When facing criminal charges in Alberta, one of the goals is often to avoid a criminal record. A conditional discharge or absolute discharge is a sentencing outcome where an accused individual either pleads guilty or is found guilty, but the judge chooses to discharge the accused of the offence. In other words, the judge chooses not to enter a formal conviction.
What Is an Absolute Discharge?
If an accused individual wishes to receive an absolute discharge, he or she must first enter a plea of guilty to the offence(s). Once the guilty plea has been accepted by the Court, the accused may request an absolute discharge.
If granted, the accused will not have a criminal record for the offence. Following the sentencing hearing, the individual is permitted to resume daily life without court-imposed conditions or formal rules.
What Is a Conditional Discharge?
Like an absolute discharge, an accused must first enter a guilty plea before requesting a conditional discharge. If granted, the accused will not have a criminal record for the offence, provided they comply with court-imposed conditions for a fixed period of time.
Common conditions include:
- Keeping the peace and being of good behaviour
- Reporting to a probation officer
- Attending counselling
- Having no contact with the victim
Eligibility for a Discharge
Certain offences are not eligible for a conditional or absolute discharge. Section 730 of the Criminal Code of Canada sets out the requirements that must be met for eligibility.
First, the accused must not plead guilty or be found guilty of an offence that carries a minimum punishment prescribed by law. For example, sexual interference under section 151 of the Criminal Code carries a mandatory minimum term of imprisonment.
Second, the accused must not plead guilty or be found guilty of an offence that carries a maximum term of imprisonment of fourteen years or life. For example, aggravated assault under section 268(2) of the Criminal Code carries a maximum penalty of fourteen years imprisonment.
If eligible, the accused must convince the Court that a discharge is in their best interests and not contrary to the public interest.
Best Interests of the Accused
When requesting a conditional discharge or absolute discharge, the accused may wish to raise the following considerations:
- Immigration Status: A conviction may jeopardize the status of temporary or permanent residents and could result in deportation.
- Employment: A conviction can significantly impact current and future employment opportunities, especially where criminal record checks are required.
- Reputation in the Community: The accused may wish to advise the Court of the impact a conviction would have on their standing in the community.
Not Contrary to the Public Interest
In Alberta, judges consider the Macfarlane factors when determining whether a conditional discharge or absolute discharge is appropriate. These factors include:
- The nature of the offence
- The prevalence of the offence
- Whether the accused stood to gain personally at the expense of others
- For property offences, the value of the property
- Whether the offence was impulsive or pre-planned
- Whether the offence should be a matter of public record
These factors stem from the Alberta Court of Appeal decision in R v MacFarlane, 1976 AltaSCAD 6, 55 AR 222.
Conclusion
After assessing eligibility and the surrounding circumstances, the Court may choose to grant a conditional discharge or absolute discharge.
Because a discharge is not guaranteed, it is strongly encouraged to retain an experienced criminal defence lawyer to assist in persuading the Court that a discharge is appropriate in your case.
