Canadian Criminal Sentencing/Available Sentences/Discharges

Legislation
The Criminal Codes describes the discharge as:

Effect
The discharge is not a conviction but rather the offence is discharged absolutely or conditionally with probation. In cannot be paired with a fine or jail. The end result is that there is no criminal record. No record may be disclosed to any person by a federal agency, except for the purpose of verifying fingerprints, without the consent of the Solicitor General after 1 year for a absolute discharge or 3 years for a conditional discharge.

Requirements
An offence punishable by less than 14 years and without minimum sentence, the offender may apply to the court for a "conditional discharge" if it is in the "best interests of the accused" and "not contrary to the public interest".

Best interests of offender
Generally speaking the effect of the criminal record would be disproportionate to the offence, such as where the offender cannot pursue their chosen profession, education would be affected , etc. The reason for discharge cannot be mere speculation.

The first factor of a discharge presupposes that the offender is of good character and so is without a prior criminal record.

It is generally preferred or sometimes necessary that the court have evidence of the consequence of a criminal record volunteer activities to support a discharge application.

Not contrary to public interest
A discharge does not have to be in the public interest, it simply must not be contrary to the public interest.

The second factor considers:
 * the gravity of the offence;
 * the frequency/prevalence of the offence in the community
 * the public attitudes to the offence
 * amount of planning of the offence
 * value of property (if property-related offence)
 * whether there was personal gain from the offence
 * the effect on the public confidence in the law

Where applied
Cases for a variety of offences have been considered:
 * possession of a weapon for a dangerous purpose (s.88)
 * break and enter
 * possession of marijuana (4(1))
 * theft under $5,000

Factors such as the accused's immigration status are valid considerations but are not determinative.

It is not prohibited to grant a discharge where a prior discharge has already been granted. Nor is it prohibited to grant a discharge where a prior record exists. Nevertheless the granting of a discharge in these cases is exceptional.

Absolute vs Conditional
An absolute discharge order discharges the offence without any additional requirements of probation. It is usually granted in the cases of lesser seriousness of offences or where the personal circumstances are exceptional.

Offences of violence
Without a prior record, a Court will grant a discharge for common assault. However, it should only be given in extraordinary circumstances. Assault causing bodily harm can be available for discharges in only limited circumstances.

Curative Discharge
The curative discharge is a sub-category of the discharge in relation to motor-vehicle offences.

This provision has not been proclaimed in BC, Ontario, Quebec, Newfoundland.

For a discharge to be granted, the following must be present:
 * 1) Court must hear evidence of a medical or similar nature;
 * 2) court must be of the opinion that the client is in need of curative treatment in relation to alcohol or drug use;
 * 3) court must be of an opinion that the discharge would not be contrary to the public interest.

Factors to consider on the issue of public interest include:
 * good faith of the accused
 * past criminal record
 * presence of a driving prohibition at the time
 * whether there was a previous discharge given

Other factors considered:
 * the necessary program is available
 * the program is likely to be successful
 * the accused is motivated to overcome alcoholism

Curative discharges are not appropriate where the charge occurred while the offender was subject to a previous treatment discharge.