Absolute and Conditional Discharges

Section 730 of the Criminal Code authorizes courts to discharge accused persons absolutely or conditionally instead of entering a conviction, so long as the specific statutory criteria are met.

This occurs when you plead guilty or a judge finds you guilty but does not register a criminal conviction. It allows eligible individuals to avoid the long-term consequences of a criminal record.

There are two types of Discharges

• Absolute Discharge: Takes effect immediately with no strings attached. You are free to go with a finding of guilt, but no conviction is recorded.

• Conditional Discharge: Requires you to successfully complete a period of probation (which may include community service or counseling). Once successfully completed, the discharge becomes permanent.

Eligibility and Criteria

Not all offenses are eligible for a discharge. They are generally reserved for first-time or minor offenders where the crime has no mandatory minimum sentence, and the maximum penalty is under 14 years. By law, judges will only grant a discharge if it is in, 1 - the best interest of the accused and, 2 - not contrary to the public interest.

How Discharges Affect Your Record

While a discharge means no criminal conviction, it does not immediately disappear from your record.

• Absolute Discharge: Stays on your criminal record (and local police databases) for 1 year from the sentencing date.

• Conditional Discharge: Stays on your record for 3 years from the sentencing date.

• Removal: After these periods, the discharge should theoretically be removed from the police databases. However, some police enforcement agencies and local courts may require a formal written request or application to fully removing local records.

Important Considerations

• Employment & Travel: For employment and similar applications, you can legally state that you have no criminal conviction. However, Customs and some border agents can see a discharge on your record during the active 1 or 3 year period (depending on which discharge you received), which could cause admissibility issues.

• Vulnerable Sector Checks: Even after the discharge is fully removed, some enhanced vulnerable sector checks may still show that a discharge was granted.

MacKillop Pictou Law Group is here to help

For more detailed information, or assistance with obtaining a discharge, please feel free to contact the MacKillop Pictou Law Group team, located in Halifax, Nova Scotia, as our team of dedicated criminal law lawyers are always happy to help!