A conditional discharge, which should not be mistaken for a conditional sentence, is a legal sentence that permits someone to be found guilty of an offence without having a conviction officially recorded against them on their criminal record. In Canada, an individual is not regarded as having a criminal record until a conviction is formally registered against them.
Given the adverse repercussions that a criminal conviction can have on an individual, the law allows a person found guilty of a minor offence to receive a conditional discharge. Your criminal lawyer will have to negotiate a conditional discharge with the Crown Prosecutor by explaining the circumstances of the offence, along with your personal circumstances and demonstrate that why a conditional discharge would be a suitable sentence for you. If someone is sentenced to this type of discharge, they will be required to comply with specific court-imposed conditions. Your lawyer will also try and convince either the Crown or the Judge of your willingness and ability to abide by court-imposed conditions.
These conditions often involve attending counseling sessions, performing community service, avoiding certain locations, and refraining from communicating with certain individuals.
What is the impact of a Conditional Discharge on Immigration and Crossing the Border?
Canadian laws regarding Conditional Discharges do not bind American authorities, who can refuse or permit entry into their country for a wide range of reasons. Even though Conditional Discharges are not criminal convictions, they are still recorded on a police criminal database, which American authorities can access for up to three years after the sentence is imposed. If a person has committed a crime of moral turpitude, American border authorities may deny entry to them.
Under American law, absolute and conditional discharges are not recognized as lesser sentences, which means that a person may still be refused entry into the United States as a result of a Conditional Discharge. If someone has received a discharge, they should consider waiting for three years until the entry is removed from the police criminal database before attempting to enter the United States.
Additionally, American authorities can retain information about a Conditional Discharge long after the three-year period has elapsed with Canadian authorities. Consequently, a person with a Conditional Discharge could potentially be prohibited from entering the United States indefinitely.
How can I be Sentenced to a Conditional Discharge?
We explained earlier that a Conditional Discharge is often negotiated with the Crown Prosecutor. However, the Crown may often have a different position on sentencing and may not agree to with your lawyer. This is when your lawyer may advise you on proceeding with a contested sentencing. This is where your lawyer argues against the Crown’s position in front of a judge and advocates for your best interest. Your lawyer will outline the facts of your case and your personal circumstances to demonstrate how a Conditional Discharge is in your best interest and not contrary to the public interest. Therefore, when deciding whether to grant a Conditional Discharge for a guilty verdict, a court will take into account whether it is in your best interest and whether it aligns with the public interest. If the court determines that these two criteria are met, and there are no other legal barriers, a Conditional Discharge may be awarded.
Which Offences are Eligible for a Conditional Discharge?
Not all charges are eligible for a Conditional Discharge. An individual is ineligible to receive a Conditional Discharge if the offence they are found guilty of carries a mandatory minimum sentence. Additionally, if the offence carries a maximum sentence of over 14 years in jail, a Conditional Discharge cannot be granted.
How will a Conditional Discharge Impact my Employment?
An individual with a Conditional Discharge can inform an employer that they do not have a criminal record. However, certain professions, such as teaching, require more thorough background checks of an individual’s police involvement. In such cases, a person must sign a waiver authorizing the employer to access information about a Conditional Discharge while applying for a job.
What is the Impact of a Conditional Discharge on Immigration Status?
Under Canadian immigration rules, any type of discharge is not considered a conviction. Therefore, receiving a Conditional Discharge (rather than a conviction) can be advantageous for someone who has been found guilty of an offence and has not yet obtained Canadian citizenship.
How can we help?
Our team at Zaidi Legal PC includes lawyers who have worked as Crown Prosecutors, providing us with a unique advantage in assessing cases from the prosecution’s viewpoint. This expertise enables us to identify the Crown’s strategy and build a strong defense strategy to protect our clients’ rights and interests.
If you want to benefit from our lawyers’ experience and expertise, please don’t hesitate to contact us to discuss your case. We are ready to assist you with any legal matter, and we are committed to achieving the best possible outcome for you.
The information presented in this blog post is thoroughly reviewed for accuracy and authenticity as of the date of publication, and is believed to be a reliable reflection of the law to the best of our knowledge. However, as the legal landscape is constantly evolving, we cannot guarantee the ongoing accuracy or completeness of this information beyond the date of publication. This material is provided for informational purposes only and is not intended to substitute for professional legal advice. Any actions taken based on the information contained on this website are undertaken at your own risk. It is always recommended to seek the advice of our team of legal professionals before making any legal decisions.
