Canadian Criminal Sentencing/Available Sentences/Discharges

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Legislation[edit]

The Criminal Codes describes the discharge as:

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.

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.

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

Effect[edit]

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 [1]
  2. R. v. Burke 1996 Nfld CA; R. v. Montgrand, 2008 SKCA 50 [2]; s. 730(3)
  3. s. 6.1 of the Criminal Records Act

Requirements[edit]

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

Best interests of offender[edit]

Generally speaking the effect of the criminal record would be disproportionate to the offence, such as where the offender cannot pursue their chosen profession[1], education would be affected[2], etc. The reason for discharge cannot be mere speculation.[3]

The first factor of a discharge presupposes that the offender is of good character and so is without a prior criminal record.[4]

It is generally preferred or sometimes necessary that the court have evidence of the consequence of a criminal record volunteer activities to support a discharge application.[5]

  1. R. v. Carroll, 1995 BCCA
  2. R. v. Abouabdellah 1996 QCCA
  3. R. v. Roberts, 2004 SKCA 153 [4]
  4. R. v. Elsharawy 1997 CanLII 14708 (NL CA), (1997), 119 C.C.C. (3d) 565 (N.L.C.A.) at 3
  5. R. v. Relph [1991] B.C.J. No. 298 (BCCA) at 12

Not contrary to public interest[edit]

A discharge does not have to be in the public interest, it simply must not be contrary to the public interest.[1]

The second factor considers:[2]

  • 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 at para 18 to 25
  2. See R. v. Fallofield (1973), 13 C.C.C. (2d) 450 (B.C.C.A.)
    R. v. Waters, (1990), 54 C.C.C. (3d) 40 (Sask. QB)
    R v MacFarlane, 1976 ALTASCAD 6, (1976) 3 Alta LR (2d) 341

Where applied[edit]

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.

  1. R. v. Chalifoux, 1995 ABCA 444 [5] - denied
  2. R. v. Kadotchnikov, 2002 SKPC 112[6] - CD granted
  3. R. v. Lail, 2007 ABPC 117[7] - granted
  4. R. v. Pepper, 2005 ABPC 294[8] - granted
  5. R. v. Wisniewski, 2002 MBCA 93 [9]
  6. Tan (1974), 22 C.C.C. (2d) 184 (B.C.C.A.)
  7. eg: R. c. Lasania, 2010 QCCS 3446 (CanLII) [10]

Absolute vs Conditional[edit]

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) [11]

Offences of violence[edit]

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] O.J. No. 193
    R v. Stevens, 2009 NSPC 46 [12]
    R. v. Munro, [1994] N.S.J. No. 693 (S.C.)
    R v. Boyle (1990), 100 N.S.R. (2d) 39, [1990] N.S.J. No. 371 (S.C.T.D.)
    R v. Rhynold, [1993] N.S.J. No. 192 (C.A.)
    R. v. Sumyk, 2010 ABQB 217[13]
    R. v. Teclesenbet, 2009 ABCA 389 [14] - CD denied for domestic assault causing bodily harm
  2. R. v. MacFarlane (1976), 55 AR 222 (ABCA)
  3. Successful:
    R. v. Sowden, 2011 ONCJ 244 [15] R. v. Batt, [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)
    R. v. Wood, (1975), 24 CCC (2d) 79 (ONCA)
    R. v. Pynn, 2011 CanLII 6161 (NL PC) [16] -- conditional sentence
    R. v. Sullivan, [2011] N.J. No. 4 (P.C.) -- probation

Curative Discharge[edit]

The curative discharge is a sub-category of the discharge in relation to motor-vehicle offences.

s. 255(5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under section 253, after hearing medical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcohol or drugs and that it would not be contrary to the public interest, by order direct that the person be discharged under section 730 on the conditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation to that consumption of alcohol or drugs.


This provision has not been proclaimed in BC, Ontario, Quebec, Newfoundland.

For a discharge to be granted, the following must be present:

  1. Court must hear evidence of a medical or similar nature;
  2. court must be of the opinion that the client is in need of curative treatment in relation to alcohol or drug use;
  3. court must be of an opinion that the discharge would not be contrary to the public interest.

Factors to consider on the issue of public interest include:[1]

  • good faith of the accused
  • past criminal record
  • presence of a driving prohibition at the time
  • whether there was a previous discharge given

Other factors considered:

  • the necessary program is available
  • the program is likely to be successful
  • the accused is motivated to overcome alcoholism

Curative discharges are not appropriate where the charge occurred while the offender was subject to a previous treatment discharge.[2]

  1. R. v. Storr, 1995 ABCA 301 at para. 17
  2. R. v. Conn, [2004] M.J. No. 413 (MBCA)

Digests[edit]

Conditional Discharge[edit]

Principles

  • R. v. MacFarlane, [1976] 3 Alta. L.R. (2d) 341 (Alta. C.A.)

Sexual assault

Theft

Curative Discharge[edit]