Q: I was in court with a friend the other day. He entered a guilty plea to a minor criminal charge and explained himself. After hearing everything, the judge gave him a conditional discharge for a year. My friend didn’t have a lawyer with him, and no one explained what that meant. What is it?
A: In Canadian criminal law, once an adult person accused of a crime pleads guilty or is found guilty after a trial, there is a range of sentencing options open to the judge. Many crimes have a maximum sentence attached and some have a minimum. Others fall into a particular category where the judge has discretion.
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For the most serious offences there is jail, a fine or both. Jail terms vary with the severity of the offence, the particular facts surrounding the crime and the personal circumstances of the offender. All factors are considered by the judge.
The crime of robbery will usually draw a harder sentence if it is accompanied by violence. Sometimes the background of the offender or the victim will be factors in determining a sentence.
You will often hear the phrase “two years less a day” when talking about jail. All sentences of two years or more are served in a federal penitentiary. Sentences of less than two years are served in a provincial facility, usually with lower security and better surroundings. Taking one day off a sentence means the judge is giving the longest period of incarceration while still keeping the offender in the provincial jail system.
Fines can range widely. Some environmental offence fines can run into the hundreds of thousands of dollars. Again, most fines are straightforward. Most people who need time to pay their fines are given a reasonable period to do so.
For someone with little or no criminal record, and who appears unlikely to reoffend, probation is an option. This means the person stays out of jail as long as the conditions of probation are met. These generally include orders for the person to keep the peace and be of good behaviour and to report to the court when required. There are often special conditions, such as not drinking alcohol or visiting bars, or not having contact with certain people.
Discharges, such as your friend received, are somewhat related to probation. A discharge means that when certain actions or requirements are performed by the accused, that person will not end up with a criminal record even though he is guilty of a crime.
In sentencing, there are two types of discharge. A conditional discharge means there are conditions your friend must perform and if he does them, he will not end up with a criminal record.
Judges have wide powers to attach conditions to a discharge. These are set out in an order of probation. Your friend should have received a copy right after court was done. The conditions are set for a length of time, usually between six and 24 months. If he stays out of trouble and does what the judge ordered, then at the end of that specified time he ends up with no record.
However, it’s not a free ride. If he breaches these conditions, such as by committing another offence, the court can revoke the granting of a discharge, sentence him on the original offence, sentence him on the new offence or possibly deal with both the new charge and a charge of breach of probation.
The second kind of discharge is an absolute discharge. This one is preferable because there are no terms or conditions attached. There is no clawback available to the court if the person gets into trouble again.
Remember though, discharges are generally available only once in someone’s life, and if your friend gets into trouble again, he should expect a real sentence. It is a break from a judge and these are few and far between.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
