Obviously you will succeed in avoiding a criminal record for an offence if you are found not guilty of it after a trial.
There are, however, some less obvious paths to avoiding a criminal record. Depending on the type of offence you have been charged with and the alleged circumstances of that offence, avoiding a criminal record can be achieved by:
- Alternative Measures/Diversion. Persuading the Crown to resolve your case using alternative measures (diversion).
- Absolute/Conditional Discharge. Obtaining an “absolute discharge” or a “conditional discharge” from the court either after pleading guilty to an offence or being found guilty of an offence after a trial.
- Alternative Dispositions. Resolving your case by way of an alternative disposition (e.g., a peace bond or a guilty plea to a non-criminal offence)
1. Alternative Measures/Diversion
The court system offers an accused person only two choices: (1) plead guilty and be sentenced; or (2) plead not guilty and be tried.
The Criminal Code, however, permits the Crown to “divert” an accused person out of the court system and into an approved program of “alternative measures” – hence the term “diversion” is used interchangeably with the term “alternative measures” – provided the accused is prepared to admit that he committed the offence. Alternative measures programs are rooted in the concept that in some cases alternative measures can appropriately and effectively address the harm done to the community by an offender and at the same time allow an offender to accept responsibility for criminal conduct and be rehabilitated. In other words, it is not always necessary to convict an offender to serve the interests of society.
Generally, alternative measures can be used to resolve a wide variety of offences. Some notable exceptions, not surprisingly, are offences such as murder, attempted murder, aggravated assault, criminal negligence causing death, and firearms offences carrying minimum mandatory sentences. Ultimately, the decision to refer an accused person to an alternative measures program is entirely within the Crown’s discretion. The accused does not have a right to have his or her case referred to alternative measures, and is wise to rely on good criminal defence counsel to put forth the strongest case for using alternative measures.
To participate in an alternative measures program, an accused person must admit to having committed the alleged offence, and agree to complete whatever program is recommended by a supervising probation officer. The accused will succeed in avoiding a criminal record for the offence upon successful completion of the recommended program.
What are the actual “alternative measures”?
Alternative measures may include one or more of the following:
- paying restitution to victims of the offender’s crime to compensate the victims for losses (e.g. damage to property or the cost of replacing stolen property)
- performing community service
- writing an apology to victims
- participating in counselling programs or courses.
Upon an offender’s completion of an alternative measures program, the Crown will stay all charges, effectively ending the prosecution, and offender will succeed in avoiding a criminal record for the offences charged.
Where an accused has pleaded guilty to an offence or had a trial and been found guilty, he or she can avoid a criminal record if the sentencing judge orders either an absolute or conditional discharge in respect of the offence.
Effect of Discharge
Under Section 730(3) of the Criminal Code, an offender is deemed not to have been convicted of an offence if he or she has been discharged of that offence. A discharge leaves no record of conviction, and an offender can legally and legitimately say to an employer or anyone else that he or she has not been convicted of the offence.
Revocabilty of Discharge
An absolute discharge is irrevocable and effective immediately, whereas a conditional discharge can be revoked. The conditions of a conditional discharge are set out in a probation order and in force for the duration of the order. When the discharge is ordered, the judge specifies the duration of the period of probation and the conditions attached to it. If the offender breaches any of the conditions, the court can later revoke the discharge.
Eligibility for Discharge
An offender is not eligible for a discharge, either absolute or conditional, for an offence punishable by a minimum sentence or by a maximum sentence of 14 years or life.
These are some offences for which an offender cannot receive a discharge:
- robbery (maximum sentence of life imprisonment)
- breaking and entering (maximum sentence of life imprisonment)
- aggravated assault (maximum sentence of 14 years)
- sexual interference, sexual assault of an underage person (minimum sentences of 90 days or 6 months apply)
- sexual assault by indictment (minimum sentence applies)
Where a discharge is legally available, a judge may order one if the following requirements are met:
(a) it is in the accused’s best interest to be discharged; and
(b) it is not contrary to the public interest to grant a discharge
It is not usually difficult to persuade a judge that it is in a person’s best interest to be discharged. Avoiding a criminal record is in practically everyone’s best interest. The more difficult requirement is persuading the judge it is not contrary to the public interest to grant a discharge. Generally, the more serious the offence the less likely a discharge will be ordered. Courts are concerned about the message that might be sent by discharging offenders of more serious offences, and are more likely to impose more onerous sentences for serious offences.
A discharge is not normally given to someone who either already has a criminal record or is not otherwise of good character, and is rarely given to someone who has previously received a discharge.
3. Alternative Dispositions
Sometimes the Crown can be persuaded to resolve charges by letting an accused person plead guilty to a non-criminal offence or imposing restrictions on an offender that do not involve a criminal conviction. In spousal assault cases, for example, the Crown will sometimes let an accused person enter into a peace bond under Section 810 of the Criminal Code, which does not involve pleading guilty to any offence and does not result in a record of conviction.
For impaired driving or dangerous driving offences, the Crown will sometimes stay criminal charges and let the accused plead guilty to an offence under the Motor Vehicle Act such as driving without due care and attention contrary to Section 144(1).
In cases where a person has been charged with careless storage of a firearm, the Crown will sometimes stay the criminal charge if the accused agrees to a firearms prohibition order under Section 111 of the Criminal Code, which does not result in a record of conviction.
Whether one of these alternative dispositions is ultimately used to resolve criminal charges depends on the unique circumstances of each case and the ability of defence counsel to persuade Crown that an alternative disposition is fair and in the public interest.