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What is an Absolute Discharge ?
By: Jillian Williamson
An absolute discharge is a sentence imposed by a judge which results in no criminal conviction on your record.
A judge can only impose a sentence after a finding of guilt has been made. This can occur if you are found guilty after trial or if you enter a guilty plea and proceed directly to sentencing. The sentencing judge has a number of options available to impose for sentence. Certain types of for example robbery & violent offences automatically start with jail sentences but other offences can result in a discharge either absolute or conditional. An absolute discharge is an immediate discharge from the finding of guilt with no convictions. No criminal conviction will appear on a criminal record check. A conditional discharge requires a period of time where you are on a court order with conditions you must satisfy prior to discharge. A number of factors are considered by a sentencing judge in order to determine whether a discharge is appropriate. These include:
- The nature of the crime
- The circumstances in which the crime was committed
- Your personal circumstances
- The public interest
The legal test for a discharge is whether it is in your best interests and not contrary to the public interest.
It is important to note that an absolute discharge will still appear on your criminal record for a year but after that time period, no member of the public will see that you were charged with a crime. Once an absolute discharge is imposed by a judge there will be no further impediments to your life including travel. It will have been as if you were never charged with an offence.
Am I Eligible for an Absolute Discharge?
The reality is that very few people are eligible for or granted an absolute discharge. Being found guilty of certain types of crimes will automatically disqualify you from both types of discharges. These offences include but are not limited to:
- Violent assaults
- Some drug offences
- Most sexual offences
- Regulatory offences
Conditional Discharges are far more common than absolute discharges. If a discharge is being discussed this means you have been found guilty of a criminal offence. Leniency in the form of an absolute discharge is very rare in criminal courts. An absolute discharge is such a rare form of sentence that is considered only in unique and exceptional circumstances. Some factors may include:
- Very minor offence allegations
- There were extenuating circumstances
- The offence caused no loss to other people or to property
- You have voluntarily taken steps towards rehabilitation (e.g. taken counselling)
- You have made a contribution in some form to the general community (e.g. community service or charity work)
In addition to these circumstances, you will usually only be considered for an absolute discharge if you:
- Have no prior criminal record
- Have never been charged with a crime before
- Have never been granted a discharge before
- Are deemed to pose no risk to others if your conviction is not made public
When deciding this, the judge will consider the pros and cons of your conviction being a matter of public record. When the court considers the public interest, the court will consider sentencing principles as set out in the Criminal Code. These include denunciation and deterrence. If the crime you have pled guilty to is common then denunciation and deterrence may be factors that push the Court into concluding that a discharge would be contrary to the public interest because keeping a conviction on your record would help to deter you and denounce your conduct to others. However, a smart and capable lawyer will assess your case and obtain information from you in order to make the best legal argument possible to the Court.
Finally, other examples where a discharge would not be considered are cases of fraud, deceive and or taking advantage of other people. Courts often are persuaded to protect employers and other individuals/organizations from future criminal behaviour by making your crime a matter of public record.
How do I Apply for an Absolute Discharge?
This is a difficult argument to build and even more difficult to persuade a judge to grant. We recommend retaining an experienced and strategic criminal lawyer to assist. Before a discharge can be granted, a guilty plea on an offence (discharge eligible) must be tendered and accepted. Typically, a legal brief is submitted to the court which will set out the applicable test, jurisprudence with similar factors to your case and then an application of the law to your case so that the judge will have an analytical path to decide that a discharge is in your best interest and not contrary to the public interest. If your case is minor and not common in the community then the sentencing options the prosecutor seeks may not achieve denunciation and deterrence. If this is the case, it could be argued that a discharge should be granted because a conviction is not making the community safer and it is a disproportionate sentence to you because of the life-long impacts.
Your lawyer should obtain multiple items from you to make the best case for a discharge. This includes but is not limited to:
- Character reference letters
- Employment listings for jobs in your employment area
- Completed program certificates
- Letters from your counsellor
- Proof of volunteer work
Any type of discharge is a favourable outcome post-conviction. It is important to make the best case possible to the judge in order to meet the legal test that the Court will consider.
If you have been charged with an offence then contact Alberta Legal today. We are serious lawyers who defend serious allegations every single day.