Both conditional and absolute discharges can prevent a permanent criminal record, making them a preferred resolution in criminal cases. However, mistakes may lead to a discharge being inaccurately recorded as a conviction or not properly removed from records due to processing errors by the courts or police. A key benefit of either discharge is that while you’re found guilty, you’re not convicted. This distinction allows you to truthfully state on job applications that you’ve never been convicted of a crime. If asked whether you’ve ever been found guilty, however, you must answer "yes"
Although conditional and absolute discharges share some similarities, there are critical differences between them.
What is a Conditional Discharge?
A conditional discharge occurs when you’re found guilty but are not given a criminal record, provided you meet specific conditions. Typically, this includes probation lasting up to three years. The conditions depend on the nature of the offence and any prior criminal record.
Failing to meet these conditions can result in a more severe penalty than the original one and may lead to further charges. If you meet all terms, the discharge should be automatically purged from the Canadian Police database after three years. It's crucial to have a lawyer ensure the discharge is properly removed, as mistakes can happen.
What is an Absolute Discharge?
An absolute discharge involves no probation, conditions, or further court requirements. It remains on your record for only one year after completion. Absolute discharge is generally the most favorable outcome aside from a full withdrawal of charges.
Will a Discharge Show on a Background Check?
Yes, discharges appear on background checks for employment, housing, adoption, and volunteering until they are purged. A conditional discharge should be purged after three years, and an absolute discharge after one year. While discharges are often automatically purged, a formal request may be necessary. If not removed, the discharge remains on your record permanently.
If you disclose your discharge to a third party, they may retain a permanent record of the offence.
Travel Restrictions with a Conditional Discharge
Though a discharge doesn’t equal a criminal conviction, it does involve an admission of guilt. The United States treats this admission similarly to a conviction, potentially restricting travel for certain offences. If your discharge relates to an excludable offence, such as a crime of violence or moral turpitude (theft, fraud), you may be barred from entering the U.S. However, discharges tied to non-excludable offences like impaired driving, mischief, common assault, or trespassing generally won’t affect international travel.
Is a Discharge Better Than a Withdrawn Charge?
No, a withdrawn charge is preferable since it doesn’t involve a guilty finding. With a discharge, you are still found guilty, which could cause issues, particularly for U.S. travel. An experienced Ontario defence lawyer can help determine whether accepting a discharge is the best option in your case. Sometimes, it is better to push for charge withdrawal rather than accept a conditional or absolute discharge.
