Absolute and Conditional DischargesAndrew Captan
Section 730 permits a judge to make a finding of guilt but not register a conviction against the offender. By imposing a discharge, the court avoids imposing the full impact of having a criminal conviction on the offender’s record for those who are “of good character, without previous conviction.” A discharge is particularly appropriate in cases where being charged and tried will be sufficient deterrent and denunciation to address the conduct at issue and for those who will suffer disproportionate consequences (usually associated with loss of employment) if “convicted.” A discharge does not qualify as a “previous conviction.”
While not a conviction, a discharge is a record under the Criminal Records Act (CRA). Pursuant to s. 6.1 of the CRA, all reference to a discharge is removed from CPIC (the record retrieval system maintained by the RCMP) automatically after one year for an absolute discharge and after three years for a conditional discharge. The CRA only applies to federal authorities such as the RCMP. Courts and other police forces need not remove records of a discharge unless required to do so by provincial or municipal law.
Discharges are not available for any offence where there is a minimum sentence or for any offence punishable by 14 years’ or life imprisonment. Discharges are not available to corporations.
Travel or Immigration Implications
It would seem that the American border officials have access to the automatic criminal conviction records retrieval system (C.P.I.C.). It is likely that they can identify the criminal record of any Canadian who is attempting to enter the United States – even people who have received a discharge.
It is also important to note that Americans do not have absolute or conditional discharges in their criminal justice system and therefore may not recognize discharges as a lower form of punishment.
Therefore, there is no guarantee how the American border official will react when dealing with a Canadian who has received a discharge. In reality, the nature of the charge itself (i.e., charges that are drug-related or violent in nature) may be more relevant to the American border official than whether the person received a discharge for committing the offence.
Offenders who receive a conditional or absolute discharge who are looking to travel to the US should confirm with CPIC that their record has been removed from the system prior to attempting to cross the border. Otherwise, they risk being denied entry and the charge being permanently retained in the US database.
With respect to employment, although a person can honestly say they have never been convicted of a criminal offence in the case of a discharge, it should be noted that the discharge results from a finding of guilt that is recorded in the automatic criminal conviction records retrieved system (C.P.I.C.) until the above periods of time have expired. Therefore, there are no guarantees that a prospective employer will not find out about a person receiving a discharge as a punishment in a criminal matter. However, an employer will NOT have access to this information unless YOU sign a waiver giving this employer access to this information as it is deemed private and confidential. Those waivers are a requirement for certain jobs such as teachers, childcare workers, etc…
If a person does have an absolute or conditional discharge, it is a good idea to have your records searched upon the completion of the above noted time periods to confirm that the records have indeed been removed. This is especially advisable where the person may have particular concerns about his or her record being checked for such purposes as employment and/or immigration.