A conditional sentence is given when someone is convicted of an offence, and the court allows the person to serve the sentence in the community, rather than in jail, as long as they obey some conditions (hence the name). These conditions may include a curfew, keeping the peace, and not being in possession of weapons, drugs or alcohol, among others. If a person breaches any of these conditions he or she is usually sent to jail to serve out the rest of the sentence. Conditional sentences are only available where the sentence is under two years and where the offence has no minimum mandatory jail term. A conviction resulting in a conditional sentence is still a conviction and will appear on a person's criminal record.
A conditional discharge occurs when a person is found guilty but the judge enters a discharge instead of a conviction. There are two kinds of discharges; conditional and absolute. A conditional discharge comes with requirements such as probation, counselling, etc. which must be fulfilled before the conviction is discharged, whereas an absolute discharge is immediate. If the conditions are not fulfilled, then the person is convicted of the original offence and sentenced accordingly.
Unlike convictions, discharges do not appear on a person's criminal record. Also, a person who receives a discharge can honestly say that they have never been convicted of a criminal offence, which can be very helpful in an employment or immigration context.
While a guilty person should always consider asking the court for a discharge, the court will only grant a discharge where the test, set out in section 730 of the Criminal Code, is met:
- must be in the accused person's best interests; and
- must be not contrary to the public's interests.
Discharges are granted most often where the offender has no criminal record, the offence is minor and the offender has taken steps to ensure that he or she will not re-offend in the future.