Discharge

Criminal Law

The origins and foundations of the discharge

The discharge is rooted in criminal law’s recognition that, while not every offence must necessarily be punished, it is nonetheless necessary for the offender to acknowledge it. To be granted, two cumulative criteria must be met:

• Finding of the alleged offence: The court establishes that the offence was indeed committed, bringing together the material elements (actus reus) and mental elements (mens rea) required to qualify the offence.
• Absence of a sanction: Despite the accused’s acknowledgment of guilt, the judge decides not to impose a sentence due to particular circumstances.

A discharge thus does not call the finding of guilt into question, but eliminates its punitive effect: it is an intermediate measure situated between acquittal and conviction.

The criteria used to decide whether to grant a discharge

A balance must be struck between the interest of society and that of the offender to assess whether a discharge is appropriate (s. 730(1) Cr.C.).

The public interest is assessed, among other things, by the seriousness of the conduct at issue and its impact on the community, by the need to deter the public from committing crimes, and by maintaining public confidence in the justice system.

The offender’s interest, referred to informally as their « true interest, » can support a discharge if it is shown that this would promote rehabilitation without increasing the risk of reoffending. The offender must therefore be a person of good character, meaning they do not need to be punished to understand the seriousness of their actions and to take the steps necessary to avoid repeating the same mistakes.

Examples of criteria to consider

• Objective seriousness of the offence — A violent crime is more rarely discharged.
• Premeditation — A premeditated offence is more rarely accompanied by a low risk of reoffending.
• Personal characteristics of the accused — A substance use issue that the offender has addressed can support their discharge.
• Impact of a conviction on an offender’s life — The fact that a criminal record would prevent someone from keeping their job supports a discharge.

It is therefore necessary to assess, in light of the specific situation at hand, whether the offender, without a discharge, would suffer a penalty disproportionate to their wrongdoing.

Forms of discharge

A discharge can be granted in two distinct ways, under section 730 of the Criminal Code: it may be conditional or absolute.

Conditional discharge

The discharge comes with a probation order. This order imposes conditions the accused must follow for a set period of up to three years (ss. 731 and 732.2(2) Cr.C.). These conditions may include (s. 732.1 Cr.C.):

• An obligation to undergo treatment or therapy;
• A prohibition from attending certain places or associating with certain people;
• A donation to be made;
• Volunteer work;
• An undertaking not to commit further offences.

If the accused fails to comply with these conditions, the court may modify or extend the order, or even impose a conviction.

Absolute discharge

In this case, the accused is simply discharged with no conditions attached. The court thus decides that no additional measures are necessary based on its analysis of the criteria described above.

Concrete examples of a discharge

To better understand, here are a few examples illustrating the application of a discharge.

• Case of a teenager with substance use issues: A minor found guilty of stealing a can of beer may be conditionally discharged, with probation including therapeutic follow-up addressing their alcohol use problems.
• Irreversible consequences on a young adult’s employment: A young adult found guilty of obstructing police officers may be discharged if it is determined that a conviction would jeopardize the international trade job search they had just begun after recently completing their studies.

The legal implications of a discharge

Being discharged by a judge carries several consequences for an offender’s life:

No criminal record

A discharged accused does not have their conviction entered on their criminal record (s. 730(3) Cr.C.); the record of the discharge is removed from federal records after one year (absolute discharge) or three years (conditional discharge) (s. 6.1 of the Criminal Records Act). This facilitates their social and professional reintegration.

No sentence to serve

A discharge avoids the imposition of a sentence, which could otherwise have included detention, community service, or a fine.

The finding of guilt remains

The finding of guilt nevertheless remains on record, as the accused does not benefit from an acquittal. This can have implications in the event of a repeat offence: it is indeed harder to obtain a second discharge in one’s lifetime.

Judicial oversight in the case of a conditional discharge

The court retains oversight over the offender during the probation period. Failure to comply with the conditions can indeed lead to a review of the decision.

The discharge from the perspective of humane justice

The discharge reflects a more humane and nuanced approach to criminal justice. It recognizes that sanctions should not be automatic or systematic, but tailored to each situation.

This measure allows for:

• Promoting social reintegration
• Avoiding excessive sentences
• Taking into account the mitigating circumstances of a particular situation
• Preventing lasting stigmatization of the accused

Conclusion