Conditional Discharge
A conditional discharge is a finding of guilt without a conviction, conditional on the accused completing a probation order. It sits between an absolute discharge (no conditions) and a suspended sentence (a conviction). If the conditions are met, no criminal record results. Authorized by section 730 of the Criminal Code.
Failing to comply with probation is itself a criminal offence under section 733.1 — and a breach can lead the Crown to seek revocation of the discharge and entry of a conviction on the original offence.
When a conditional discharge is available
The eligibility rules are the same as for an absolute discharge: the offence does not carry a mandatory minimum punishment; the offence is not punishable by 14 years' imprisonment or life; the court considers it in the best interest of the accused; and the court considers it not contrary to the public interest.
The probation order
A conditional discharge requires the accused to enter into a probation order under section 731 of the Criminal Code. Probation can run for up to three years and typically includes: statutory conditions — keep the peace, be of good behaviour, attend court when required, notify the probation officer of changes in address or employment; standard reporting conditions — periodic check-ins with a probation officer; optional conditions tailored to the case — abstaining from alcohol or drugs, no contact with specified persons, counselling (anger management, substance use, partner abuse), community service, restitution.
How long the discharge stays on file
A conditional discharge is automatically removed from the RCMP's CPIC database three years after the end of the probation period. The longer wait reflects the conditional nature of the outcome. Until removal, the discharge can appear on some background checks.
Conditional discharge vs. suspended sentence
Both involve probation. The crucial difference: a conditional discharge is a finding of guilt without a conviction (no criminal record, subject to compliance). A suspended sentence is a conviction with the punishment held in abeyance (a criminal record is created; wait time for record suspension is five (summary) or ten (indictable) years from completion of probation).
Where conditional discharges are commonly granted
Conditional discharges are commonly granted in: first-time, low-to-mid-range theft, fraud, or mischief cases; some simple assault cases — particularly with mitigating personal circumstances; some domestic assault cases — though this is harder to obtain given Crown policies; and some drug possession cases.
How Mass Tsang argues for conditional discharges
As with absolute discharges, conditional discharges require careful sentencing preparation. The defence has to demonstrate that the discharge is in the accused's best interest — typically by showing how a conviction would damage employment, immigration status, or family responsibilities — and not contrary to the public interest. The lawyers at Mass Tsang LLP regularly succeed in resolving cases with discharge outcomes. For related reading, see our blog post on criminal records in Canada.
Related glossary terms
