Conditional sentences, probation, and discharges

If you’re charged with a crime and you plead guilty or a judge finds you guilty, the judge will decide your sentence. Your sentence could be:

• A discharge. The judge finds you guilty, but then discharges you instead of convicting you. Your discharge can be absolute (you won’t get a criminal record) or conditional (you won’t get a criminal record if you meet conditions the judge sets).

• A suspended sentence. The judge convicts you but suspends sentencing you, and instead releases you on conditions set out in a probation order.

• A conditional sentence. The judge gives you a jail term, but allows you to serve it in the community as long as you follow certain conditions. The conditions can include restrictions on your freedom (often called “house arrest”).

• A fine. The judge sets an amount of money you must pay to the court.

• A restitution order. The judge orders you to pay money to someone, usually the victim.

• A jail term. The judge sets a period of time you must spend in jail.

This information explains a discharge, a suspended sentence, and a conditional sentence.

A discharge means the judge finds you guilty, but then discharges you instead of convicting you.

There are two types of discharge.

An absolute discharge means your record won’t show a conviction. You will not be on probation.

A conditional discharge means your record won’t show a conviction if you meet conditions the judge sets. The conditions come in a probation order that can last from one to three years. The conditions can include that you:

• “keep the peace and be of good behaviour”

• stay in the province

• notify a probation officer of any changes in your job or address

• not contact certain people or go to certain places

• not drink alcohol or use (non-prescription) drugs

You may have to perform community service, give money back to a victim, or report to a probation officer periodically.

If you obey the conditions until the end of the probation period, your record won’t show a conviction. But if you don't follow the conditions of your probation, your conditional discharge can be taken back by the court and replaced with a conviction.

A discharge is usually available only for more minor offences and if you have no history of similar offences. You must convince the judge that a discharge is appropriate. The judge considers your character and whether a discharge is against public policy.

The police and courts keep records of discharges for a period of time. If the police check your record during this period, they might see your discharge. If you’re convicted of a criminal offence during this period, the court can consider your earlier discharge.

If you get an absolute discharge, the record of your discharge will be kept on file for one year.

If you get a conditional discharge, the record of your discharge will be kept on file for three years after the probation period is completed.

After the one- or three-year period, the RCMP must delete any record of your discharge from their records. No record of your discharge can be disclosed to anyone except in specific circumstances, such as if your fingerprints were found at the scene of a crime.

With a suspended sentence, a judge convicts you but suspends sentencing you, and instead releases you on conditions set out in a probation order.

Like with a conditional discharge, the probation order can last for one to three years. During that time, you must follow the conditions in the probation order. As explained earlier, the conditions can include that you “be of good behaviour,” stay in the province, and not contact certain people or go to certain places. You may have to perform community service, give money back to a victim, attend counselling, or report to a probation officer periodically.

You will have a criminal record

The main difference between a suspended sentence and a conditional discharge is if you get a suspended sentence, you have a conviction registered against you. This means you will have a criminal record. After some time, you can usually ask for a record suspension, which limits access to your criminal record, but even that won’t erase the conviction from your record.

The judge can give you other penalties

With a suspended sentence, probation may be the only penalty, or it can be combined with other penalties, including a fine or a jail term of less than two years. But a judge can’t give all three of jail, a fine, and probation. You could get the following combinations: a fine and probation, or jail and probation, or jail and a fine.

If you don’t follow the terms of your probation, several things can happen.

If you were given a conditional discharge, your discharge can be taken back by the court and replaced with a conviction. This means you would have a criminal record.

If you were given a suspended sentence, the court can bring you back to sentence you for the original offence.

As well, you can be charged with the criminal offence of “failing to comply with a probation order,” also called breach of probation. For example, if your probation order requires that you attend counselling, and you don’t, you can be charged with breach of probation.

If you’re convicted of breach of probation, the court can sentence you for the breach. Depending on the details of the breach and your criminal record, the prosecutor (the lawyer who presents the case against you) can choose to charge you with either a summary or indictable offence. There’s often a jail sentence for either type of offence. Judges view a breach of a court order as a serious matter.

A conditional sentence is a jail sentence you serve in the community, instead of in jail. You have to follow certain conditions, the same types as are used with probation orders. As well, a conditional sentence usually has conditions that restrict your freedom. For example, you might have to spend all or part of the sentence in your home (under “house arrest”) or have to obey a curfew. If you don’t follow the conditions, a judge can send you to jail for the rest of the time left on your sentence.

Judges use a conditional sentence only if they are satisfied you won’t be a danger to the community and you don’t have a history of failing to obey court orders. A judge can’t give you a conditional sentence if:

• the sentence is longer than two years,

• the law sets a minimum jail term, or

• the Criminal Code says the crime is not eligible for a conditional sentence.

If you get a conditional discharge, a suspended sentence, or a conditional sentence, the judge can also make other orders. The judge can:

• Make a no go order (or no contact order) to ensure you have no contact with a particular person or place.

• Prohibit you from having any firearms or other weapons, like knives.

• Order you to give a sample of your DNA for the DNA National Data Bank if the prosecutor asks for this.

• Make a compensation order allowing a person whose property you damaged to sue you in civil court.

A person convicted or discharged of a crime must pay a victim surcharge. The surcharge is:

• 30% of any fine you got, or

• if you didn’t get a fine, $100 for a summary (minor) offence or $200 for an indictable (more serious) offence.

The judge can also give you a higher surcharge. This surcharge is in addition to any other fine you get.

Even if you do not have money to pay the surcharge, the judge must still order it. But the judge can give you a long time (many years) to pay it. Or the judge can immediately find you in default for not paying the surcharge and give you a one-day jail sentence. But you may not have to go to jail, as the judge can find that you already served the jail time.

Under the Criminal Records Act, the RCMP must remove any record of a discharge from their records after a certain period of time.

The time period for an absolute discharge is one year from the sentencing date. For a conditional discharge, the time period is three years from when the probation period is completed.

After these time periods, the RCMP must remove the discharge from their records. (For discharges before 1992, you must make a written request to remove the discharge.)

If your discharge is still on your criminal record after it should be, visit rcmp.gc.ca for a form to request the discharge be purged from RCMP records.

Every country has its own rules about who it will allow to enter. US customs officers may turn away someone at the border due to a discharge or a probation order. If you receive a discharge, you may not want to try crossing the US border until your discharge record has been removed from police records.

Frustratingly, even though an absolute discharge must be deleted from RCMP records after one year has passed, it often shows on records accessed by US customs officers for up to three years.