Conditional Discharge vs. Absolute Discharge: Understanding These Sentences

One mistake, one indiscretion, one failure in judgment. These actions should not define the rest of your life. 

Canadians may be eligible for a discharge if they are found guilty of a crime. This sentence would allow people to minimize the effects of a criminal act and wipe the slate clean instead of facing a lifetime of hardships, shame, and complicated explanations. 

The criminal defence lawyers at Nychuk & Company fight for clients’ rights in the full spectrum of cases. We are proud to have represented the people of Regina and South Saskatchewan for more than three decades, and we provide practical legal guidance throughout harrowing times in their lives. Our legal team looks to minimize any fallout from a criminal charge, starting with obtaining absolute and conditional discharges whenever possible. Contact us to request a consultation, in person or remotely. We are available 24/7 to help.

What is a Discharge in Canadian Criminal Law?

A discharge is a sentencing option for some people who have pleaded guilty or who have been found guilty of a minor offence and are unlikely to repeat their actions. In Section 730(3) of the Canadian Criminal Code, discharge is described as when an “offender [is] discharged of an offence, the offender shall be deemed not to have been convicted of the offence” with conditions. 

A discharge offers a second chance to those who have made grievous mistakes in their life, and who are not likely to repeat those mistakes. In other words, not all people found guilty of a crime are afforded the possibility of a discharge. Still, those found guilty of very minor summary charges may have that opportunity if the following criteria are met:

• The defendant is a person, not an organization
• The defendant is found guilty
• The offence has no minimum punishment
• The offence’s maximum sentence is less than 14 years
• A discharge is in the best interest of the defendant
• A discharge would not go against the best interests of the public

If all of those criteria are met, the defendant may be eligible for an absolute discharge or a conditional discharge.

Absolute Discharge: Definition and Effects

Absolute discharge is one where the defendant is found guilty of a minor offence and is released from custody with no lasting criminal record. 

That said, for one year after sentencing, the guilty finding will show up initially in background checks and through the Canadian Police Information Centre (CPIC). After one year, the guilty verdict is automatically removed from the CPIC and the person is considered not to have a criminal record. That means there is no lasting impact on the ability to:

• Travel
• Immigration to Canada
• Emigrate to another country
• Get a job
• Rent or mortgage a home
• Get reasonable insurance rates

An absolute discharge is the best-case scenario after being found guilty of a crime. This does not necessarily mean your actions are without consequence, as the judge may sentence you to community service, counselling, or treatment, depending on the nature of the offence. 

Conditional Discharge: Definition and Effects

In a conditional discharge, a person found guilty of a minor crime can be released. Still, there is a probationary period of up to three years in which restrictions are placed on the person’s behaviour and movements to show that the criminal activity will not be repeated. The probation period usually spans 1-2 years, during which time a probation officer will check in periodically to ensure the court’s orders are followed. A person with a conditional discharge must: 

• Appear in court when ordered.
• Notify the probation officer and court of any change in name or contact information
• Notify the probation officer and court of a change in employment

Depending on the crime, judge, and defendant, the requirements of discharge may include:

• Not associating with certain people involved in the crime, including victims
• Restitution
• Sobriety and rehab
• Community service

The extent of the stipulations for a conditional discharge may not include those from this list. 

If you complete the probationary period of your sentence without issue, your criminal charge will be automatically purged from your record three years from the date of sentencing. 

If you are found to breach those terms, the court may revoke your discharge and convict you of the original crime. You will likely face a new charge for violating probation.

Conditional vs. Absolute Discharge: Key Differences

While both types of discharge will eventually disappear from your criminal record if all conditions are met, there is one key difference between absolute discharge vs. conditional discharge:

• Absolute discharge: You go home and go about your life as an upstanding citizen.
• Conditional discharge: you go home but must adhere to certain probationary restrictions for a period after sentencing.

Both absolute and conditional discharges are findings of guilt but not convictions, so they do not result in a permanent criminal record. But they may come up in a background search of the Criminal Records Repository, found in the Canadian Police Information Centre (CPIC) database. It disappears one year after an absolute discharge and up to three years after the conditional discharge. 

Absolute and conditional discharges will continue to appear on vulnerable sector checks, which refer to deep background checks performed on a person applying to work with vulnerable populations, such as children and the elderly. This search can dig up fingerprints and photographs taken during your arrest and sentencing. 

Only after your sentence is complete will you be able to request that your arrest records be expunged.

When are Discharges Granted?

You may be wondering why you haven’t heard of discharges before. They were added to the Canadian Criminal Code in 1972. These sentences focus on the well-being and best interests of a person who has made a mistake and deserves a second chance at an everyday life. 

Unfortunately, public data does not disclose the number of absolute and conditional discharge sentences that are ordered. Public Safety Canada shows the number of cases in Provincial and some Superior Courts over the last 10 years in Table A11, where discharges fall under the category of cases with guilty findings. According to the Public Prosecution Service of Canada, fewer than 1% of guilty convictions garner a sentence of absolute discharge or conditional discharge in federal cases across the country. 

Such minor criminal offences can include: 

• Drug crimes
• Simple assault with no serious injury and no weapon
• Theft
• Property crimes
• Fraud under $5000
• Dangerous driving

Again, the judge has to be convinced that this infraction is a one-off, and that a discharge is in the best interest of the person found guilty and not against the best interest of the public. 

This practice is still underutilized in South Saskatchewan. At Nychuk & Company, our criminal defence lawyers work for the best possible outcome for our clients, from the start of the criminal process through sentencing. We try to improve your chance of an absolute or conditional discharge by showing that you:

• Have no record
• Have been found guilty of a minor crime
• Contribute to your community
• Are gainfully employed
• Have family and friends willing to vouch for you
• Have started counselling, treatment, restitution, or some other way to account for your actions
• Are not violent
• Providing for your family is crucial, and losing that support would devastate them.
• Your job or responsibilities require international travel (if applicable)

A full discharge or probational discharge is most often the best-case scenario. From the start, our lawyers look to guide each case to the optimal outcome for clients. 

Probation Conditions with a Conditional Discharge

As mentioned, a conditional discharge requires compliance with basic probationary guidelines: 

• Appear in court when ordered
• Notify the probation officer and court of any change in name or contact information.
• Notify the probation officer and court of a change in employment.

The conditional discharge is granted only when the risk of the defendant repeating the criminal behaviour is low and release from court custody is in the best interest of the defendant. Therefore, conditions of a partial discharge may be tailored to the guilty person and the circumstances of the offence. Depending on the crime, judge, and defendant, the restrictions of discharge may include:

• Staying away from specific places or areas
• Not communicating in any way with certain people
• Reporting regularly to a probation officer 
• Staying within the jurisdiction of the court 
• Abstaining from drugs and alcohol
• Providing a DNA sample
• Paying restitution to a victim
• Not owning or possessing a firearm or weapon
• Fulfilling any obligations of support or care for dependents 
• Completing community service (up to 240 hours)
• Participating in a designated treatment program 

This is not an exclusive list. Your conditional discharge may include some of these terms or even some that are not listed, depending on the circumstances of the crime.  

What if You Breach the Conditions?

The conditions of your discharge are critical.  If you fail to comply with all stipulations, you will have to return to court. The Crown will likely reinstate the original charge and remove the possibility of discharging the guilty verdict or plea from your records. Violating probation is a crime, and you may see a charge added to your records as well. For these and other reasons, it is essential to honour the conditions of your discharge. 

Impact of a Discharge on Your Criminal Record

In the first year after an absolute discharge and 3 years after a conditional discharge, your finding of guilt appears on your criminal record. While it is not a conviction, some organizations and nations may not recognize the distinction.

Moreover, you may find it difficult to:

• Get a new job
• Find a new place to live in Canada
• Find a new place to live in another country
• Apply for school and higher education
• Travel outside of Canada

Each of these new beginnings may require a background check, and you could be flagged as a criminal who cannot be trusted. 

When travelling, some countries may not recognize that a discharge is not a conviction. Their immigration searches may simply show that a criminal record exists and respond accordingly, and may deny entry.

If an employer asks you if you have ever been convicted of a crime, you can truthfully say no. A discharge is not a conviction. If, however, the employer asks if you have been arrested, the honest answer is yes. 

Moreover, even after a discharge is removed, the record of the original arrest is still on file at the local police station where the defendant was apprehended. This record includes the police reports as well as fingerprints and photographs. You may be able to file a separate request to remove that information from the local station, but police are within their rights to ignore such a request. Nychuk & Company may be able to assist you in thoroughly clearing your criminal record so that records of your original arrest are removed from the local police station. 

Life After a Discharge

Even if you can obtain an absolute discharge, it is a good idea to avoid the circumstances that got you into trouble in the first place. This may mean you change some habits and avoid certain people, places and activities that led you down the wrong path. 

Before expungement, you may not notice any differences in your life. But when you work to make a significant life change, it may not be as easy as it is for others. Once your record is clean, you may find that your passage in all these areas is obstacle-free. That is why seeking skilled legal guidance is so crucial.

Discharge vs. Other Outcomes

Absolute discharge sentences allow the most freedom for the guilty party, with conditional discharge sentences following close behind. However, other outcomes enable defendants to serve their sentences without incarceration, provided they are unlikely to reoffend and typically guilty of minor, first-time offences. 

Suspended sentences and conditional sentences are other sentencing options for those found guilty of or who plead guilty to minor offences. A suspended sentence is similar to an absolute discharge, where the defendant is released back to his or her everyday life. But, there are some conditions to the release, and the charge remains on the guilty party’s criminal record. The conditions are a form of probation, usually lasting 1-3 years. 

With a conditional sentence, the convicted person will be able to serve their sentence at home on house arrest. This also means that the conviction stays on the criminal record until the defendant and criminal defence lawyer apply for expungement or pardon.

Finally, intermittent sentences require a guilty person to serve a short time in jail, but can do so on the weekends to keep a job and an everyday life. Those will also remain on your criminal record.

How to Obtain a Discharge

To obtain a discharge, you need to show the judge and prosecution that you will not break the law again, and that this particular event was out of character for you. You also need to retain a lawyer who has a good relationship with The Crown, as a discharge is something the defence and prosecutor agree to before bringing the option to the judge. This is where it is highly beneficial to hire criminal defence lawyers with 30 years of experience trying cases in southern Saskatchewan—knowing and trusting the skill and background of the legal team can help solidify a path forward with the Crown. 

From there, the discharge is at the judge’s discretion. 

A Discharge May Be Possible for Your Criminal Defence in Southern Saskatchewan

If you’re facing criminal charges and you do not want a finding of guilt to define the rest of your life, you need skilled legal guidance. Contact Nychuk & Company at 306-993-1476 or reach out online 24/7 to schedule a consultation. Whether in-person or virtual, we’re here to provide expert legal support to help protect your freedom and future.