Duhaime's Law Dictionary


Absolute Discharge Definition:

A sentence of a person guilty of a crime in which the accused is deemed to have not been convicted. In bankruptcy law, to be fully absolved of former debts and the status of bankrupt.

Related Terms: Discharge, Conditional Discharge

A legal term with independent significance in:

Absolute Discharge  - Criminal law

An absolute discharge differs from a conditional discharge in that the full benefit of a discharge is immediate; there is no probation order; no "wait and see" period with respect to probationary conditions, and no consequences such as registration in an offender registry or criminal records database.

In Canada, according to the 2012 edition of the C.E.D.:

"An absolute discharge or a discharge upon conditions prescribed in a probation order may be ordered 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 14 years or for life. The court must consider a discharge to be "in the best interests of the accused and not contrary to the public interest".

In R v Conway, Justice Armstrong of the Ontario Court of Appeal used these words (in regards to the Canadian Criminal Code):

"... absolute discharges are only available where an accused is not a significant threat to the safety of the public."

In R v McFarlane, the Alberta Court of Appeal (then known as the Alberta Supreme Court, Appellate Division) relying on Regina v. Fallofield, provided a very helpful summary of the law on the availability of an absolute discharge to a sentencing judge:

"There are two conditions precedent to the exercise of the jurisdiction to grant a discharge, either conditionally or absolutely.

"The first is that the court may consider that it is in the best interests of the accused. From that point of view, one may well have to consider whether a short term of imprisonment and the supervision of probation may in the long run be in the accused's best interests as deterring him from further criminal activity and removing him, at least for a time, from the very environment which may have generated such activity; but short of this, in almost every case a discharge would certainly be in the interests of the accused.

"The second condition precedent is that the court must consider that a grant of discharge is not contrary to the public interest. In the consideration of this aspect of the legislation, we think that it should be first said that a discharge, conditional or absolute, should not be granted routinely. We think such a discharge must not be treated as a substitute for probation and suspension of sentence.

"We are of the view further that the jurisdiction should be used sparingly. It is to be borne in mind that one of the strongest deterrents to criminal activity, particularly in the case of those who have no records, is the fear of the acquisition of a criminal record.

"In consideration of the exercise of the discretion to grant an absolute or conditional discharge, we emphasize that it is quite impossible to lay down rules which would cover the myriad of situations which may appear before a judge confronted with the task of appropriate sentence in any given case. We are of the opinion, however, that the following are some of the relevant factors which must be considered in every case.

"Firstly, there is the nature of the offence. While it is to be borne in mind that the section may be used in respect of any offence other than one for which a minimum punishment is prescribed by law or which is punishable by imprisonment for 14 years or for life, or by death, one must nevertheless be concerned with the seriousness of the offence, and it would seem appropriate that the more serious the offence, the less frequent would be the use of a discharge in sentencing. It would, for instance, be a most exceptional case where a crime involving violence would be dealt with by an order of discharge.

"Secondly, one has to consider the prevalence of the particular offence as it may exist in the community from time to time.

"Thirdly, one must consider whether an accused stood to make some personal gain at the expense of others, as distinct from some activity which might be in the nature of a prank or in respect of which his motives were other than self-interest.

"Fourthly, where the offence is relating to property, as here, the value of the property destroyed or stolen must be relevant. The theft of a ball-point pen would not ordinarily be regarded as seriously as the theft of a colour television set.

"Fifthly, we think that it is relevant to consider whether the crime was committed as a matter of impulse, and in the face of unexpected opportunity, or whether it was calculated.

"Sixthly, we think it relevant to consider whether the circumstance that an accused has committed the offence is something which should be a matter of record so that members of the public may have the opportunity of being aware of the fact that that accused had committed the offence in question. Theft from an employer would, in most cases, involving as it does a breach of trust, not warrant a discharge, as it may be thought that prospective employers should have the means of knowing something about the character of the prospective employee. Even here there may be exceptional circumstances, such as a falling-out, or a civil dispute about money which did not amount to colour of right, but which might result in the offence being in the nature of a technical one."

Absolute Discharge - Bankruptcy & Insolvency Law

Also a term of bankruptcy law; in order of absolute discharge completely relieves a bankrupt from debts incurred before the assignment into bankruptcy without the intervening step of having to comply with conditions (a conditional discharge).

An absolute discharge from bankruptcy, in addition to wiping out all debts (with some exceptions), means that the person is no longer bankrupt, the credit bureau penalty period usually commences and restriction o the bankrupt, such as being a director of a corporation, typically cease.

From the 1992 version of the Canadian bankruptcy and insolvency statute, at §172(1):

"On the hearing of an application of a bankrupt for a discharge, the court may either grant or refuse an absolute discharge or suspend the operation of the order for a specified time, or grant an order of discharge subject to any terms or conditions with respect to any earnings or income that may afterwards become due to the bankrupt or with respect to his after acquired property."

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