is possible to receive an conditional discharge. The prosecutor will not object to a judge issuing an absolute discharge in these cases, as long as there are no concerns about public safety or the court’s jurisdiction over your case..

Absolute Discharge Remains On Criminal Record For One Year

An absolute discharge will appear on your criminal record for one year after it is given. After that, it will be removed automatically. These should not appear on a background check after this time.

If you are given an absolute discharge, it means that the judge is convinced there is no need to convict you of any criminal offense because the facts of your case don’t support a conviction and/or because you have shown remorse. The judge could also decide to give an absolute discharge if he or she feels that the public interest would not be served by a conviction in your case and there are no aggravating factors present, such as a prior conviction.

Conditional Discharge Remains on Criminal Record for Three Years

A conditional discharge will appear on your criminal record for three years after it is given. After that, it will be removed automatically as long as you have complied with the conditions during that time period.

A Criminal Lawyer Will Give the Best Legal Advice

A criminal lawyer can help you decide whether to fight your charges at trial or plead guilty and seek a conditional or absolute discharge. A criminal lawyer can also help you understand the consequences of pleading guilty to a criminal charge.

A conditional discharge means that the judge will impose a probation order with conditions that must be followed, such as treatment, counseling, etc. While an absolute discharge means there are no conditions attached and your record will be clear after one year.

If you want to fight your charges, or if you have been charged with a crime and plea bargaining has failed, consider getting a criminal lawyer who can advise you on whether to fight the charges or accept a conditional or absolute discharge. A criminal lawyer will help you decide what the best course of action is for your particular case and circumstances.

Criminal Defence Lawyer for Conditional and Absolute Discharge

William Jaksa has been practicing criminal law for over 15 years in Toronto area and is very familiar with the legal requires and challenges associated with discharges in law.