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Toronto Assault Charges Lawyer

Absolute Discharges and Conditional Discharges in Canada

What is the definition of an absolute discharge and a conditional discharge, how they effect employment background checks, membership and application to professional regulatory bodies, US travel, and how to get a discharge for your case.

Some offenders who are found guilty may be sentenced to an Absolute Discharge or a Conditional Discharge, neither of which is considered a criminal conviction record in Canada.

When a defendant is found guilty of a criminal offence (either after pleading guilty or being found guilty by a Judge after a trial), a sentencing hearing will follow to determine what the punishment will be.

In Canada, the range of potential punishments (from least to most onerous) is as follows:

  1. absolute discharge
  2. conditional discharge and probation
  3. suspended sentence and probation
  4. fines
  5. conditional sentence (house arrest)
  6. jail (custody less than two years)
  7. penitentiary (custody for two years or more)

Of these, only an absolute discharge and a conditional discharge is considered not to be a criminal conviction record in Canada.

Despite this, discharges are not necessarily recognized by US Customs and many professions are now asking applicants about findings of guilt regardless of having received a discharge.

Discharges are available for offences (both domestic and non-domestic) without mandatory minimum punishments such as assault, utter threats, mischief under or over $5000, breach of recognizance, fail to comply with conditions, and theft/fraud over or under $5000. Some other common charges, including DUI/over 80, are not eligible.

While not a perfect solution, and not always a possibility, the most common question in 2015 that job applicants find on employment forms remains:

"Do you have a criminal conviction for which a pardon has not been granted?"

If you are sentenced to an absolute discharge or a conditional discharge you are able to respond "no" to this question (even while serving probation in the latter).

Any other sentence would result in a conviction however (including a fine). It is important to note that there is no such thing as a pardon (or as it is now called a “Records Suspension”) for an absolute or conditional discharge because there is no conviction to be pardoned.

Absolute Discharge

An absolute discharge means that the offender will have no further conditions or sanctions placed upon him after sentencing (with the exception of a small victims fine surcharge). It also will (or at least is supposed to be) automatically purged from the CPIC database after one year and will only show as a non-conviction on a police check for a one year period.

The primary difference between an absolute discharge and a conditional discharge is that the offender is not required to serve a period of probation. Sometimes, however, in order to get an absolute discharge, the offender will have to complete upfront community service hours prior to sentencing. The reason for this is twofold:

  1. it mitigates the societal harm caused by the crime by giving back to the community and therefore is a persuasive tool for the defendant's lawyer who is arguing in favor of the absolute discharge to the judge;

  2. it reduces the need for probation as often a probation order will require a defendant to perform a community service order (CSO). Judges will often want to punish the accused by requiring a certain number of hours of community service and they are only able to do this by placing the accused on probation. If the community service has already been completed upfront, the Judge may feel it is unnecessary to require the defendant to serve a period of probation.

Conditional Discharges

A conditional discharge also is considered a non-conviction, however most often will come with a 12 month period of probation. Terms of probation will include standard clauses such as to keep the peace and be of good behaviour and notify your probation officer of any change of address or employment. Additional terms are often added to include the requirement to perform community service, make restitution, donate to charity, and attend counseling as required by the probation officer.

In domestic violence cases, there is often a no contact clause which, depending on the wishes of the victim, may include an exception to allow for contact/communication with consent of the complainant. In the domestic context, Crown Attorneys will often push the judge to include probation under the idea that it protects the "victim" by giving her the ability to withdraw her consent at any time. Defence attorneys would normally then argue that if a subsequent offence took place any call to 911 would have the same effect of breaking up the parties.

In cases involving alcohol or drugs, sometimes the probation order is sought to force the accused to attend counselling or workshops. Some Government paid for workshops would not be available to the accused without a court order requiring it.

Do Absolute Discharges and Conditional Discharges show up on Police Background Checks?

All GTA police forces will include under a non-conviction section an absolute discharge for one year after the date of sentence which will state the offence the person was found guilty for. This includes even the most basic level checks. For conditional discharges, that time period is expanded to three years from the date of sentence.

Of course, there are other types of police background checks, such as Vulnerable Sector Screenings which may include charge information long after the expiration of the one/three year time period. Sometimes we are able to make special applications to suppress this information. Information about the charges is also shared with US Customs, Citizenship and Immigration Canada, and other Government and law enforcement agencies long after the above noted time periods have expired

Is an Absolute Discharge or a Conditional Discharge better than a Withdrawn charge?


No. A withdrawn charge is better than an Absolute or Conditional discharge because no court finds the accused guilty of a crime when a charge is withdrawn. Despite being discharged in Canadian law, there is no equivalent in the United States. This means the border guard may deny you entry if he sees that you were found guilty despite receiving a discharge.

Employment problems: Some professional regulatory bodies require proactive disclosure of findings of guilt despite receiving a discharge

While discharges were created to give people a second chance, many professional regulatory bodies are looking to negate their purpose by asking applicants if they have ever been "found guilty".

Here are just a few examples of this practice:

ECE workers: College of Early Childhood Educators

ECE workers are required to annually disclose findings of guilt on their Annual Membership Renewal Form under Under Section 1(a) Declaration of Conduct, which asks:

"Have you been found guilty of a criminal offence in Canada or in any jurisdiction outside of Canada?"

An individual would be required to answer "Yes" despite receiving a discharge. To view the form yourself, see here: https://www.college-ece.ca/en/Documents/Form_Membership_Renewal.pdf

Doctors and Physicians: The College of Physicians and Surgeons of Ontario

Applicants wishing to become a medical Physician in Ontario will encounter the following question on their application form at Section 10(d)(i) Charges and Convictions, which requires applicants to answer:

"Have you ever pleaded guilty to, or been found guilty of, any offence?"

The physician applicant would have to answer "Yes" to this question despite receiving a discharge. This form itself can be found here: https://www.cpso.on.ca/..application.pdf

These are just two examples. Other regulatory bodies/professional societies such as OMVIC, Nursing, OREA, etc. have similar provisions. In the past, this question would only relate to convictions. By asking about findings of guilt, many governing bodies of regulated professions in Ontario now ensure all applicants and/or current members are required to disclose offences that have been discharged.

Does the RCMP CPIC system ever remove information about absolute and conditional discharges?

Since July 24, 1992, the CPIC database has been said to automatically delete entries for absolute and conditional discharges after one and three years, respectively. Discharges received prior to this date require an application to be made. Since the RCMP are notoriously slow to update their systems, entries may exist much longer than they are said to exist before being purged.

Also, since the RCMP give full access to the CPIC database to the United States there is no way of definitively knowing whether the US Department of Homeland Security download and store the database periodically on their own. Given that the US know the information is often later removed, it would make sense for them, from an intelligence standpoint, to actively store it while they have access to it.

It is also not clear as to the full extent of the "destruction" as the individual’s name, date of birth, fingerprints, and charge may be listed with the disposition simply being described as "sealed" which is what happens when a person receives a pardon.

What about the fingerprints, mugshot, etc. in the local police force's database?

The automatic removal of entries from the CPIC database also does not destroy the local police records including the fingerprints and photograph of the accused. We are often able to have this destroyed upon making an application.

Are Withdrawn charges also automatically removed from CPIC after a set period of time?

No. Withdrawn charges can only be removed by application.

If a withdrawn charge is better, as indicated above, then how come an application is required for destruction unlike with a discharge?

We agree that it does not make sense. There are many things that do not make sense when it comes to the criminal justice system in Canada.

How do I get the judge to sentence me to some form of a discharge so I don't get a criminal record?

The first step is to see if the Crown Attorney will withdraw the charge. If not, it is important that your lawyer try everything possible to convince the Crown to take a position to the sentencing the judge that the client receive a discharge. If the Crown recommends a discharge, it is much more likely that the Judge will sentence the offender this way. Obviously, the judge can sentence as he sees fit (including jail), but it is in the defence's advantage to have a joint recommendation on sentence (Crown and defence attorney both asking for the same sentence) as it significantly reduces the risk to their client of getting a criminal record.

Even if the Crown opposes a discharge a judge may still grant one

After a finding of guilt, there is a hearing that takes place to determine what the sentence (punishment) will be. Just because the Crown seeks a suspended sentence, jail, or some other unfavorable disposition does not mean that is what the offender will be sentenced to. It is the job of the defence lawyer, where reasonably possible, to convince the judge that it is in society's best interest to discharge you.

Factors that can help include:

  1. no previous record
  2. the offence not being overly aggravating (no physical harm, weapon used, etc.)
  3. the offender has taken steps to mitigate the circumstances (counselling, community work, etc.)
  4. the offender has a job/education background that would be ruined if they were convicted (possibly resulting in them not being able to support their family)
  5. the offender’s employment or family responsibilities requires him being able to travel to the United States
  6. case law of judgements in other cases of similar backgrounds resulting in a discharge

How a defence lawyer can use the Judicial Pre-Trial process to try to help bring the Crown Attorney on side for, or secure a discharge for their client

While the Crown can never be forced to take a certain position, if the Crown refuses ask for a discharge a lawyer can schedule a Judicial Pre-Trial (JPT) which is a meeting between the defence lawyer, the Crown Attorney and the Judge (sometimes the police officer in charge of the case is also present). If the judge is persuaded by the arguments and recommendations of the defence they will sometimes state that they would sentence the client to an absolute or conditional discharge. If the plea is held in front of the JPT Judge, this virtually guarantees the result though technically the judge could still change his mind.

Having the Judge, who makes the decision, tell you how he plans to sentence the offender makes the Crown's position practically irrelevant. The Crown may still formally ask for the tougher sentence as a matter of public policy. They want to be able to assure the public they sought a tough penalty despite knowing they would not be able to get the result they sought after the conclusion of the Judicial Pre Trial.

The Judicial Pre-Trial can also be helpful in persuading the Crown to withdraw charges as well. While not even the Judge can force the Crown to withdraw, it is extremely persuasive if comments are made by the Judge that he thinks such a position would be appropriate. This can sometimes be the catalyst for the Crown to agree to a withdrawn charge or offer a peace bond as a resolution when they previously refused to do so.

Should a lawyer always ask the Judge for an absolute discharge at a sentencing hearing?

For cases that proceed to sentencing (after a plea or finding of guilt), a lawyer has to be careful about not appearing unreasonable to the Judge in what he asks for. An Absolute Discharge is meant to be the exception, not the rule. The facts of the case and seriousness of the allegation, along with the defendant’s background, will determine what a reasonable sentence request will be. In cases where the Crown is seeking jail, it may be a little overly ambitious to request an absolute discharge as it may distract or annoy the judge if he thinks it to be not appropriate at all.

With a conditional discharge, punitive community service hours, counselling and other terms can be included and thus many Judge's are more comfortable granting discharges that are conditional in aggravating cases. At the end of the day, the defendant does not get a criminal record or conviction registered against him which is the most important thing.

A Conditional Discharge is available in many cases where an Absolute Discharge is not realistic. The defendant would take a substantial loss if this opportunity is missed because their lawyer pushes an sentence instead (causing the Judge to side with the Crown in giving him a criminal record).

It is important that you are represented by a lawyer who knows exactly how to work the specifics of your case to obtain the best possible outcome without jeopardizing your future.


Call us today for a free assessment

If you have been encouraged to take a case to trial when the facts are relatively minor (no weapon used or significant injury) and the "victim" is on your side, call us today for a second opinion. Often these types of charges can be withdrawn and the release conditions varied to allow contact without a risky and unnecessary trial.

You don't need to be apart from your spouse and family, spend tens of thousands of dollars, and risk getting a criminal record because of an unfortunate domestic incident. We charge a flat fee of $5000 +hst for most cases that we are able to resolve without a trial.



   call us: 647-228-5969

   contact@torontoassaultlawyer.ca


    call us: 647-228-5969

    contact@torontoassaultlawyer.ca

Your case will be defended by a fully licensed Practicing Lawyer of the Law Society of Ontario. For more information about our lawyer, click here.

We provide our clients with:
  • Flat fee pricing
  • US travel advice and information
  • Employment background check advice/services
  • Fingerprints and records destruction services
  • Clear goals of getting charges dropped and bail conditions varied without a trial
  • Help with related immigration issues
  • Vulnerable Sector records suppression help
  • Experienced, focused counsel


* Please note:

If you are the alleged victim, and are looking to help your spouse/partner's case, please see our affidavit services page here.

If you are not a paying client, we cannot answer questions and provide assistance with US travel, immigration, employment background checks, and avoiding a criminal record. This includes those who have already retained other counsel and those whose cases have already been completed.

We only can take calls/emails relating to GTA area cases. Please see our FAQ for a listing of the courthouses we service.

Are you a lawyer? If you are defending a domestic assault/threats/mischief related case and are looking for expert advice regarding possible defences and case strategies, call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.


         

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  We provide:
  • Flat fee pricing
  • US travel advice and information
  • Employment background check advice/services
  • Fingerprint and records destruction
  • Clear goals of getting charges dropped and bail conditions varied without a trial
  • Help with related immigration issues
  • Vulnerable Sector records suppression help
  • Experienced, focused counsel
  We provide:
  • Flat fee pricing
  • US travel advice and information
  • Employment background check advice/services
  • Fingerprint and records destruction
  • Clear goals of getting charges dropped and bail conditions varied without a trial
  • Help with related immigration issues
  • Vulnerable Sector records suppression help
  • Experienced, focused counsel