When you go to court in Canada for a criminal offence you will either be found guilty or not guilty. This is the most basic description of the possible outcomes following an arrest. But in reality the various possibilities are more complicated than that. One of those possibilities is that you may receive a discharge. You can think of a discharge as being somewhere in between a guilty verdict and a non guilty verdict. It’s strange but true.
With a discharge the accused has been found guilty of the crime but – for various reasons – was not convicted of the crime.
What is the point of a discharge?
The conditional and absolute discharge exists because there are situation in which it is clear that the person who was arrested is guilty of the crime but where it would serve no public interest to convict the person and give them a criminal record.
There are many reasons this may be the case but generally the discharge is used for situations that are not terribly serious. Suppose, for instance, someone was arrested for possession of marijuana. Now imagine the accused was a single parent struggling to support their family and it was clear that a permanent criminal record would result in the loss of the person’s job. Since marijuana today is legal it is no longer a problem but prior to legalization good people were being given criminal records for no good reason whatsoever.
In a case like this the judge would have the option of giving a discharge since there would be no public interest in ruining the person’s life over such a trivial matter. Add to it the fact that the children would suffer as a result of the parent having a criminal record and it’s clear that there is no benefit to the state by saddling the person with a conviction.
The simplest was to think about a discharge verdict is that there are some cases (actually there are lots of cases) that go to court that aren’t terribly serious matters. Perhaps the accused simply made a mistake that was grossly out of character. If no one was hurt in the incident a discharge would be warranted.
Criminal Records Following a Discharge
The good thing about a conditional or absolute discharge is that the criminal record will be removed from CPIC automatically:
- A conditional discharge will appear on a person’s federal criminal record for a period of 3 years.
- An absolute discharge will appear on a person’s federal criminal record for a period of 1 year.
The record will stay starting from the date that it was ordered. Conditional discharges require that the offender meet certain requirements otherwise the discharge may be rescinded in favour of an actual conviction.
Today, discharges are purged automatically from the RCMP system after the required waiting period has expired. However, prior to July of 1992, offenders actually had to submit a purge request to the RCMP to have their discharge removed from their criminal record.
How to Purge the Record of a Discharge
If you received a discharge prior to July 1992, your discharge is still showing on CPIC and anyone performing a background check on you will see it (including US Customs and Border Protection). Remember that a discharge is still a guilty finding and you are likely to be refused entry to the United States and told to apply for a waiver if it is still on your record.
People who received discharges after 1992 are not totally in the clear, however. I have had numerous files cross my desk where a discharge was showing up on their criminal record.
The lesson is that you should never take anything for granted and always verify that your discharge was properly purged. One really good way of doing this is by having a set of fingerprints certified. This is the only sure way of knowing exactly what your criminal record contains.
Keep in mind that a discharge is not only held at the national level on CPIC. The arresting police and the courts also hold records of the arrest and court appearance. It is very important to apply to have these records destroyed (especially in Quebec where courts allow the general public to search their system) if you want to be sure to remove all traces of your past indiscretion and to prevent the discharge from showing up on local police indices checks.
I hope I have clarified the issue somewhat here but if anyone has any additional questions please feel free to get in touch with a counsellor at 1-866-242-2411.