Toronto Criminal Lawyers Blog

What is a Discharge?

If you are charged with a criminal offence, the criminal defence lawyers at Kostman & Pyzer, Barristers will endeavor to help you avoid a criminal record. One of the ways this can be accomplished is by obtaining a discharge under s. 730(1) of the Criminal Code. A discharge is a disposition from the Court after a finding of guilt which does not constitute a conviction and is not a criminal record.

Eligibility

Not every accused is eligible for a discharge. Discharges are only available to individuals; thus, an organization such as a corporation which has been charged with an offence cannot obtain a discharge. In addition, a discharge is only available in response to a particular category of offences. For the purposes of obtaining a discharge there are three categories of offences.

1.    Prescribed by Law – You cannot obtain a discharge for offences for which a minimum punishment is prescribed by law. For example, under s. 85(3) of the Criminal Code, using a firearm in the commission of an offence carries a minimum sentence of one year for a first offence. An individual charged under s. 85(3) would not be eligible for a discharge. Some other examples of crimes which carry minimum sentences include: knowing possession of an unauthorized firearm (second offence), possession of a weapon obtained by crime, possession of weapons for the purpose of trafficking, sexual interference, sexual exploitation of a person under 14, inviting sexual touching of a person under 14, possession of or accessing child pornography, betting, pool-selling, book-making, placing bets on behalf of others, obtaining the sexual services of a person under 18, murder, manslaughter with a firearm, attempted murder, sexual assault with a weapon, aggravated sexual assault with use of a weapon, kidnapping, hostage taking, robbery with a firearm, extortion.

2.    Offences Punishable by Fourteen Years or Life – You cannot obtain a discharge for a crime which can carry a minimum sentence of fourteen years or life. For example, pursuant to s. 745(a) of the Criminal Code first degree murder carries a mandatory sentence of life in prison. Some other examples of offences in this category include: hijacking, endangering an aircraft, several offences involving explosives, bribery of a judicial officer, perjury, fabricating evidence, incest, criminal negligence causing death, murder, manslaughter, attempted murder, accessory to murder, discharging a firearm with intent to kill, dangerous driving causing death, failing to stop at the scene of an accident knowing a person is dead, impaired operation of a motor vehicle causing death, aggravated assault, torture, sexual assault with a weapon, aggravated sexual assault, kidnapping, human trafficking, hostage taking,  criminal breach of trust, robbery, extortion, break & enter with intent, some forms of fraud, willful mischief endangering life, arson, making counterfeit money, possession of counterfeit money, conspiracy to murder, commission of an offence for a criminal organization.

3.    Other – All other offences may be resolved by way of discharge should the court see fit.

If you are charged with an offence for which a discharge is available certain criteria must be met in order to obtain a discharge.

1.    There must be a finding of guilt either as a result of a guilty plea or a finding of guilt after trial, and the offence must be one in which a discharge is eligible.

2.    The discharge is in the accused’s best interest and

3.    Ordering a discharge is not contrary to the public interest.

In determining whether a discharge is in the accused’s best interest, a judge is at liberty to consider factors such as:

•    whether the accused has been granted a discharge in the past,
•    the accused’s character,
•    the accused’s criminal history
•    whether it is necessary to enter a conviction against the accused to deter him/her from offending in the future
•    whether it is necessary to enter a conviction against the accused in order to rehabilitate him/her, and
•    that the entry of a conviction against the accused can have significant repercussion for him/her (e.g., social stigma, difficulty finding a job, etc.)

In considering whether ordering a discharge is not contrary to the public interest, a judge must consider whether a discharge should be entered to deter the general public from committing a similar offence. The overall objective of a discharge is to avoid ascribing a criminal record to an accused where the circumstances and overall character of the accused mitigate against such a disposition. A judge’s decision to order a discharge is thus very individualized depending on the accused person before them. Discharges are not applied routinely to particular crimes, nor are they more common for youth offenders than for mature offenders. The decision to grant a discharge is case specific.

Types of Discharges

There are two types of discharges which a judge can dispense. The first is an absolute discharge. Though an absolute discharge is a finding of guilt, no action is taken by the state following such an order. The individual is essentially free to go. Though the discharge is recorded by the Canadian Police Information Center, it is not entered on an individual’s criminal record. According to the decision in Bram absolute discharges should be used sparingly to deter the general public from committing crimes. However, the court in Bram also specified that absolute discharges should not be limited to the most minor of offences. Rather, this type of discharge is available for any offence in the category of offences which may be discharged.

The second type of discharge is a conditional discharge. Like absolute discharges, conditional discharges do not appear on your criminal record. However, following release on a conditional discharge, the accused will be required to undertake certain specified actions for a maximum period of three years. Some examples are:
•    a requirement that the accused undergo counseling
•    a requirement that the accused enroll in a substance abuse program or obtain treatment for substance abuse, and
•    a requirement that the accused complete a certain number of hours of community service.
Like an absolute discharge, a conditional discharge is recorded by the Canadian Police Information Center, but will not appear as a conviction on your criminal record.

Repercussions of a Discharge

The most important aspect of a discharge is that it is a finding of guilt not a criminal conviction. An individual who receives a discharge will have a criminal record within the meaning of the Criminal Records Act. The offence for which the discharge was granted will not appear as a conviction on that record however it will be temporarily noted on your criminal record as a discharge. The RCMP is obliged to remove all references to a discharge from your criminal record after 1 year for an absolute discharge or 3 years for a conditional discharge. A discharge cannot be taken into account in the future during sentencing for a subsequent conviction.

However, there are some negative consequences associated with a discharge. Though an absolute discharge may not interfere with your ability to travel to the United States, a conditional discharge may impede that ability (see Emigration (U.S.) Consequences of a Criminal Conviction). Moreover, the fact that you have received a discharge from a first offence may make it less likely that the court will grant you a discharge from any future offence. Finally, there are consequences for breaching the terms of a conditional discharge. If you are issued a conditional discharge, you are essentially on probation for the term specified in the conditions. If, during this time you fail to comply with the conditions or commit another criminal offence, you may be charged with the criminal offence of “Failure to Comply with a condition of Probation”.

If you are charged with a criminal offence, the criminal defence lawyers at Kostman & Pyzer, Barristers can assist you to obtain a discharge and keep your criminal record clean. If you have any questions about the implications of an existing discharge or are facing criminal charges, contact us at 416-658-1818.

The Ontario government has recently made some important changes to the laws governing impaired driving. At Kostman & Pyzer, we are often approached by individuals who have been charged with an drinking and driving- related offence such as “impaired driving” or “over 80”. These individuals face criminal charges which can result in driving suspensions, fines, and jail time. If you are facing one of these charges and you contact our office, we will fight for your rights and make full answer and defence to these charges.

However, the new laws regarding drinking and driving are not aimed at traditionally criminal behaviour and operate differently than the criminal charges usually faced by our clients. The new rules do not target drivers who are found to have a Blood Alcohol Concentration (“BAC”) over the legal limit (0.08). Rather, they target individuals who are found to have a BAC between 0.05 and 0.08. This is traditionally referred to as the “warn range”. Before May 1st, 2009, drivers found operating motor vehicles with a BAC in the warn range were given a warning and received an automatic 12-hour driver’s license suspension. This course of action was taken no matter how many times an individual was found with a BAC in the warn range.

As of May 1, 2009, the procedure for dealing with individuals found driving with alcohol levels within the warn range has changed significantly. Individuals now face increasingly stringent consequences each time they are caught within the warn range.

First Infraction

• 3 day license suspension
• $150 fine.

Second Infraction (within 5 years)

• 7 day license suspension
• Mandatory alcohol education program
• $150 fine.

Third Infraction (within 5 years)

• 30 day license suspension
• Mandatory alcohol education program
• 6 month ignition interlock condition placed on driver’s license for six months. (This condition means that the individual cannot drive any car that does not have an ignition interlock system installed for sixth months from the infraction).
• $150 fine.

Subsequent Infractions (within 5 years)

• 30 day license suspension
• Mandatory alcohol education program
• Mandatory medical evaluation
• 6 month ignition interlock condition placed on driver’s license for six months. (This condition means that the individual cannot drive any car that does not have an ignition interlock system installed for sixth months from the infraction).
• $150 fine.

The new penalties are imposed automatically based on the results of a roadside breath test. If that test registers a BAC in the warn range, your license can be immediately suspended by the police. The officer on the scene will confiscate your license and send it to the Ministry of Transportation. You will not be able to drive home. If there is a sober, licensed alternative driver in the vehicle, that individual can drive you home. If not, you will have to leave the car on the side of the road. If you are pulled over in an unsafe location, the police will have the vehicle towed at your expense. When the suspension period ends, you will receive a reinstatement notice in the mail which will usually include a Temporary Driver’s License (unless there are other outstanding issues with your license). You may then go to a Driver and Vehicle License Issuing Office to pay the $150 fine, after which a new license will be issued to you through the mail.

Unlike the traditional drinking and driving charges mentioned above (“impaired driving” or “over 80”), individuals found driving with a BAC in the warn range do not have a right to a trial. There is no mechanism available to appeal this type of roadside license suspension. These suspensions will appear on your driving record. They will be considered for up to five years in determining penalties for subsequent infractions. These infractions may also carry insurance consequences. However, it is important to note that these infractions are driving infractions and not criminal convictions and as such they will not appear on your criminal record.

Contact the law office of Kostman & Pyzer, Barristers, to protect your rights