Available as a podcast!
The Canadian Criminal Code gives similar names to two very different sentences. This leads to media reports that someone was sentenced to a conditional discharge when they actually got a conditional sentence order, or the reverse. And that leads to people misunderstanding what our courts are doing.
So what’s the big difference? A conditional discharge permits a person to avoid a criminal record if they follow the rules of a probation order. A conditional sentence is a jail sentence served in the community. If a person doesn’t follow the rules of a conditional sentence order they can be ordered to spend the rest of their sentence incarcerated in a jail.
What are the requirements for each type of sentence?
A discharge is a form of sentence available for a less serious offence. A person may receive a discharge if they are of previously of good character (usually that means having no criminal record) and the offence is out of character for them. The law requires that the judge be satisfied it is “in the best interests of the accused” and “not contrary to the public interest” for the offender to be discharged, rather than convicted of the offence. For example, a minor theft case may result in a conditional discharge for a first offender, particularly if there are compassionate circumstances or psychological factors involved.
A person may be discharged absolutely with no rules imposed, although this is done rarely. When a conditional discharge is granted, the judge places the person on probation for up to three years, and imposes conditions (rules) that may include hours of community work service, counselling or rehabilitation programs, and restrictions on where the offender can go and who they can have contact with.
If an offender completes their probation successfully a conviction for the offence will not be recorded on a criminal record. However, a sentencing judge could be told about the discharge if the offender reoffends. If an offender breaks the rules of their probation order they can be charged with a new criminal offence for disobeying a court order, and if found guilty, sentenced to jail. They can also be re-sentenced for the original offence.
Conditional sentence order
Parliament has dictated in the Criminal Code that imprisonment of any kind is a last resort, so there must be a serious offence, a criminal record or other aggravating features before a jail sentence is imposed. It is up to the prosecutor to prove there are aggravating factors in each case. If the Crown establishes that the offence is one for which a jail sentence of less than two years is appropriate, the judge is then required by the Supreme Court of Canada to consider whether the sentence may be served in the community as a conditional sentence.
The Criminal Code sets out various requirements for a conditional sentence. First, the judge must be satisfied that it would not endanger the safety of the community for the offender to serve a sentence in the community. Next, a conditional sentence must be consistent with the fundamental principles of sentencing set out in the Criminal Code. Those principles include the fundamental purpose of contributing, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. Finally, a conditional sentence is not available for various specified serious offences.
Conditional sentences are jail sentences served in the community. They generally contain significant restrictions on the liberty of the offender, and can even be more onerous than a jail sentence because conditional sentences tend to be longer than jail sentences for equivalent offences.
Conditional sentence orders will contain rules, often including house arrest or curfews, reporting to a supervisor, and rehabilitative terms to address issues like substance use – for example, participating in full-time attendance treatment or programs that might not be available in jail. Offenders battling substance abuse disorders sometimes ask for a conditional sentence placing them under house arrest at a treatment facility and this can be an effective route to rehabilitation. People serving conditional sentences are also frequently required to do something to "pay back" the community, such as community work service, restitution, and other kinds of reparation.
The Criminal Code sees these sentences as a category of imprisonment, and penal in nature. If a person disobeys a conditional sentence order they are arrested, and may be required to serve the remainder of the sentence in jail.
See the FAQ for questions about criminal matters in Provincial Court.
This article provides general information only and should not be used authority in court proceedings or as a substitute for legal advice.