Discharges

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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 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).
Period for which appearance notice, etc., continues in force
(2) Subject to Part XVI, where an accused who has not been taken into custody or who has been released from custody under or by virtue of any provision of Part XVI pleads guilty of or is found guilty of an offence but is not convicted, the appearance notice, promise to appear, summons, undertaking or recognizance issued to or 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) 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.
...
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, the court that made the probation order may, in addition to or in lieu of exercising its authority under subsection 732.2(5), 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.


CCC

The discharge was enacted in 1972 to give the courts the power to "relieve against both the fact and stigma of a criminal conviction."[2]

  1. R v Chatur, 2012 BCCA 163 (CanLII), [2012] BCJ No. 759 (C.A.)
  2. Manson, The Law of Sentencing at p. 211 cited in R v Donovan, 2013 NSPC 83 (CanLII) at para 27

Effect

Section 730 states:

730...
Effect of discharge
(3) Where a court directs under subsection (1) 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.

...
R.S., 1985, c. C-46, s. 730; 1995, c. 22, s. 6; 1997, c. 18, s. 141; 2003, c. 21, s. 17.


CCC

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]

  1. R v Hayden, 2002 NSCA 7 (CanLII)
  2. R v Burke, 1996 CanLII 11083 (NL CA)
    R v Montgrand, 2008 SKCA 50 (CanLII)
    s. 730(3)
  3. s. 6.1 of the Criminal Records Act

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)
    R v Elsharawy (1997), 119 CCC (3d) 565, 1997 CanLII 14708 (Nfld. C.A.) at para 3

Best Interests of Offender

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.[1]

Generally speaking the effect of the criminal record would be disproportionate to the offence, such as where the offender cannot pursue their chosen profession[2], education would be affected[3], etc. The reason for discharge cannot be mere speculation.[4]

The first factor of a discharge presupposes that the offender is of good character and so is without a prior criminal record.[5]

It is generally preferred or sometimes necessary that the court have evidence of the consequence of a criminal record to support a discharge application.[6]

  1. Manson, The Law of Sentencing at p. 211 cited in R v Donovan, 2013 NSPC 83 at para 27
  2. R v Carroll, 1995 CanLII 1123 (BC CA)
  3. R v Abouabdellah, 1996 CanLII 6502 (QC CA)
  4. R v Roberts, 2004 SKCA 153 (CanLII)
  5. R v Elsharawy 1997 CanLII 14708 (NL CA), (1997), 119 CCC (3d) 565 (N.L.C.A.) at para 3
  6. R v Relph [1991] BCJ No. 298 (BCCA) 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]

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.[2]

The second factor considers:[3]

  • 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
  1. R v D'Eon, 2011 NSSC 330 (CanLII) at para 18 to 25
  2. Manson, The Law of Sentencing at p. 211
  3. See R v Fallofield (1973), 13 CCC (2d) 450 (BCCA)
    R v Waters, 1990 CanLII 7561 (SK QB), (1990), 54 CCC (3d) 40 (Sask. QB)
    R v MacFarlane, 1976 ALTASCAD 6 (CanLII), (1976) 3 Alta LR (2d) 341

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) - denied
  2. R v Kadotchnikov, 2002 SKPC 112 (CanLII) - CD granted
  3. R v Lail, 2007 ABPC 117 (CanLII) - granted
  4. R v Pepper, 2005 ABPC 294 (CanLII) - granted
  5. R v Wisniewski, 2002 MBCA 93 (CanLII)
  6. R v Tan (1974), 22 CCC (2d) 184 (BCCA)(*no link)
  7. eg: R c Lasania, 2010 QCCS 3446 (CanLII)
  8. see R v Melo (1975), 26 C.C.C. (2d) 510 ONCA
    c.f. Abouabedellah (1996), 1996 CanLII 6502 (QC CA), 109 C.C.C. (3d) 477 (Que. C.A.)

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)

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] O.J. No. 193
    R v Stevens, 2009 NSPC 46 (CanLII)
    R v Munro, [1994] NSJ No. 693 (S.C.)(*no link)
    R v Boyle (1990), 100 N.S.R. (2d) 39, 1990 CanLII 4078 (NS SC), [1990] NSJ No. 371 (S.C.T.D.)
    R v Rhynold, 1993 CanLII 3218 (NS CA), [1993] NSJ No. 192 (C.A.)
    R v Sumyk, 2010 ABQB 217 (CanLII)
    R v Teclesenbet, 2009 ABCA 389 (CanLII) - CD denied for domestic assault causing bodily harm
  2. R v MacFarlane (1976), 55 AR 222 (ABCA), 1976 ALTASCAD 6 (CanLII)
  3. Successful:
    R v Sowden, 2011 ONCJ 244 (CanLII)
    R v Batt, 2010 CanLII 18251 (NL PC), [2010] N.J. No. 137 (P.C.) -- Joint Recommendation
    R v Morgan, [2003] N.J. No. 341 (S.C.) -- Joint Recommendation
    unsuccessful:
    R v Gulpin, (1975), 36 CRNS 363 (ONCA)(*no link)
    R v Wood, (1975), 24 CCC (2d) 79 (ONCA)(*no link)
    R v Pynn, 2011 CanLII 6161 (NL PC) -- conditional sentence
    R v Sullivan, 2011 CanLII 144 (NL PC), [2011] N.J. No. 4 (P.C.) -- probation

Curative Discharges

Digests