A conditional discharge is defined in this excerpt from the Criminal Code of Canada:
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).
Though not a conviction, it is still evidence of guilt because the accused ”pleads guilty to or is found guilty of an offence.” An absolute discharge will appear on your criminal record for one year and a conditional discharge will appear on your criminal record for 3 years. If you fail to meet the conditions, the discharge may be revoked and you could be subsequently convicted.
CAUTION: The discharge will show up in employment pre-screening or at U.S. border crossings during the one or three year period that the discharge appears on your record. And, if your discharge is not automatically purged after the one or three year period, the discharge will appear on your record until you write to the RCMP to have it purged. SEE HOW TO PURGE A DISCHARGE.
It is still evidence of guilt.
Having a conditional discharge can affect you the following ways:
- It appears on your RCMP record for one year (if absolute) or three years (if conditional), following which it is either purged or you have to request in writing to have it purged.
- A discharge may prevent you from gaining legal entry to the United States if it is an excludable offence. Waivers can cost thousands over your lifetime. And, it is possible that if you need a Waiver it will not be granted until at least 5 years have past since the alleged offence was committed.
- The discharge will show up on a criminal records check for employment, volunteering, adopting, etc. until such time as it has been purged.
- If you have other convictions for which you are applying for a Pardon (now called a Record Suspension), a Conditional or Absolute Discharge may result in the denial of your Pardon or Record Suspension for a period of up to 5 years as there was an admission or finding of guilt. See Good Conduct Criteria.
What is a Criminal Record?
Many people assume that a Conditional Discharge is not a ‘conviction’. They are right–it is not a conviction. But, the question should not be ‘is it a conviction’? Rather, the question should be ‘does it constitute a criminal record’? Arguably, a criminal record is any information on file pertaining to a person that is related to a criminal charge, that resulted in a conviction, stay of proceedings, withdrawn, conviction, discharge or that was dealt with by way of alternative measures that may negatively reflect upon their character. For so long as there is any kind of information on record which is associated with your name and date of birth, it could by definition constitute a type of criminal record, even though no criminal conviction may have resulted.
Many people do not understand that by negotiating or accepting a conditional discharge that it is the interpretation of the Criminal Code that there has been an admission or finding of guilt. Had they clearly understood this, they may instead have fought the charge in hopes of a ‘not guilty’ sentence.