10 September

“What does that mean…?”

By: Justin W. Yuen

“What does that mean…?” is by far the most common question I get asked on a daily basis. However, it is rarely asked in the context of explaining some convoluted legal jargon, rather it is almost an automatic question when considering the possible dispositions of a Criminal matter.

The common misconception of Criminal charges is that there are only two outcomes: guilty or not guilty. In reality there are several possible outcomes, this post will address the most frequent dispositions that are allowed under the Criminal Code, starting from the least restrictive to the most severe forms of punishment. This post only acts a rough guideline to the different possible outcomes, it does not and cannot replace the advice of experienced counsel. Each accused background, circumstances and particular set of charges will determine which kind of disposition is available and appropriate.

The Crown Attorney will most often withdraw or stay the charges when there is either no reasonable prospect of conviction (RPC) or if it is no longer in the public interest to proceed. In both circumstances, it means that you no longer have to go back to the Court and the case is finished (including any recognizances or orders you may be on). However, there is one big difference, a withdraw means the charges are completely finished, whereas, a stay carries with it a one year grace period where if you are charged with new Criminal offences, the Crown can choose to reopen the stayed charges and continue the prosecution against you (albeit, this rarely occurs).

Absolute Discharge
An absolute discharge is the lowest form of sentence available. There is a formal finding of guilt, meaning the facts of the offence are admitted which makes out the essential elements of the offence, however, there is no conviction. With an absolute discharge there are no terms of probation or any conditions that have to be followed. An absolute discharge will stay on your Criminal Record for a grace period of one year, there is no need to apply for a pardon, the absolute discharge will be automatically removed.

Conditional Discharge
Similarly to an absolute discharge, there is a formal finding of guilt, however there is no conviction. Unlike an AD, a conditional discharge includes a period of probation ranging from one to three years where the Judge will clearly specify a set of conditions that have to be followed. Failure to do so can result in further Criminal charges. A conditional discharge will stay on your Criminal Record for a period of three years, after which you will have to apply for a pardon for it to be removed.

A fine carries a formal finding of guilt and a conviction. It can be ordered either in lieu of or in addition to any terms of a suspended sentence, intermittent sentence, conditional sentence, and imprisonment. It cannot be given on top of an absolute discharge, or a conditional discharge, because despite the formal finding of guilt, a conviction has not been registered. The Court will give a period of time to pay the fine, failure to do so might result in additional criminal charges. If you are unable to pay the amount in the allotted time, you can ask to have a hearing in front of Judge to ask for more times, most Judges will consider a time extension as long as there have been some valiant efforts made in paying the Court and with reasons as to why more time is required.

Suspended Sentence
A suspended sentence occurs when there is both a formal finding of guilt and a conviction. Initially, a suspended sentence is not considered a final disposition. The Judge is ordering that the Offender’s sentence will be temporarily postponed, meaning the individual is obliged to follow conditions that can last for a period of one to three years. If they successfully abide by all the terms the Judge is unlikely to order or re-sentence the Offender to a period of incarceration. However, if they breach any of the conditions, not only can the Offender be charged with failure to comply with probation, the Judge may revoke the suspended sentence and choose to re-sentence them. A suspended sentence will result in a criminal record and you will have to apply for a pardon to have it removed.

Intermittent Sentence
An intermittent sentence is a formal finding of guilt and a conviction is registered. The Judge can order that the Offender serve their sentence during the weekends if the period of incarceration is less than ninety days. The Judge will clearly order when the Offender will turn themselves in, where they will remain in custody until the arranged time when they are to be released. This will continue on a weekly basis until their sentence is complete. Judges are typically understanding when tailoring the entry and exit times to suit the Offender’s schedule whether it be for work or school or other special circumstances. In addition the Judge will order that the Offender be bound by a probation order, with certain conditions to be followed at all times whether in or out of custody, this order can last from one to three years. In most circumstances, the probation order will be lengthier and surpass the period of intermittent sentence. An intermittent sentence is most often considered when the Offender has gainful employment which they are at risk of losing if they were to be incarcerated during the week.

Conditional Sentence
A conditional sentence follows a formal finding of guilt and conviction. The Judge may consider a CS where the term of imprisonment is less than two years, with no statutory minimum jail time. The distinguishing fact with CS unlike an intermittent sentence or imprisonment, is that the sentence is served in the community rather than in jail. This means that the Offender will be allowed to serve their sentence with strict house arrest, alongside a list of conditions to follow under the supervision of a probation officer. If the Offender is found to have breached any part of the order, or committed a new offence, a Judge will preside over a hearing to determine whether the Offender will be ordered to serve the remaining sentence in jail.

This last category occurs when the Offender has been found guilty with a conviction and the Judge orders that the Offender serve his sentence in custody. Where the accused is sentenced to a term of incarceration that is two years less one day, it will be served in a provincial institution. Any period of time that is two years or more will be served in a federal penitentiary.

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