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What Is A Conditional Discharge?

In its essence, a conditional discharge is not a criminal conviction.  It is not a criminal record in Ontario or elsewhere in Canada.  The issue of criminal records in Canada can however, be a tricky discussion.  There have been many cases, some more high profile than others of individuals who have won their case or had their charges dropped only to be discriminated against because of a so called “record”.  The notion of what a record is Ontario or Canada is vague and can be defined in many ways.  For example, are you talking about a record of arrest, a record of conviction, a record of withdrawals, a record of police involvement such as an occurrence report/record?  The list goes on and on.  The stories that we read about in the newspaper and that even the criminal lawyers in Ontario talk about make this a very murky topic.  For example, there are cases of individuals who have had their charges dropped but due to the nature of the charges, are not being hired say in a day care due to a vulnerable sector screen that shows an entry.  The topic of records will be discussed in another post – no one knows for sure what Big Brother keeps; but to get back on point and answer this post, a conditional discharge does not constitute to be a criminal record in Canada.    Whoever gets a conditional discharge is not convicted.  They are not labeled as a criminal in Canada.  Their records supposedly are as clean as anyone else’s record in Ontario or Canada.  However, there is a finding of guilt that is imposed with a conditional discharge.  The United States of America does not recognize conditional discharges as non-criminal records.  According to their rules, if someone is found guilty of a criminal offence, then that person should be labeled to be a criminal.  In Canada however, while we can say someone is guilty, the Judge can still decide to not hand down a permanent criminal record on the offender by sentencing the person with a conditional discharge. It’s a second chance.   A conditional discharge stays on the individual’s record for 3 years and then it is removed.  With a conditional discharge, probation is usually attached to the sentence and other terms such as keeping the peace and being of good behavior, a weapons prohibition as well as no contact orders.  Community service is also an option.    In addition, a DNA sample can be ordered with a conditional discharge.  A DNA sample is stored on the DNA databank which is a separate databank and samples are held there for life.  So as you can see, while a conditional discharge is not considered to be a criminal record, there are many restrictions placed on one’s liberty and lifelong consequences (i.e., DNA) that go along with it.  Also, in my experience, and based on what my own eyes have seen, a conditional discharge sometimes appears on ones record even after the 3 years have elapsed but only for Police and Crown Attorney purposes in the disclosure (and for sentencing) – so they know that you got one before (they have a record of it).  But not always.  In some cases my clients tell me they received a discharge years ago and there is no record of it that the police or Crown Attorneys are aware of.  You may be thinking why on earth would I accept a conditional discharge?  Well in many many of my cases, I encourage my clients to accept a conditional discharge if I can secure it.  A discharge keeps your criminal record clean and in most cases avoids really the life altering consequences that would come from a permanent record (i.e., you can still be a lawyer or doctor with a discharge – in fact, a convicted murderer recently was called to the Bar of Ontario as a lawyer so go figure). In many cases where I encouraged a discharge, the facts of the case made it a difficult one to beat at trial and a discharge was a no brainer and avoided all unnecessary risks. 

If you are contemplating accepting a conditional discharge for a criminal court matter in Ontario or would like to speak to me about your case, please call for a free confidential consultation at 905-789-9007 or email me at avi@baratzlaw.com

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