Discharges

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 95742)

General Principles

The granting of a discharge "is a discretionary order based on the weighing and assessing of many factors, including the principles of sentencing and the public interest."[1] The order is only available for offences where the maximum penalty is less than 14 years.[2]

The Criminal Codes describes the discharge as:

Conditional and absolute discharge

730 (1) 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 made under subsection 731(2) [probation order when discharge ordered].

Period for which appearance notice, etc., continues in force

(2) Subject to Part XVI [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)], if an accused who has not been taken into custody or who has been released from custody under any provision of that Part pleads guilty to or is found guilty of an offence but is not convicted, the appearance notice, summons, undertaking or release order issued to, given or entered into by the accused continues in force, subject to its terms, until a disposition in respect of the accused is made under subsection (1) [order of discharge] unless, at the time the accused pleads guilty or is found guilty, the court, judge or justice orders that the accused be taken into custody pending such a disposition.
[omitted (3)]

Where person bound by probation order convicted of offence

(4) Where an offender who is bound by the conditions of a probation order made at a time when the offender was directed to be discharged under this section is convicted of an offence, including an offence under section 733.1 [breach of probation order], the court that made the probation order may, in addition to or in lieu of exercising its authority under subsection 732.2(5) [vary or cancel probation order on breach conviction], at any time when it may take action under that subsection, revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time of discharge, and no appeal lies from a conviction under this subsection where an appeal was taken from the order directing that the offender be discharged.
R.S., 1985, c. C-46, s. 730; 1995, c. 22, s. 6; 1997, c. 18, s. 141; 2003, c. 21, s. 17; 2019, c. 25, s. 296.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 730(1), (2) and (4)


Defined terms: "accused" (s. 716)

Purpose

The discharge was enacted in 1972 to give the courts the power to "relieve against both the fact and stigma of a criminal conviction."[3]

The discharge can serve as both a "carrot" and "stick" to motivate rehabilitation.[4]

  1. ↑ R v Chatur, 2012 BCCA 163 (CanLII), [2012] BCJ No 759 (CA), per D Smith JA
    R v Sanchez-Pino, 1973 CanLII 794 (ON CA), 11 CCC (2d) 53, per Arnup JA
  2. ↑ see Offences by Penalty
  3. ↑ Manson, The Law of Sentencing, at p. 211 cited in R v Donovan, 2013 NSPC 83 (CanLII), per Whalen J, at para 27
  4. ↑ R v Wallner, 1988 ABCA 308 (CanLII), per Stevenson J, at para 8
    R v DED, 2007 ABQB 508 (CanLII), per Rooke ACJ, at para 78

Effect

Section 730 states:

730
[omitted (1) and (2)]

Effect of discharge

(3) Where a court directs under subsection (1) [order of discharge] that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence except that

(a) the offender may appeal from the determination of guilt as if it were a conviction in respect of the offence;
(b) the Attorney General and, in the case of summary conviction proceedings, the informant or the informant’s agent may appeal from the decision of the court not to convict the offender of the offence as if that decision were a judgment or verdict of acquittal of the offence or a dismissal of the information against the offender; and
(c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.

[omitted (4)]
R.S., 1985, c. C-46, s. 730; 1995, c. 22, s. 6; 1997, c. 18, s. 141; 2003, c. 21, s. 17; 2019, c. 25, s. 296.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 730(3)

The discharge is not a conviction but rather the offence is discharged absolutely or conditionally with probation. In cannot be paired with a fine or jail.[1] The end result is that there is no criminal record.[2] No record may be disclosed to any person by a federal agency, except for the purpose of verifying fingerprints, without the consent of the Solicitor General after 1 year for a absolute discharge or 3 years for a conditional discharge.[3]

Absolute Discharge

Where an absolute discharge has been granted the record of the offence cannot be disclosed without the approval of the Minister of Public Safety.[4]

  1. ↑ R v Hayden, 2002 NSCA 7 (CanLII), 627 APR 397, per Oland JA
  2. ↑ R v Burke, 1996 CanLII 11083 (NL CA), 108 CCC (3d) 360, per Gushue CJ
    R v Montgrand, 2008 SKCA 50 (CanLII), 310 Sask R 41, per Wilkinson JA
    s. 730(3)
  3. ↑ s. 6.1 of the Criminal Records Act
  4. ↑ R v Montesano, 2019 ONCA 194 (CanLII), per curiam, at paras 9to 11("Section 6.1(1)(a) of the CRA precludes the disclosure not only of the record, but also of the existence and fact of an absolute discharge beyond one year following its imposition, unless the prior approval of the Minister of Public Safety and Emergency Preparedness is obtained.")

Requirements

An offence punishable by less than 14 years and without minimum sentence, the offender may apply to the court for a "conditional discharge" if it is in the "best interests of the accused" and "not contrary to the public interest."[1]

  1. ↑ R v Gallon, 2006 NBCA 31 (CanLII), 771 APR 317, per Deschênes JA
    R v Elsharawy, 1997 CanLII 14708 (NL CA), 119 CCC (3d) 565, per Green JA, at para 3

Best Interests of Offender

The best interests of the offender means that deterrence is not relevant nor is rehabilitation beyond what can be achieved by a probation order. Lastly, they should have such character that a conviction will have "significant repercussions."[1]

It is wrong to assume it is always be in the best interest of the offender to have a discharge. This requirement has been interpreted as requiring that (1) specific deterrence is of "no concern" and (2) the accused is of good character.[2]

Generally speaking the effect of the criminal record would be disproportionate to the offence, such as where the offender cannot pursue their chosen profession[3], education would be affected[4], etc. The reason for discharge cannot be mere speculation.[5]

The first factor of a discharge presupposes that the offender is of good character and so is without a prior criminal record.[6]

It is generally preferred or sometimes necessary that the court have evidence of the consequence of a criminal record to support a discharge application.[7]

  1. ↑ R v Sanchez-Pino, 1973 CanLII 794 (ON CA), 11 CCC (2d) 53, per Arnup JA
  2. ↑ Manson, The Law of Sentencing, at p. 211 cited in R v Donovan, 2013 NSPC 83 (CanLII), per Whalen J, at para 27
  3. ↑ R v Carroll, 1995 CanLII 1123 (BC CA), 38 CR (4th) 238, per Donald JA
  4. ↑ R v Abouabdellah, 1996 CanLII 6502 (QC CA), 109 CCC (3d) 477, per curiam
  5. ↑ R v Roberts, 2004 SKCA 153 (CanLII), 190 CCC (3d) 504, per curiam
  6. ↑ R v Elsharawy, 1997 CanLII 14708 (NL CA), 119 CCC (3d) 565, per Green JA, at para 3
  7. ↑ R v Relph, 1991 CanLII 1236 (BC CA), [1991] BCJ No 298, per Locke JA at 12

Not Contrary to Public Interest

A discharge does not have to be in the public interest, it simply must not be contrary to the public interest.[1] Accordingly, it is not necessary that the accused prove that it is in the public interest.[2]

The concern of this inquiry is whether the consequences of the conviction (either real or potential) upon the particular individual outweighs the value of the stigma.[3]

The "public interest" includes "a consideration of the principle of general deterrence with attention being paid to the gravity of the offence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcement of the criminal law."[4]

The factors to determine the "public interest" and the weight "will vary depending on the circumstances of the offence and of the offender."[5]

The second factor considers:[6]

  • the gravity of the offence;
  • the frequency/prevalence of the offence in the community
  • the public attitudes to the offence
  • amount of planning of the offence
  • value of property (if property-related offence)
  • whether there was personal gain from the offence
  • the effect on the public confidence in the law

It is not necessary that the offence be trivial to not be contrary to the public interest.[7]

The more serious the offence the less likely a discharge will be appropriate.[8]

Unusual circumstances of a particular offender may warrant a discharge where it would not otherwise be warranted.[9]

It is an error of law to confuse "public interest" with "expressions of public concern."[10]

  1. ↑ R v D'Eon, 2011 NSSC 330 (CanLII), 975 APR 128, per LeBlanc J, at paras 18 to 25
  2. ↑ R v Sellars, 2013 NSCA 129 (CanLII), NSJ No 597, per Beveridge JA, at para 27
  3. ↑ Manson, The Law of Sentencing, at p. 211
  4. ↑ R v Elsharawy, 1997 CanLII 14708 (NL CA), [1997] NJ No 249, per Green JA, at para 3
  5. ↑ Sellars, supra, at para 37
  6. ↑ See R v Fallofield, 1973 CanLII 1412 (BC CA), 13 CCC (2d) 450 (BCCA), per curiam
    R v Waters, 1990 CanLII 7561 (SK QB), 54 CCC (3d) 40, per Wedge JA
    R v MacFarlane, 1976 ALTASCAD 6 (CanLII), (1976) 3 Alta LR (2d) 341, per curiam
    R v Sanchez-Pino, 1973 CanLII 794 (ON CA), 11 CCC (2d) 53, per Arnup JA, at paras 17 to 19 ("must consider all of the circumstances of the accused, and the nature and circumstances of the offence, against the background of proper law enforcement in the community, and the general criteria")
  7. ↑ Sellars, supra, at paras 34 and 38
    Snachez-Pino, supra, at para 18
  8. ↑ Sanchez-Pino, supra at para 18
  9. ↑ Sanchez-Pino, supra at para 18
  10. ↑ R v Wallner, 1988 ABCA 308 (CanLII), per J, at para 10

Where applied

Cases for a variety of offences have been considered:

  • possession of a weapon for a dangerous purpose (s.88)[1]
  • break and enter[2]
  • possession of marijuana (4(1))[3]
  • theft under $5,000 [4]

Factors such as the accused's immigration status are valid considerations but are not determinative.[5]

It is not prohibited to grant a discharge where a prior discharge has already been granted. [6] Nor is it prohibited to grant a discharge where a prior record exists. [7] Nevertheless the granting of a discharge in these cases is exceptional.

It should not be order solely because of adverse immigration consequences where it would otherwise be inappropriate.[8]

  1. ↑ R v Chalifoux, 1995 ABCA 444 (CanLII), 102 WAC 348, per Fraser CJ - denied
  2. ↑ R v Kadotchnikov, 2002 SKPC 112 (CanLII), 4 WWR 749, per Whelan J - CD granted
  3. ↑ R v Lail, 2007 ABPC 117 (CanLII), per AJ Brown J - granted
  4. ↑ R v Pepper, 2005 ABPC 294 (CanLII), per AJ Brown J - granted
  5. ↑ R v Wisniewski, 2002 MBCA 93 (CanLII), 6 CR (6th) 192, per Steel JA
  6. ↑ R v Tan, 1974 CanLII 1608 (BC CA), 22 CCC (2d) 184 (BCCA), per Branca JA
  7. ↑ eg: R c Lasania, 2010 QCCS 3446 (CanLII), per Cohen J
  8. ↑ see R v Melo, 1975 CanLII 1299 (ON CA), 26 CCC (2d) 510 (ONCA), per Arnup JA
    cf. R v Abouabedellah, 1996 CanLII 6502 (QC CA), 109 CCC (3d) 477, per curiam

Absolute vs Conditional

An absolute discharge order discharges the offence without any additional requirements of probation. It is usually granted in the cases of lesser seriousness of offences or where the personal circumstances are exceptional.[1]

  1. ↑ eg. R v Day, 2011 CanLII 8588 (NL PC), per Gorman J

Offences of violence

Without a prior record, a Court will grant a discharge for common assault. [1] However, it should only be given in extraordinary circumstances.[2] Assault causing bodily harm can be available for discharges in only limited circumstances. [3]

  1. ↑ R v Bartlett, 2008 CanLII 1535 (ON SC), [2008] OJ No 193, per Hill J
    R v Stevens, 2009 NSPC 46 (CanLII), 895 APR 314, per Ross J
    R v Munro, [1994] NSJ No 693 (S.C.)(*no CanLII links)
    R v Boyle, 1990 CanLII 4078 (NS SC), 100 NSR (2d) 39, [1990] NSJ No 371 (SCTD), per Kelly J
    R v Rhynold, 1993 CanLII 3218 (NS CA), [1993] NSJ No 192 (CA), per Jones JA
    R v Sumyk, 2010 ABQB 217 (CanLII), per Burrows J
    R v Teclesenbet, 2009 ABCA 389 (CanLII), 469 AR 193, per McDonald JA - CD denied for domestic assault causing bodily harm
  2. ↑ R v MacFarlane, 1976 ALTASCAD 6 (CanLII), 55 AR 222 (ABCA), per curiam
  3. ↑ Successful:
    R v Sowden, 2011 ONCJ 244 (CanLII), per Hearn J
    R v Batt, 2010 CanLII 18251 (NL PC), [2010] NJ No 137 (P.C.), per Gorman J -- Joint Recommendation
    R v Morgan, [2003] NJ No 341 (S.C.)(*no CanLII links) -- Joint Recommendation
    unsuccessful:
    R v Gulpin, 1975 CanLII 1410 (ON CA), CRNS 363 (ONCA)
    R v Wood, 1975 CanLII 1410 (ON CA), 24 CCC (2d) 79 (ONCA), per Jessup JA
    R v Pynn, 2011 CanLII 6161 (NL PC), per Gorman J -- conditional sentence
    R v Sullivan, 2011 CanLII 144 (NL PC), [2011] NJ No 4 (P.C.), per Gorman J -- probation

Curative Discharges

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