Difference between revisions of "Discharges"

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The discharge was enacted in 1972 to give the courts the power to "relieve against both the fact and stigma of a criminal conviction."<ref>
 
The discharge was enacted in 1972 to give the courts the power to "relieve against both the fact and stigma of a criminal conviction."<ref>
Manson, The Law of Sentencing{{atp|211}} cited in ''R v Donovan'', [http://canlii.ca/t/g0p5q  2013 NSPC 83] (CanLII){{perNSPC|Whalen J}}{{at|27}}<br>
+
Manson, The Law of Sentencing{{atp|211}} cited in ''R v Donovan'', [http://canlii.ca/t/g0p5q  2013 NSPC 83] (CanLII){{perNSPC|Whalen J}}{{atL|27|http://canlii.ca/t/g0p5q}}<br>
 
</ref>
 
</ref>
  
Line 49: Line 49:
  
 
==Requirements==
 
==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".<ref>''R v Gallon'', [http://canlii.ca/t/1mxn4 2006 NBCA 31] (CanLII){{perNBCA|Deschênes JA}}<br>
+
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".<ref>
''R v Elsharawy'' (1997), 119 CCC (3d) 565, [http://canlii.ca/t/2852g 1997 CanLII 14708] (Nfld. C.A.){{perNLCA|Green JA}}{{at|3}}</ref>  
+
''R v Gallon'', [http://canlii.ca/t/1mxn4 2006 NBCA 31] (CanLII){{perNBCA|Deschênes JA}}<br>
 +
''R v Elsharawy'' (1997), 119 CCC (3d) 565, [http://canlii.ca/t/2852g 1997 CanLII 14708] (Nfld. C.A.){{perNLCA|Green JA}}{{atL|3|http://canlii.ca/t/2852g}}</ref>  
  
 
{{Reflist|2}}
 
{{Reflist|2}}
Line 56: Line 57:
 
===Best Interests of Offender===
 
===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.<ref>
 
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.<ref>
Manson, The Law of Sentencing{{atp|211}} cited in ''R v Donovan'', [http://canlii.ca/t/g0p5q 2013 NSPC 83] (CanLII){{perNSPC|Whalen J}}{{at|27}}</ref>
+
Manson, The Law of Sentencing{{atp|211}} cited in ''R v Donovan'', [http://canlii.ca/t/g0p5q 2013 NSPC 83] (CanLII){{perNSPC|Whalen J}}{{atL|27|http://canlii.ca/t/g0p5q}}</ref>
  
 
Generally speaking the effect of the criminal record would be disproportionate to the offence, such as where the offender cannot pursue their chosen profession<ref>''R v Carroll'', [http://canlii.ca/t/1ddnb 1995 CanLII 1123] (BC CA){{perBCCA|Donald JA}}</ref>, education would be affected<ref>''R v Abouabdellah'', [http://canlii.ca/t/1njr2 1996 CanLII 6502] (QC CA){{TheCourtQCCA}}</ref>, etc. The reason for discharge cannot be mere speculation.<ref>''R v Roberts'',  [http://canlii.ca/t/1jb21 2004 SKCA 153] (CanLII){{TheCourtSKCA}}</ref>  
 
Generally speaking the effect of the criminal record would be disproportionate to the offence, such as where the offender cannot pursue their chosen profession<ref>''R v Carroll'', [http://canlii.ca/t/1ddnb 1995 CanLII 1123] (BC CA){{perBCCA|Donald JA}}</ref>, education would be affected<ref>''R v Abouabdellah'', [http://canlii.ca/t/1njr2 1996 CanLII 6502] (QC CA){{TheCourtQCCA}}</ref>, etc. The reason for discharge cannot be mere speculation.<ref>''R v Roberts'',  [http://canlii.ca/t/1jb21 2004 SKCA 153] (CanLII){{TheCourtSKCA}}</ref>  
  
The first factor of a discharge presupposes that the offender is of good character and so is without a prior criminal record.<ref>''R v Elsharawy'', [http://canlii.ca/t/2852g 1997 CanLII 14708] (NL CA), (1997), 119 CCC (3d) 565 (N.L.C.A.){{perNLCA|Green JA}}{{at|3}}</ref>  
+
The first factor of a discharge presupposes that the offender is of good character and so is without a prior criminal record.<ref>
 +
''R v Elsharawy'', [http://canlii.ca/t/2852g 1997 CanLII 14708] (NL CA), (1997), 119 CCC (3d) 565 (N.L.C.A.){{perNLCA|Green JA}}{{atL|3|http://canlii.ca/t/2852g}}</ref>  
  
 
It is generally preferred or sometimes necessary that the court have evidence of the consequence of a criminal record to support a discharge application.<ref>''R v Relph'', [http://canlii.ca/t/1d8jk 1991 CanLII 1236] (BC CA), [1991] BCJ No. 298 (BCCA){{perBCCA|Locke JA}} at 12</ref>
 
It is generally preferred or sometimes necessary that the court have evidence of the consequence of a criminal record to support a discharge application.<ref>''R v Relph'', [http://canlii.ca/t/1d8jk 1991 CanLII 1236] (BC CA), [1991] BCJ No. 298 (BCCA){{perBCCA|Locke JA}} at 12</ref>
Line 67: Line 69:
  
 
===Not contrary to public interest===
 
===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.<ref>''R v D'Eon'', [http://canlii.ca/t/fmtv2 2011 NSSC 330] (CanLII){{perNSSC|LeBlanc J}}{{ats|18 to 25}}<br>
+
A discharge does not have to be in the public interest, it simply must not be ''contrary'' to the public interest.<ref>
 +
''R v D'Eon'', [http://canlii.ca/t/fmtv2 2011 NSSC 330] (CanLII){{perNSSC|LeBlanc J}}{{atsL|18 to 25|http://canlii.ca/t/fmtv2#par18}}<br>
 
</ref>
 
</ref>
 
It is not necessary that the accused prove that it is in the public interest.<ref>
 
It is not necessary that the accused prove that it is in the public interest.<ref>
''R v Sellars'', [http://canlii.ca/t/g1tkt 2013 NSCA 129] (CanLII){{perNSCA|Beveridge JA}}{{at|27}}<br>
+
''R v Sellars'', [http://canlii.ca/t/g1tkt 2013 NSCA 129] (CanLII){{perNSCA|Beveridge JA}}{{atL|27|http://canlii.ca/t/g1tkt}}<br>
 
</ref>
 
</ref>
  
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The factors to determine the "public interest" and the weight "will vary depending on the circumstances of the offence and of the offender".<ref>
 
The factors to determine the "public interest" and the weight "will vary depending on the circumstances of the offence and of the offender".<ref>
{{supra1|Sellars}}{{at|37}}<br>
+
{{supra1|Sellars}}{{atL|37|http://canlii.ca/t/g1tkt}}<br>
 
</ref>
 
</ref>
  
 
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."<ref>
 
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."<ref>
''R v Elsharawy'', [1997] N.J. No. 249, [http://canlii.ca/t/2852g 1997 CanLII 14708] (NL CA){{perNLCA|Green JA}}{{at|3}}<br>
+
''R v Elsharawy'', [1997] N.J. No. 249, [http://canlii.ca/t/2852g 1997 CanLII 14708] (NL CA){{perNLCA|Green JA}}{{atL|3|http://canlii.ca/t/2852g}}<br>
 
</ref>   
 
</ref>   
  
Line 88: Line 91:
 
''R v Waters'', [http://canlii.ca/t/gbw4w 1990 CanLII 7561] (SK QB), (1990), 54 CCC (3d) 40 (Sask. QB){{perSKCA|Wedge JA}}<br>  
 
''R v Waters'', [http://canlii.ca/t/gbw4w 1990 CanLII 7561] (SK QB), (1990), 54 CCC (3d) 40 (Sask. QB){{perSKCA|Wedge JA}}<br>  
 
''R v MacFarlane'', [http://canlii.ca/t/fp1w3 1976 ALTASCAD 6] (CanLII), (1976) 3 Alta LR (2d) 341{{TheCourtABCA}}<br>
 
''R v MacFarlane'', [http://canlii.ca/t/fp1w3 1976 ALTASCAD 6] (CanLII), (1976) 3 Alta LR (2d) 341{{TheCourtABCA}}<br>
''R v Sanchez-Pino'', [http://canlii.ca/t/g13f1 1973 CanLII 794] (ON CA){{perONCA|Arnup JA}}{{at|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")<br>
+
''R v Sanchez-Pino'', [http://canlii.ca/t/g13f1 1973 CanLII 794] (ON CA){{perONCA|Arnup JA}}{{atL|19|http://canlii.ca/t/g13f1}} ("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")<br>
 
</ref>
 
</ref>
 
* the gravity of the offence;
 
* the gravity of the offence;
Line 99: Line 102:
  
 
It is not necessary that the offence be trivial to not be contrary to the public interest.<ref>
 
It is not necessary that the offence be trivial to not be contrary to the public interest.<ref>
{{supra1|Sellars}}{{ats|34 and 38}}<br>
+
{{supra1|Sellars}}{{atsL|34 and 38|http://canlii.ca/t/g1tkt#par34}}<br>
{{supra1|Snachez-Pino}}{{at|18}}<br>
+
{{supra1|Snachez-Pino}}{{atL|18|http://canlii.ca/t/g13f1}}<br>
 
</ref>
 
</ref>
  

Revision as of 17:21, 14 August 2019

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.), per D Smith JA
    R v Sanchez-Pino, 1973 CanLII 794 (ON CA), 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 http://canlii.ca/t/g0p5q

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), per Oland JA
  2. R v Burke, 1996 CanLII 11083 (NL CA), per Gushue CJ
    R v Montgrand, 2008 SKCA 50 (CanLII), per Wilkinson JA
    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), per Deschênes JA
    R v Elsharawy (1997), 119 CCC (3d) 565, 1997 CanLII 14708 (Nfld. C.A.), per Green JA, at para http://canlii.ca/t/2852g

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 (CanLII), per Whalen J, at para http://canlii.ca/t/g0p5q
  2. R v Carroll, 1995 CanLII 1123 (BC CA), per Donald JA
  3. R v Abouabdellah, 1996 CanLII 6502 (QC CA), per curiam
  4. R v Roberts, 2004 SKCA 153 (CanLII), per curiam
  5. R v Elsharawy, 1997 CanLII 14708 (NL CA), (1997), 119 CCC (3d) 565 (N.L.C.A.), per Green JA, at para http://canlii.ca/t/2852g
  6. R v Relph, 1991 CanLII 1236 (BC CA), [1991] BCJ No. 298 (BCCA), 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] 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 factors to determine the "public interest" and the weight "will vary depending on the circumstances of the offence and of the offender".[4]

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."[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]

  1. R v D'Eon, 2011 NSSC 330 (CanLII), per LeBlanc J, at to 25#parhttp://canlii.ca/t/fmtv2#par18 paras http://canlii.ca/t/fmtv2#par18{{{3}}}
  2. R v Sellars, 2013 NSCA 129 (CanLII), per Beveridge JA, at para http://canlii.ca/t/g1tkt
  3. Manson, The Law of Sentencing, at p. 211
  4. Sellars, supra, at para http://canlii.ca/t/g1tkt
  5. R v Elsharawy, [1997] N.J. No. 249, 1997 CanLII 14708 (NL CA), per Green JA, at para http://canlii.ca/t/2852g
  6. See R v Fallofield (1973), 13 CCC (2d) 450 (BCCA), 1973 CanLII 1412 (BC CA), per curiam
    R v Waters, 1990 CanLII 7561 (SK QB), (1990), 54 CCC (3d) 40 (Sask. QB), 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), per Arnup JA, at para http://canlii.ca/t/g13f1 ("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 and 38#parhttp://canlii.ca/t/g1tkt#par34 paras http://canlii.ca/t/g1tkt#par34{{{3}}}
    Snachez-Pino, supra, at para http://canlii.ca/t/g13f1

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), per Fraser CJ - denied
  2. R v Kadotchnikov, 2002 SKPC 112 (CanLII), 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), per Steel JA
  6. R v Tan (1974), 22 CCC (2d) 184 (BCCA), 1974 CanLII 1608 (BC CA), per Branca JA
  7. eg: R c Lasania, 2010 QCCS 3446 (CanLII), per Cohen J
  8. see R v Melo (1975), 26 CCC (2d) 510 (ONCA), 1975 CanLII 1299 (ON CA), per Arnup JA
    cf. R v Abouabedellah (1996), 1996 CanLII 6502 (QC CA), 109 CCC (3d) 477 (Que. C.A.), 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), per Ross J
    R v Munro, [1994] NSJ No. 693 (S.C.)(*no CanLII links)
    R v Boyle (1990), 100 N.S.R. (2d) 39, 1990 CanLII 4078 (NS SC), [1990] NSJ No. 371 (S.C.T.D.), per Kelly J
    R v Rhynold, 1993 CanLII 3218 (NS CA), [1993] NSJ No. 192 (C.A.), per Jones JA
    R v Sumyk, 2010 ABQB 217 (CanLII), per Burrows J
    R v Teclesenbet, 2009 ABCA 389 (CanLII), per McDonald JA - CD denied for domestic assault causing bodily harm
  2. R v MacFarlane (1976), 55 AR 222 (ABCA), 1976 ALTASCAD 6 (CanLII), per curiam
  3. Successful:
    R v Sowden, 2011 ONCJ 244 (CanLII), per Hearn J
    R v Batt, 2010 CanLII 18251 (NL PC), [2010] N.J. No. 137 (P.C.), per Gorman J -- Joint Recommendation
    R v Morgan, [2003] N.J. No. 341 (S.C.)(*no CanLII links) -- Joint Recommendation
    unsuccessful:
    R v Gulpin, (1975), 36 CRNS 363 (ONCA)(*no CanLII links)
    R v Wood, (1975), 24 CCC (2d) 79 (ONCA), 1975 CanLII 1410 (ON CA), 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] N.J. No. 4 (P.C.), per Gorman J -- probation

Curative Discharges

Digests