What a discharge is
With a discharge, the judge finds you guilty but does not convict you. You are deemed not to have been convicted of the offence (s. 730(3)). An absolute discharge has no conditions. A conditional discharge comes with a probation order; if you complete it, the discharge becomes final.
Who can get one
- The offence must not have a minimum punishment, and must not be punishable by 14 years or life in prison.
- The judge must find that a discharge is in your best interests and not contrary to the public interest.
- Typical cases: a first offence, a minor theft, mischief, some assaults and drug possession, where a conviction would cause harm out of proportion to the offence (for example to a career or to immigration status).
Your record after a discharge
Under the Criminal Records Act, the record of a discharge must not be disclosed and is removed from the national police database (CPIC) one year after an absolute discharge and three years after a conditional discharge, without any application.
Local police files and court records can still exist. A vulnerable sector check and some foreign governments, especially for immigration or travel to the United States, may still ask about the finding of guilt.
If you breach a conditional discharge
If you break the probation conditions or commit a new offence during the probation, the court can revoke the discharge, convict you of the original offence and impose a sentence.
Questions people ask
Does a discharge give you a criminal record?
You are not convicted, so you do not have a criminal conviction. A record of the discharge exists for one year (absolute) or three years (conditional) in the national police database, then it is removed automatically.
Do I have to declare a discharge on a job application?
If the question is “have you been convicted of a criminal offence”, a discharge is not a conviction. Read the question carefully: some ask about any finding of guilt or pending charges.
Can I get a discharge for impaired driving?
Generally no. Impaired driving carries a mandatory minimum punishment, which rules out a discharge. In some provinces an approved treatment program can lead the judge to set aside the minimum, but the result is still a conviction.
Sources
General information on Canadian law, not legal advice for your situation. Rules change and differ between provinces: speak to a lawyer about your case.