A conditional discharge is a legal sentencing outcome in the Canadian justice system where an individual found guilty of an offence, including sexual assault, may be allowed to avoid a criminal record provided they meet certain conditions. The court imposes these conditions under Section 730 of the Canadian Criminal Code.
The court may sentence an accused to a conditional discharge as a sentencing option for a very minor sexual assault charge. One example where a judge may consider a conditional discharge as a sentencing option for a sexual assault, might be where an accused very briefly touched a woman’s clothed buttocks in a bar setting. For more serious sexual assault charges, a conditional discharge is generally contrary to the public interest and judges will not consider a conditional discharge sentencing option. A defendant will invariably face a jail term for any sexual assault beyond the most minor and non-aggravated factual situations, ranging from days in jail to many years depending on the severity of the sexual assault.
Understanding Conditional Discharges
A conditional discharge is an option that allows a judge to sentence a defendant without giving them a criminal conviction, provided that the individual complies with specific conditions set by the court for a defined period. This period is known as probation, during which the individual must meet certain conditions, such as reporting to a probation officer, undergoing counseling or community service, as outlined in their probation order.
Key aspects of a conditional discharge include:
- A conditional discharge is still a formal admission of guilt
- No criminal conviction on your record
- The defendant must follow the conditions prescribed in a probation order to avoid a criminal record.
- The discharge is conditional upon the successful completion of the probation period.
Role of the Judge and Criteria for Sentencing
The judge during a sexual assault sentencing hearing will decide whether to grant a conditional discharge. They must assess the nature of the crime, the character and background of the defendant, and how a conditional discharge may affect the public interest and the principles of justice. Under s. 730(1) of the Criminal Code, if the court considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused (i.e., giving him or her a criminal record), the court may by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under s. 731(2). It is generally unheard of to grant an absolute discharge for even the most minor or non-aggravated sexual assault such as the buttock touching example above.
Key considerations for sentencing include:
- The offender’s past criminal record or lack thereof.
- The offender’s character and background. In other words, are they a person of previous good character?
- The severity and circumstances surrounding the crime
- Potential for the offender’s rehabilitation.