A discharge is one of the few sentencing outcomes under Canadian law where a person is found guilty but does not end up with a registered criminal conviction. This page explains how absolute and conditional discharges work under section 730 of the Criminal Code, who can receive one, and what happens if a conditional discharge is breached. It is general legal information only, not legal advice, and does not suggest that a discharge is available or likely in any specific case.
This page focuses on discharges as a sentencing outcome, decided by a judge at the time of sentencing. For a separate look at how a discharge appears afterward, including on background checks and record systems, see our page on discharges and your criminal record.
What Is a Discharge?
Under section 730 of the Criminal Code, a court that finds an accused person guilty of an offence, other than one with a minimum punishment prescribed by law or one punishable by imprisonment for fourteen years or life, may, instead of registering a conviction, direct that the offender be discharged either absolutely or on conditions set out in a probation order.
A discharge means a finding of guilt has been made, but no conviction is formally entered. This distinguishes a discharge from every other sentencing outcome discussed on this site, such as a suspended sentence, a fine, or a period of custody, all of which involve a registered conviction.
Absolute Discharges
An absolute discharge is granted without any conditions attached. Once ordered, it takes effect immediately, and the offender is not placed on probation or subject to any further supervision in connection with that offence.
Conditional Discharges
A conditional discharge comes with a probation order attached, meaning the offender must comply with specific conditions, which can include things like reporting to a probation officer, keeping the peace, or completing counselling, generally for a period of up to three years. If the offender successfully completes the period of probation without breaching its conditions, the discharge stands and no conviction is ever registered for that offence.
A discharge is not automatic and is not available for every offence. Whether a discharge is realistic in a specific case depends on the offence, the offender's circumstances, and the submissions made to the court, and is a matter for a lawyer to assess.
Who Is Eligible for a Discharge?
A discharge is generally not available for an offence that carries a mandatory minimum penalty, or for an offence with a maximum penalty of fourteen years' imprisonment or life imprisonment. These limits mean that discharges are reserved for less serious offences, and are simply not a legal option for many of the more serious offences under the Criminal Code, regardless of an individual offender's personal circumstances.
Even where an offence is legally eligible for a discharge, that does not mean a discharge will be granted. It remains a discretionary decision for the sentencing judge, based on the test discussed below.
Because the eligibility limits turn on the maximum, and in some cases the minimum, penalty attached to a specific offence, correctly identifying whether a discharge is even a legal possibility requires knowing exactly how a charge is classified and prosecuted. A lawyer reviewing the specific charge can confirm whether a discharge is on the table before any argument about the best-interests and public-interest test is even made.
The Legal Test: Best Interests and Public Interest
Section 730 requires that a court be satisfied both that a discharge is in the best interests of the accused and that it is not contrary to the public interest before granting one. Both parts of this test must be met. A discharge might be in an individual offender's best interests, for example, but still be refused if the court concludes it would not be in the public interest given the nature of the offence.
Applying this two-part test requires a detailed look at the offence, the offender's circumstances, and any submissions from the Crown and defence. This is an area where the specific facts of a case make a significant difference, and a lawyer can advise on whether a discharge is a realistic argument to make in a particular matter.
What Happens If a Conditional Discharge Is Breached
If an offender breaches a condition of their probation order under a conditional discharge, the matter can be brought back before the court. A court can revoke the discharge, and if it does, a conviction is registered for the original offence and a further sentence can be imposed for that offence, in addition to any separate consequences for the breach itself. In other words, breaching the conditions of a conditional discharge can result in exactly the conviction the discharge was designed to avoid.
A breach of a probation condition is also, on its own, a separate offence under section 733.1 of the Criminal Code. Our page on breach of probation charges explains how that separate charge works, including how it can arise and what it involves.
This is one of the reasons the conditions attached to a conditional discharge should be taken seriously. What looks, on its face, like a lenient outcome can unravel quickly if the conditions are not followed, leaving the offender facing both a conviction for the original offence and a separate breach charge, rather than the outcome the discharge was meant to provide.
Discharges and Your Record
Because a discharge does not result in a conviction, it is treated differently from a conviction for record purposes, including different rules about how long information about it may remain accessible and how it may need to be dealt with later. This is a detailed area on its own, and our page on discharges and your criminal record explains it from that angle, including what a discharge means for background checks and record retention.
Frequently Asked Questions
Is a discharge the same as being found not guilty?
No. A discharge still involves a finding of guilt. What is different is that a formal conviction is not registered, unlike most other sentencing outcomes.
What is the difference between an absolute and a conditional discharge?
An absolute discharge has no conditions attached and takes effect immediately. A conditional discharge comes with a probation order and conditions the offender must follow for a set period.
Can I get a discharge for any offence?
No. A discharge is generally not available for offences with a mandatory minimum penalty or a maximum penalty of fourteen years' imprisonment or life imprisonment.
What happens if I breach the conditions of a conditional discharge?
The court can revoke the discharge, register a conviction for the original offence, and impose a further sentence. A breach can also lead to a separate charge under section 733.1.
Does a discharge show up on a background check?
This depends on the type of check and how much time has passed. Our page on discharges and your criminal record explains this in detail.
Do I need a lawyer to ask for a discharge?
A discharge is not automatic, and a court must be persuaded that it meets the legal test under section 730. A lawyer can advise on whether a discharge is a realistic argument in a specific case and can make submissions to the court on your behalf.