Anyone facing criminal charges in the Greater Toronto Area obviously wants to secure the most favorable outcome. This explains in large part why most people facing such charges seek out the services of an experienced criminal lawyer. When hiring a Toronto-area lawyer, criminal defendants carry expectations that their lawyer will produce positive results.
In particular, when you hire a criminal lawyer you want them to get the charges withdrawn or dismissed pre-trial or secure an acquittal at trial. Absent these favorable outcomes, there are expectations that your lawyer can at least secure reduced charges and/or otherwise mitigate the severity of the outcome. A common mitigating outcome often sought by criminal lawyers is what’s known as a discharge. And if your lawyer suggests that this option might represent the most favorable outcome you can expect from the court, you should pay attention.
What Exactly is a Discharge?
Available to defendants charged with criminal offences that do not carry mandatory minimum punishments, a discharge is technically not a criminal conviction but still an indicator of guilt. Because it is technically not considered a criminal conviction in Canada it may be purged from your criminal record—“may” being a key word as its presence and removal from your criminal record is complicated (more on this below).
Canadian courts provide for two types of discharges: absolute and conditional. As suggested by their respective names, “absolute” is the most favorable discharge and comes with few conditions, while the still favorable “conditional” discharge bears the onus of some conditions. To put it into perspective, an absolute discharge is the most favorable outcome a defendant can secure from criminal charges other than withdrawn charges, a dismissal, or an acquittal. In order of favourability this is followed by:
- Conditional discharge
- Suspended sentence and probation
- Conditional sentence (house arrest)
- Jail term (two years or less)
- Prison term (two or more years)
Understanding an Absolute Discharge
When a judge grants an absolute discharge after a pleading or finding of guilt in a case, it means that the defendant has no more obligations to the court. With the exception of potential victim restitution, the discharge comes with no penalties or other conditions. The discharge will appear on the National Criminal Records Repository at the Canadian Police Information Centre (CPIC) for one year, after which it is supposed to be automatically purged.
In some cases, absolute discharges are negotiated as part of a plea bargain arrangement with the Crown. This can often include an arrangement in which the defendant agrees to participate in some upfront community service prior to sentencing.
The Conditions of a Conditional Discharge
A conditional discharge is similar to an absolute discharge but usually includes 12 months to three years of probation, the terms of which must be followed or the discharge may be revoked. A conditional discharge can also come with community service, victim restitution, counseling, and other conditions, such as abstaining from alcohol and/or drugs. A conditional discharge remains on the CPIC’s data base for three years, after which it is supposed to be purged.
Failure to adhere to the conditions of the discharge can result in the imposition of an even tougher sentence than you would have received instead of the discharge. This will almost certainly result in a criminal record, as well.
How Defendants Secure a Discharge
Absolute and conditional discharges are often negotiated by the criminal defence lawyer and Crown prosecutor. While the judge doesn’t have to allow for a discharge if jointly recommended by the parties, they generally follow such recommendations. When the Crown and defence are at odds over appropriate sentencing, a judge may still grant a discharge even if opposed by the Crown. Likewise, the judge can reject a discharge even if supported by the Crown and Defence.
Judges weighs the appropriateness of granting a discharge based on whether the sentence is in the best interests of both the defendant and the public at large. Other factors that can help improve the chances of getting a discharge include:
- Lack of a previous criminal record .
- Judgements in similar cases resulted in a discharge.
- Gainful employment and positive contributions to the community.
- Positive character references from established members of the community.
- Efforts by the defendant to mitigate any negative elements resulting from the crime (community service, restitution, counselling, etc.).
- The charges did not involve physical harm or the use of weapons.
- The offender’s career and potential ability to support a family would be ruined by a criminal conviction.
- The offender’s employment or other responsibilities necessitate international travel.
Absolute and Conditional Discharges in Relation to Criminal Records
While the record of your discharge is supposed to be automatically purged from the CPIC after the respective one- or three-year time frames have passed, it does not always happen. The centre has a reputation for being slow with its processing and sometimes fails to remove discharges due to internal record-keeping mistakes. Discharge purge failures also occur because the courts sometimes accidently record discharges as convictions. To ensure that your absolute or conditional discharge is purged from the records, you should submit a written request to the CPIC.
Note also that the record of your arrest and resultant discharge outcome from the court remains with the offices of the arresting police department. You can make a written request that these files be destroyed, but the department does not have to comply. That said, police departments and agencies are only allowed to share such records under limited circumstances proscribed for by the Canadian Criminal Record Act. The court under which the discharge was issued, also retains a record of it and the case; however, such information would not be released to the public without a court order.
As to whether you have to disclose your discharge to potential employers or for other background check purposes, technically speaking it’s all in how such questions are posed. With a discharge you can truthfully answer “no” if you are asked whether you have ever been convicted and “no” to the question of whether you have a criminal record once it has been purged by the CPIC. However, if the question revolves around “have you ever been found or pled guilty to an offence,” you would have to truthfully answer yes.
Crossing the Border
Because the CPIC shares its database with the U.S. Department of Homeland Security, U.S. border officials may have records of your absolute or conditional discharge even if already purged. Even though a discharge does not result in a criminal conviction, the U.S. treats an admission or finding of guilt the same as a conviction. Thus, depending upon the charges, you may be prohibited from entering the U.S. Lower-level crimes will typically not prohibit your travel to the U.S. (and other countries), but crimes of violence, theft, and fraud my impact your ability to enter, necessitating the need to apply for a waiver for legal entry.
Consult with Mass Tsang for your Criminal Defence Needs
Mass Tsang lawyers have successfully defended thousands of Toronto-area criminal cases and have a solid record of securing favorable outcomes for their clients. If you or someone you know is facing criminal charges in the greater Toronto area, the expert lawyers at Mass Tsang today for a free consultation.