What is a conditional discharge?

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What is a conditional discharge?

A conditional discharge is a sentence for committing an offence that allows you to avoid a criminal record of being convicted of that offence by serving a term of probation with certain conditions. The conditions will be in place for up to three years – but one to two years is more common. If you follow the conditions of your probation, then you will not have a criminal record for the offence after three years. This is often a very good outcome for somewhat serious offences.

Am I eligible for a conditional discharge?

To be eligible for a conditional discharge, you must be found guilty of the crime – either by being found guilty, or by a judge accepting your guilty plea. 

Conditional discharges are most commonly ordered for more minor crimes that do not involve physical violence or violating a trust position, like minor theft or harassment charges. However, conditional discharges may be ordered for violent offences when doing so is in the best interest of the offender and society.

It is almost always in the best interest of the offender to receive a conditional discharge – the more challenging part is persuading the judge that it is in the best interest of society. Defence counsel often asks the judge to grant a conditional discharge for domestic assault, assault with a weapon, or assault causing bodily harm charges. Discharges are rarer for these kinds of charges, and are typically only ordered in the “clearest of cases” where doing so is appropriate based on the nature of the offence and the offender.

How do I get a conditional discharge?

To get a conditional discharge – especially for a violent offence – you must be able to convince the judge that granting you a conditional discharge is in the best interest of you and society. The judge will primarily consider six factors in making that decision, assuming they apply to your case:

1. The nature and seriousness of the offence. The more serious it is and the more harm it causes, the less likely the judge will be to order a conditional discharge.
2. How common the offence is in the community. As a general rule, more common offences are less likely to receive conditional discharges.
3. If you stood to personally gain from the offence. The more you stood to gain, the less likely you are to receive a conditional discharge. This tends to apply in financial crimes, not violent crimes.
4. The value of any property damaged by the offence. The more expensive the damage, the less likely you are to receive a conditional discharge.
5. Whether the crime was impulsive or calculated. More calculated and planned offences are less likely to receive a conditional discharge.
6. The public’s interest in a record existing. The greater the interest, the less likely you will receive a conditional discharge. This issue often comes up in domestic violence or serious fraud cases – potential future romantic and business partners have an interest in being protected by the knowledge that you have a record for this sort of behaviour.

Ultimately, those who are successful in being sentenced to a conditional discharge are usually able to show the court that their actions are out of character, and that they have dramatically improved themselves such that they are unlikely to engage in this sort of behaviour again. Voluntarily undergoing counselling, such as addictions counselling or anger management, can go a long way in helping you receive a conditional discharge.

What conditions will I have for a conditional discharge?

In addition to having to report to probation, common conditions for a conditional discharge include attending programming, such as addictions or domestic violence counselling, abstaining from alcohol or unprescribed drugs, not owning any weapons, and not contacting the victim. Your conditions will depend on the circumstances of you and the offence.

What happens if I breach a conditional discharge?

If you breach the conditions of your conditional discharge, then the discharge can be revoked and you can be convicted of the original offence, meaning that you will receive a criminal record and likely receive a harsher sentence, like a jail sentence.