A person who is found guilty or pleads guilty to an offence may receive a conditional discharge or an absolute discharge. In both cases, no conviction is registered for the offence and the person doesn’t have a criminal record; however, if you are sentenced to a conditional discharge, you must follow certain conditions set out by the judge in a probation order.
Canada’s Criminal Code s. 730(1) defines the circumstances under which a Court may sentence a person to an absolute or conditional discharge, as follows.
Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
As determined during sentencing, the probation order can be in force from one to three years for a conditional discharge. But, if the person fails to adhere to the conditions in the probation order, the conditional discharge may be withdrawn and they may be convicted of the original offence which led to the discharge.
A conditional discharge will stay on the person’s criminal record for three years, compared to an absolute discharge which only stays on your record for one year. During the probation period, the conditional discharge may appear during pre-screening for a job, at a border crossing into the U.S. and in other circumstances. And, because the conditional discharge is an admission of guilt for a criminal charge, U.S. Customs will likely refuse you entry to United States if they perform a record check when you’re crossing the border.
If the person follows the conditions of their discharge, the conditional discharge will be purged from their CPIC (Canadian Police Information Centre) record after three years.
Here are several cases where an Ontario judge sentenced the accused person to a conditional discharge. Note that they all involved circumstances where a judge found that it would not be in the public interest to give the offender a criminal record and require them to serve jail time.
In R. v. Fantinato (2018), a 21-year-old woman received a conditional discharge after she initiated a barroom fight in the City of Oshawa. The young woman, Ms. Fantinato, was charged with Assault causing Bodily Harm after she threw a glass of beer at another women causing an injury to the victim’s forehead (which necessitated four stitches). Ms. Fantinato threw the drink after she got into an argument with the other woman and was asked to leave the bar; however, she really intended to only douse the other woman with beer but the glass slipped out of her hand. The prosecutor sought a conviction and a two-year suspended sentence. However, the judge held that a conditional discharge with a 2-year probation period is most appropriate because the offender did not have a criminal record; she did not intend to injure the other woman; and she was actively taking steps to deal with addiction and mental health issues.
R. v. Loder (2019) involves a young man who was charged with unlawful possession of a controlled substance after he was stopped by police and seen trying to dispose of a 2-gram vial of Fentanyl. The Prosecution sought a 30-day jail sentence, but the judge agreed with the defence that a conditional discharge is an appropriate sentence in this case. Sentencing was based on the fact that Mr. Loder doesn’t have a criminal record and also because his addiction to opiates and cocaine arose after he was prescribed opiates for chronic pain resulting from a serious back injury he suffered in a car accident and then five years later, he struggled with abdominal pain associated with a diagnosis for kidney disease. At the time of sentencing, the offender was attending a methadone program and had just been accepted into a post-graduate program at an Ontario college. Given the circumstances that led to Mr. Loder’s addiction, his serious health issues and the steps he had taken to rehabilitate himself, the judge found a conditional discharge with 1-year probation is a just sentence (whereas, a custodial sentence would be entirely disproportionate).
In R. v. Allaudin (2019), a 23-year-old man was charged with dangerous driving, mischief and conspiracy to commit both acts, in connection with a motorcycle ride that he organised on Toronto streets and which involved more that 100 motorcyclists. Some of the riders were engaged in stunt driving and dangerous driving, and groups of riders caused several complete traffic stoppages (where the riders performed stunts for a brief period) on series 400 highways around the City of Toronto. The judge in Allaudin found that only the charge of mischief could be proven and this charge was in connection with Mr. Allaudin’s role in organizing and participating in the traffic stoppages. And, the judge found that, although Mr. Allaudin engaged in risky driving, such as wheelies and driving without hands, his actions did not meet the threshold of ‘dangerous driving’. Also, the defendant’s actions did not result in any injuries or property damage, and only briefly interfered with other motorists’ use of the highways. The judge sentenced the defendant to a conditional discharge with a 12-month probation period, and one of the conditions of his sentence was that he enrol in a motorcycle rider safety training program.
A conditional discharge is a favourable outcome for sentencing in many cases; however, during the three-year period it appears on your criminal record, a conditional discharge can make it difficult to gain employment and volunteer positions, and also to travel to the United States.
Further, even after your probation period has expired for your conditional discharge, you may still have difficulty getting a job, if employers become aware of your conditional discharge when doing a police records check. Despite your lack of criminal record, a conditional discharge indicates that you were found guilty of a crime and can create a negative impression for a prospective employer and they may choose not to hire you. Your conditional discharge may appear indefinitely on record checks because police records are not only held at the federal level on the CPIC database, but the courts and arresting police also store records of your case. This is why it’s a good idea to request that police destroy your complete file, including your fingerprints and court information.
If you have been charged with a criminal offence or have concerns that your conditional discharge has not been purged from police records, get help from an experienced Toronto criminal defence lawyer at Yoannou and Associates.