OPINION: ‘The defendant will plead guilty to the charge of **** and seeks that no conviction be entered. An application for a discharge without conviction will be made and a hearing date is sought” is a frequent catechism made by defence counsel.
A discharge without conviction allows a person who has pleaded guilty or been found guilty of an offence to avoid having a criminal record. The court can discharge the person without entering a conviction pursuant to section 106 of the Sentencing Act, which means the person is not legally considered to have committed the offence. It is the equivalent of an acquittal. However, the court can still impose conditions, such as paying reparation, attending counselling, or performing community work.
A discharge without conviction can have significant benefits for a person who has committed a minor or first-time offence. Some of the advantages are:
- It can prevent the person from facing negative consequences in their employment, education, travel or immigration status. Some employers, educational institutions, or countries may not accept people with criminal records, or may require them to disclose their convictions.
- It can protect the person’s reputation and privacy. The person does not have to reveal their discharge to anyone, unless they are asked by a court or a police officer.
- It can encourage the person to rehabilitate and avoid reoffending. The person can benefit from the support and guidance of the court-ordered conditions or orders such as counselling or community work. The person can also avoid the stigma and discrimination that may come with having a criminal record.
The only problem is that over recent years, discharges without conviction have been granted for offences that are not “minor”. These include burglary or assault with a weapon.
The court must consider several factors before deciding whether to grant a discharge without conviction. Some of the factors are:
- The nature and seriousness of the offence. The court is less likely to grant a discharge for a violent or sexual offence or an offence that caused significant harm or loss to the victim or the public.
- The personal circumstances and character of the person. The court may consider the person’s age, background, health, employment, family or community ties, as well as their previous criminal history, if any.
- The impact of a conviction on the person. The court may consider how a conviction would affect the person’s future prospects, opportunities or responsibilities, as well as their mental or emotional wellbeing.
- The interests of justice and the public. The court may consider whether a discharge would be consistent with the purposes and principles of sentencing, such as holding the person accountable, denouncing the offence, deterring others, or promoting the rehabilitation of the offender.
The person who seeks a discharge without conviction must satisfy the court that the direct and indirect consequences of a conviction would be out of proportion to the gravity of the offence. This is a high threshold, and the court has a wide discretion to decide whether to grant a discharge.
If the government were to be serious about strengthening law and order and providing for victim satisfaction it should tighten the provisions of section 106 so that discharges without conviction would be available only for offences carrying a maximum of three months’ imprisonment.
It should be restricted to some fineable-only offences. In this way, only truly minor infractions would warrant a discharge and offenders charged with more serious offences would have to take responsibility for their actions.
David Harvey is a retired district court judge.
