Conditional or Absolute Discharges
Whether you are convicted of a criminal offence or have pled guilty to an offence, you will have a sentencing hearing. Regardless of how you get there, a conditional or absolute discharge may be a sentence available to you.
An absolute discharge differs from a conditional discharge in only one material way: a conditional discharge requires you to comply with conditions, such as probation. An absolute discharge is absolute because there are no conditions imposed on you.
Conditional or not, receiving a discharge means you will not have a criminal record.*
Receiving a discharge
Although a discharge is a possible outcome, the judge ultimately decides what sentence you will receive. The judge may impose a harsher penalty than what your lawyer or the Crown prosecutor sought. The judge decides on the sentence to impose after hearing submissions from the Crown and from your lawyer.
A judge will grant a discharge only if they determine it to be in your interest and not contrary to the public’s interest. In Alberta, the following factors are considered by the sentencing judge before granting a discharge:
- the nature of the offence;
- the prevalence of the particular offence in the community;
- whether you stood to gain personally from the offence;
- the value of the property stolen;
- whether the offence was committed in impulse or calculated; and
- whether the commission of the offence should be a matter of record.
Ultimately, it is impossible for your lawyer to guarantee a discharge as the outcome of your case because the decision making power always rests with the judge at the sentencing hearing.
There are a variety of ways for the criminal justice system to impose penalties on individuals without imposing a criminal record. Aside from a discharge, a peace bond, alternative measures program, or other diversionary measures are possible outcomes that do not involve a criminal record. However, each of these options require consent from the Crown prosecutor. Where that is not provided, you have three options remaining to avoid a criminal record.
1. Plead Guilty
You may plead guilty to the criminal charge. Doing so would mean scheduling a sentencing hearing. At sentencing, you or your lawyer can make submissions on what sentence you ought to receive. Similarly, the Crown prosecutor will make their submissions for what sentence you ought to receive. It may be that the Crown is seeking the same or a harsher penalty.
After considering what is in your best interest and whether it is contrary to the public interest, the judge may impose a conditional or absolute discharge. This would mean you avoid a criminal record. However, a judge may also impose a harsher penalty, which may involve a criminal record, tougher conditions, a lengthier term of probation, and could even involve jail time.
One benefit of pleading guilty is that you can say that you are remorseful; are voluntarily taking responsibility and entering an early guilty plea; and are saving precious court resources by not taking the matter to trial. These admissions can increase your chances of receiving a discharge. Your lawyer may also be able to schedule the hearing in front a judge that may be more willing to give you a discharge.
Another benefit for some individuals is that pleading guilty allows you to move on sooner.
A negative to pleading guilty is that you must be willing to take responsibility for the alleged crime. You cannot plead guilty if you maintain that you are innocent of any wrongdoing. Furthermore, pleading guilty means you give up your right to a trial.
2. Seek an Early Case Resolution with the Crown
If you are prepared to admit to having committed the offence, you can decide to have your lawyer negotiate with the Crown prosecutor about a potential early case resolution (“ECR”). This is often colloquially termed a “plea deal” and it involves agreeing with the Crown on what sentence you should receive.
If the Crown prosecutor offers an ECR, you have the option of accepting the offer. If you accept the ECR, you would be required to plead guilty in court. Then, at the sentencing hearing, you, your lawyer and the Crown prosecutor will provide a joint submission on what sentence you ought to receive.
An ECR has many of the same benefits as pleading guilty but has the added benefit of involving a joint submission. The Supreme Court of Canada has instructed sentencing judges to give deference to joint submissions. Therefore, the judge is far more likely to impose the sentence sought as part of the joint submissions.
A negative to an ECR is that the Crown prosecutor may not entertain a favourable sentencing position and may not be agreeable to seeking a discharge. If this is the case, accepting the ECR means not receiving a discharge and receiving a criminal record.
3. Plead Not Guilty
If you plead not guilty, you would be choosing to take your matter to trial. At trial, the Crown would be required to prove the essential elements of the charge beyond reasonable doubt. You or your lawyer will be able to provide evidence to support of any defences available to you. Your testimony is considered evidence that may be necessary for making out a defence.
A benefit of taking your matter to trial is simply that you may be acquitted, meaning you are found not guilty. The Crown prosecutor may not be able to prove its case, for a variety of reasons, and this would leave you with no criminal record and you will face no penalties.
However, it is also possible that you are found guilty and are convicted. If this occurs, the matter will proceed to sentencing. At sentencing, you would still be able to make submissions on what sentence you ought to receive and take the position that a discharge is the appropriate sentence. However, your chances of receiving a favourable sentence is reduced if you were found guilty at trial as opposed to having pled guilty to the offence.
In short, a negative of going to trial is the uncertainty of the outcome and its negative impact on your sentencing, should you be convicted.
At Muenz Criminal Law, we recognize that this is a difficult choice to make in your case, no matter what charges you face. Our lawyers are here to discuss with you the choices available to you and provide advice on how to proceed.
Ultimately, the choice is yours and there is no guarantee that any of these choices will result in a favourable outcome of your criminal case. What we can guarantee is that, no matter what choice you make, we will strongly advocate for the best possible outcome.
Author: Thomas Scholten
*Note: this article describes one way that a criminal record can be avoided. However, the term ‘criminal record’ is used here as shorthand to refer to a conviction on one’s record. The Canadian Police Information Centre (“CPIC”) will still have a notation on your record of the charge and its outcome, even if that outcome was not a conviction. When an employer conducts a regular criminal record check, that will only reveal convictions on your record.