WHAT IS A CONDITIONAL DISCHARGE?
A conditional discharge (not to be confused with a conditional sentence) is a sentence in law that allows a person to be found guilty of an offence without having a conviction registered against him or her. In Canada, a person is not considered to have a criminal record until a conviction is registered against then.
Because of the negative impact a criminal conviction can have on an individual, the law allows a person found guilty of a minor offence to be sentenced to a conditional discharge. A person who is sentenced to this type of discharge will be required to follow certain conditions imposed on them by the court.
These conditions often include counselling, community service, not attending certain places and not communicating with certain people.
How does a Conditional Discharge affect Immigration/Crossing the border?
American authorities are not bound by Canadian laws and can refuse and permit entry into their country for a broad array of reasons. Even though discharges are not criminal convictions, a record of them is still kept on a police criminal record database that is available to American authorities for a period of three years after the sentence is imposed. American border authorities will refuse entry to a person who has committed a crime of moral turpitude.
American authorities do not recognize absolute and conditional discharges as a lesser sentence in their law. As a result of this a person may still be refused entry into the United States as a result of a discharge. In considering whether or not to enter the United States, a person with a discharge should consider whether or not they should wait for three years until the discharge is removed from record.
If American authorities take note of such a record, they can add it to their own databases long after the three year period has lapsed with the Canadian authorities. As a result, a person with a conditional discharge could potentially be barred from entering to the United States indefinitely.
How do I get Sentenced to a Conditional Discharge?
In considering whether or not to grant a conditional discharged for a finding of guilty, a court will consider whether doing so would be in the interest of the accused and also whether it is in line with the public interest . If a court is satisfied of these two conditions and there are no other legal obstacles, a conditional discharge can be granted.
What Offences can I be given a Conditional Discharge for?
Discharges are not available for all charges. A person is not eligible to receive a conditional discharge if the offence he/she is found guilty of carries a minimum sentence. A person cannot receive a conditional discharge if the offence carries a maximum sentence of over 14 years in jail.
How will a Conditional Discharge affect my Employment?
A person with a conditional discharge can properly inform an employer that they do not have a criminal record. Certain professions like teaching, however, require more detailed searches of a person’s police involvement and a person must sign a waiver that gives an employer access to information of a conditional discharge while applying for a job.
How will a Conditional Discharge affect my Immigration Status?
For the purpose of Canadian immigration a discharge of any type is not a conviction. As a result being sentenced to a conditional discharge (rather than a conviction) can be beneficial to someone found guilty of an offence who has yet to receive Canadian citizenship.
Steps
Lakin Afolabi is a criminal defence lawyer in London, Ontario who has successfully obtained numerous conditional discharges for people facing the possibility of having a criminal record. If you or someone you know is charged with an offence and looking to remain criminal record free or if you are unsure as to the status of a conditional discharge that you may have received, call him for a consultation.