If you have been found guilty of committing a criminal offence, you may be offered a conditional discharge or absolute discharge as an alternative to jail time and a permanent criminal record. Such offers are generally only given for non-violent offences, such as theft and drug crimes, that may be better addressed with counselling or rehabilitation than time behind bars.
Under the Criminal Code of Canada and the Criminal Records Act, an individual who is charged with a crime may be facing a jail sentence and hefty fines, but the Crown Attorney may also offer probation, conditional sentences, and discharges, when appropriate.
Vilkhov Law has protected the rights of countless individuals charged with criminal offences, and we have an exemplary record of obtaining the results our clients want. We will defend your best interests, and work tirelessly to keep your record clean. Do not attempt to go through this difficult process alone. If you have been charged with a criminal offence in Ontario, we can help. Contact Vilkhov Law today for a free and confidential consultation about your case.
Conditional Discharge vs. Absolute Discharge
As both conditional and absolute discharges do not result in a permanent criminal record, obtaining a discharge is often the preferred outcome when facing criminal charges. That being said, sometimes a discharge remains on a person’s permanent record due to an internal mistake, such as having it inaccurately recorded as a conviction, or because the courts or police simply fail to process the purge.
In addition to no permanent criminal record, obtaining either type of discharge means that you will be found guilty but not convicted. This is an important distinction for many reasons, one of which is the ability to answer truthfully on job applications that you have never been convicted of a crime. If, however, the application asks if you’ve ever been found guilty, you would need to answer yes.
Although there are similarities between conditional and absolute charges, there are also distinct differences.
Conditional discharge occurs when the court finds you guilty of the charges against you and offers discharge in lieu of a criminal record, but with certain conditions. Generally speaking, a conditional discharge includes up to three years of probation. The conditions of your probation will depend largely on the type and severity of your offence, and any prior criminal history.
If you fail to adhere to the conditions of your discharge, you will likely get an even tougher sentence than the original sentence for the underlying crime, and you may be charged with another offence. If, however, you abide by the terms of the conditional discharge, it should be automatically removed from the Canadian Police database within three years. As mentioned earlier, however, it is important not to simply assume that the discharge has been purged; an Ontario defence lawyer can ensure that proper protocol has been followed and your record has been cleared after the appropriate amount of time has passed.
An absolute discharge, on the other hand, carries no probation, no conditions, and no future requirement to return to court. Furthermore, an absolute discharge will only remain on the offender’s criminal record for one year after the discharge is complete. Aside from a complete withdrawal of charges, absolute discharge is the preferred outcome for anyone facing criminal charges.
Does a Discharge Show up on Your Background Check?
The short answer is yes, a discharge will appear on a background check for employment, housing, adoption, and volunteering until—and if—it is purged.
This purge should occur in three years if the discharge is conditional, and one year if absolute. In some cases, the discharge will be automatically purged, but you may have to request the purge in writing. If an automatic purge does not occur and you do not request to have the discharge removed, it will remain on your record permanently.
Furthermore, if you disclose your discharge to a third party, such as a potential employer, that third party may create a permanent record of the offence.
Can You Travel With a Conditional Discharge?
It depends. Although a discharge does not result in a criminal conviction, it is an admission of guilt. The United States views this admission of guilt the same as any conviction or admission of guilt; if it pertains to an excludable offence, you will be prohibited from travelling to the U.S. However, if your offence is one of several non-excludable offences, the discharge will not impact your ability to travel. The current non-excludable offences are as follows:
- Impaired driving charge
- Mischief
- Common assault
- Assaulting a peace officer
- Failure to comply
- Trespassing
- Causing a disturbance
Generally speaking, none of these offences will prevent you from international travel. If, however, your discharge is tied to an excludable offence, such as a crime of violence or moral turpitude (theft, fraud), you will be prohibited from travel, with rare exceptions.
Is a Discharge Better than a Withdrawn Charge?
No. A withdrawn charge is preferable to a conditional or absolute discharge because the offender is not found guilty when a charge is withdrawn. Although a discharge does not result in a conviction, it does result in a guilty charge. And with no equivalent to an absolute or conditional charge in the United States, someone could be denied U.S. entry if a border guard sees that they were found guilty of certain charges.
This is one of the many reasons it is so important to work with experienced legal counsel before accepting any type of discharge offered by the Crown Attorney. In many cases, an absolute or conditional discharge may be preferable to the alternative, but not always. An experienced Ontario defence lawyer can evaluate your unique situation to determine the best legal strategy for moving forward.
Contact Vilkhov Law Today
If you have been charged with any type of criminal offence, the skilled legal team at Vilkhov Law can help. There is no one-size-fits-all approach to navigating the criminal justice system, and we will tailor our strategy to your unique situation and needs. Our client-focused partnership approach ensures that the client’s best interests always come first. We will work tirelessly to ensure that your rights are protected and position you for the most favourable outcome possible. If you are facing criminal charges, don’t face them alone. Contact Vilkhov Law today for a free and confidential consultation about your case.
