• The discharge is a fairly rare sentence in criminal law and is generally reserved for those particular situations which might warrant a discharge; either an absolute discharge - one with no conditions; or a conditional discharge.
The accused had pleaded guilty or been found guilty but, nonetheless, he is deemed not to have been convicted of the offence.
It should be noted that for a discharge to be even considered by a court, a finding of guilt is necessary. There is no basis for a discharge if the accused is found to be innocent.
In some situations, there may be little or no harm to a particular victim and the conduct of the accused while criminal by definition, a trivial or unintentional crime and not a threat to society.
A discharge is unlikely if the offender had a previous conviction as only well-motivated persons ought to qualify.
Another situation may be an accused person who while found guilty of a crime which caused little or no harm or threat to society, and found himself or herself significantly adversely affected by the commission of the crime.
Some judges use discharges to make political statements on laws they believe are outdated such as, for example, the judicial attitude on the use of recreational drugs. In Sentencing Drug Offenders, the authors wrote:
"Traditionally, persons found guilty of possession of small quantities of cannabis products could reasonably expect to receive an absolute or conditional discharge, particularly if they were first offenders."
Canada's Criminal Code or other statutes which described offenses, may specifically provide for minimum penalties for specified offenses such as, for example, impaired driving. In these cases, discharges are not available.
The 2008 edition of Canada’s Criminal Code states:
“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....”
To ensure that judges some flexibility in the use of this extraordinary sentence, a discharge may be an absolute discharge or a conditional discharge.
Absolute discharges are infrequent. Most discharges are conditional.
In any event, the granting or not of a discharge, absolute or conditional, is a matter of considerable judicial discretion and might even be available in the case of assault which resulted in serious bodily harm.
In R v Knowlton, Judge LeGrandeur of the Alberta Provincial Court granted a conditional discharge even though the accused:
“... slapped (his spouse) and then pushed her down onto the floor where he kicked her in the face.”
LeGrandeur then adopted these words:
“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. (T)he jurisdiction should be used sparingly. It is to be borne in mind that one of the strongest deterrence of criminal activity, particularly in the case of those who have no records, is the acquisition of a criminal record.
"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.... (S)ome factors to be considered in deciding whether discharge, absolute or conditional, will be granted: nature of the offence - the more serious the offence, the less frequent would be the use of a discharge in sentencing; the prevalence of the particular offence; whether the offence was for the purpose of the accused making personal gain; the value of the property destroyed - if the offence relates to property; whether the crime was a result of impulse or calculation; (and) whether the circumstance of the offence are such that the public would have a particular interest in being aware of the accused’s conviction.”
As stated in Proulx, the significant benefit of a discharge is that the accused will have no record of the conviction or, in other words, no criminal record although the police and the courthouse keeps a record of the discharge so that in the event of a future conviction, information regarding the previous discharge will be made available to the court. A discharge, whether absolute or conditional, might also prove significantly relevant in subsequent or ongoing immigration proceedings.
So solid is a discharge that if the Crown ever tried to reopen criminal proceedings against the person so discharged, he/she could raise and successfully plead and shield themselves using autrefois acquit.
• Also a term used in bankruptcy law referring to a bankrupt who has been released from the terms or conditions set out in his or her bankruptcy order; the common term, a discharged bankrupt, is an oxymoron. Once discharged, a person is no longer a bankrupt.
- Armstrong, A. and others, Sentencing Drug Offenders (Toronto: Canada Law Book, 2008), page 4-8.
- Gold, A., "Criminal Procedure", part of Halsbury's Laws of Canada, First Edition (Toronto: LexisNexis, 2007), page 663-667.
- Ruby, C. and others, Sentencing, 7th Edition (Toronto: LexisNexis, 2008).
- Criminal Code of Canada, 1985 Revised Statutes of Canada Chapter C-46, published at canlii.com/ca/sta/c-46/, §730.
- R v Fallofield 13 CCC 2d 450 (BCCA, 1973)
- R v Knowlton, 2005 ABPC 29, published at canlii.org/en/ab/abpc/doc/2005/2005abpc29/2005abpc29.html