Key Takeaway:
- No Criminal Record – Both conditional and absolute discharges prevent a permanent criminal record, offering a second chance for eligible offenders.
- You Are Still Found Guilty – A discharge means you were found guilty, but not convicted. This distinction matters on job applications and legal forms.
- Conditional vs. Absolute – A conditional discharge comes with probation and conditions; an absolute discharge is immediate and unconditional.
- Automatic Removal – Absolute discharges are removed from your record after 1 year; conditional discharges after 3 years, but only if processed correctly.
- It Can Still Affect Your Life – Travel, employment, housing, volunteering, and education may be impacted during the active period of the discharge.
- Legal Advice Is Essential – Always consult a criminal defence lawyer to understand your options and ensure that your discharge is handled appropriately.
What Is a Discharge in Canadian Criminal Law?
In Canadian criminal law, a discharge is a sentencing option available to individuals who have been found guilty of an offence but, in the court’s view, do not warrant a conviction. It offers a second chance, particularly for first-time offenders or those involved in non-violent, low-level crimes, by allowing them to avoid a permanent criminal record.
There are two types of discharges: absolute and conditional. While both prevent a conviction from being registered, a conditional discharge comes with specific terms (like probation), whereas an absolute discharge does not.
Discharges are typically considered in cases where rehabilitation is more appropriate than punishment, such as offences involving theft under $5,000, possession of a controlled substance, or mischief. The goal is to strike a balance between accountability and the potential for reintegration without the burden of a lasting criminal record.
Under the Criminal Code of Canada and the Criminal Records Act, the court has the discretion to issue a discharge if it is in the best interest of the offender and not contrary to the public interest.
Conditional Discharge vs. Absolute Discharge
When facing a criminal charge in Canada, receiving a discharge can help you avoid a permanent criminal record. There are two types: conditional and absolute. While both discharges mean you are found guilty but not convicted, they have key differences in terms of consequences and obligations.
It’s essential to note that although discharges do not result in a criminal conviction, they can still temporarily appear on background checks. In some cases, they may remain on file due to administrative errors or failures to process a purge. A criminal defence lawyer can help ensure your discharge is correctly removed from the record after the required waiting period.
H3: What Is a Conditional Discharge?
A conditional discharge means the court finds you guilty but agrees to discharge you under specific conditions, typically outlined in a probation order. Conditions may include:
- Reporting to a probation officer
- Attending counselling or rehabilitation
- Abstaining from drugs or alcohol
- Avoiding specific individuals or locations
The probation period typically lasts between one and three years. If you complete all conditions successfully, the discharge is automatically removed from the CPIC (Canadian Police Information Centre) after three years. However, failure to comply with the conditions could result in harsher penalties or additional charges.
What Is an Absolute Discharge?
An absolute discharge is the most lenient sentencing option after a finding of guilt. It involves no probation, no conditions, and no follow-up court appearances. Once the court issues the discharge, the case is essentially closed.
An absolute discharge remains on your record for one year, after which it is automatically purged from CPIC — assuming there are no errors in the process.
At a Glance: Key Differences
| Feature | Conditional Discharge | Absolute Discharge |
|---|---|---|
| Guilty finding | ✅ Yes | ✅ Yes |
| Conviction entered | ❌ No | ❌ No |
| Probation | ✅ Yes (up to 3 years) | ❌ No |
| Conditions imposed | ✅ Yes (e.g. counselling, abstention) | ❌ No |
| Removal from record | After 3 years, if conditions met | After 1 year |
| Risk of breach consequences | ✅ Yes (can lead to further charges or penalties) | ❌ No |
| Most lenient option | ➖ No | ✅ Yes |
Who Is Eligible for a Discharge?
In Canada, not everyone charged with a criminal offence is eligible for a discharge. The court will only consider granting a discharge, whether conditional or absolute, under the specific circumstances outlined in Section 730 of the Criminal Code of Canada. The main factors a judge will consider include:
1. The Offence Must Not Carry a Minimum Sentence
Discharges are only available for offences that do not carry a mandatory minimum penalty and where the maximum punishment is less than 14 years imprisonment. Common eligible offences include:
- Theft under $5,000
- Possession of a controlled substance
- Mischief or minor property damage
- Fraud under $5,000
Violent crimes, sexual offences, or crimes with mandatory jail time are generally not eligible.
2. The Discharge Must Be in the Public Interest
The court must believe that granting a discharge would benefit society by avoiding unnecessary criminal records for low-risk individuals. For example:
- First-time offenders
- Individuals who committed the crime under unique or mitigating circumstances
- Offenders willing to undergo counselling, community service, or treatment
This is guided by the principles of sentencing outlined in Section 718 of the Criminal Code, which emphasizes rehabilitation and the use of alternatives to imprisonment where appropriate.
3. The Discharge Must Be in the Best Interest of the Offender
Judges will assess how a criminal conviction could negatively affect the individual’s future, such as:
- Impact on employment or professional licensing
- Travel restrictions
- Immigration or permanent residency concerns
A discharge is the most constructive path forward, especially for individuals who show remorse, take responsibility, and make efforts to rehabilitate.
Judicial Discretion
Discharges are granted at the judge’s discretion, even if all eligibility criteria are met. The Crown prosecutor may oppose the discharge, but the final decision rests with the court.
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.
How a Discharge Can Affect Your Life
Although a discharge spares you from having a permanent criminal record, it can still temporarily impact different aspects of your personal and professional life. Understanding these short-term effects can help you make informed decisions and better prepare for the future.
Employment and Housing Applications
A discharge — whether absolute or conditional — does not count as a criminal conviction, but it still means you were found guilty. This nuance can matter in background checks.
- Employers and landlords who request police record checks may see your discharge until it is purged (1 year for absolute, 3 years for conditional).
- You may truthfully state that you have not been convicted of a criminal offence — but if asked whether you’ve ever been found guilty, the answer must be yes.
- Some professions (e.g., healthcare, teaching, law enforcement, and finance) have strict background screening policies that may still consider the presence of a discharge negatively, even if it’s not a conviction.
It’s wise to check your record after the purge date to ensure it has been adequately removed.
Volunteering, Adoption, and Education
A discharge can temporarily affect your eligibility for roles involving vulnerable populations, such as:
- Volunteering with children, seniors, or persons with disabilities
- Applying for foster parenting or adoption
- Accessing specific post-secondary programs or professional licensing boards
These roles and programs often require vulnerable sector checks, which may still show a discharge during the retention period. Even after the purge, some records may persist in specific internal databases unless actively addressed with the assistance of a lawyer.
Travelling Abroad
Travel with a discharge is possible, but border agencies in other countries may view a discharge differently than Canadian law does.
- The United States, in particular, may treat a discharge as equivalent to a conviction depending on the underlying offence. U.S. Customs and Border Protection (CBP) has access to the Canadian Police Information Centre (CPIC) and may deny entry based on the information contained therein.
- Other countries have their immigration policies, and even a non-conviction can cause travel issues, especially when applying for visas or work permits.
To avoid problems, it’s recommended to:
- Consult with a lawyer if you plan to travel during the discharge retention period.
- Confirm the purge of your record after the one- or three-year waiting period.
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.
Should You Accept a Discharge?
Being offered a discharge, whether absolute or conditional, is a relief, especially when compared to a conviction and the possibility of jail time. However, it’s essential to understand that accepting a discharge means pleading guilty and being formally found guilty of the offence. That decision carries legal and practical consequences, so it should not be made lightly.
“A discharge isn’t just a legal outcome — it’s an opportunity to move forward without the burden of a criminal record. But it’s not automatic, and it’s not guaranteed. The court must be convinced that it’s in the best interest of both the accused and the public. That’s where strategic legal representation makes all the difference.”
Key Considerations Before Accepting a Discharge
- Nature of the Offence: Discharges are typically offered only for less serious, non-violent offences such as minor theft, mischief, or possession of a controlled substance. If the Crown is offering a discharge, it’s likely because the offence is considered low-risk and the accused is seen as unlikely to reoffend.
- Future Plans: If your career goals involve vulnerable sector work, international travel, or professional licensing, you should weigh the temporary presence of the discharge on your record. It may affect job or visa applications during the retention period.
- Likelihood of Acquittal: If you believe you have a strong defence and a chance to be acquitted at trial, you may want to fight the charges rather than accept a discharge. Remember: a discharge still involves a finding of guilt.
- Immigration Status: If you are not a Canadian citizen, even a discharge can affect your immigration or permanent residency application. In these cases, always consult an immigration lawyer before making any plea decisions.
Why Legal Advice Matters
Deciding to accept a discharge without legal counsel can lead to long-term consequences you may not anticipate. A criminal defence lawyer can:
- Review the strength of the Crown’s case
- Evaluate if a discharge is truly in your best interest
- Negotiate the most favourable terms (e.g., conditional vs. absolute)
- Ensure proper purging procedures are followed post-discharge
At Vilkhov Law, we help clients navigate these complex decisions with clarity and confidence. If you’ve been offered a discharge or are negotiating with the Crown, contact us for a free, confidential consultation to ensure your rights are fully protected.
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.
Frequently Asked Questions
Does a discharge mean I have a criminal record?
No. A discharge means you were found guilty but not convicted, so it does not result in a permanent criminal record. However, the discharge does remain on your police record for some time — one year for absolute discharge and three years for conditional discharge — before it is automatically purged.
Will a discharge show up on a background check?
Yes. While a discharge is not a conviction, it can appear on certain levels of police background checks until it is purged. After the retention period, it should no longer appear, but it’s wise to confirm the purge with local police or a lawyer.
Can I get a discharge for any criminal offence?
No. Discharges are generally reserved for less serious and non-violent offences, such as minor theft or possession of a controlled substance. The court also considers your background, likelihood of reoffending, and the public interest when deciding to grant a discharge.
What happens if I violate the conditions of a conditional discharge?
If you breach the conditions of your probation under a conditional discharge, the court may revoke the discharge and impose a more severe sentence, including a conviction, a fine, or even imprisonment. Always follow the terms closely and seek legal advice if you are unsure.
Do I still need a lawyer if I’m offered a discharge?
Absolutely. Even if a discharge seems like a favourable outcome, it still involves a finding of guilt and can carry both short-term and long-term consequences. A lawyer can assess whether accepting the discharge is in your best interest or if fighting the charge is a better strategy.
