R. v. C.C.J.

(Rocky Mountain House, Court of Justice - Assault). JCC was charged with assault in relation to an incident that involved, by the time of trial, a former domestic partner and that partner's family member. Similar to many domestic assault allegations, alcohol was definitely a factor. While alcohol was a factor and definitely may have impacted JCC"s credibility and reliability had the trial progressed, JCC nevertheless had a very meritorious defence. As a result, the Prosecutor offered to resolve JCC's case by way of a "conditional discharge". 

A discharge is a sentencing option where the accused is found guilty of the crime, but not permanently "convicted" of the offence. Therefore, the most significant aspect of a discharge is the non-imposition of a permanent criminal record. In Canada, discharge as a sentencing option is recognized pursuant to s. 730 of the Criminal Code. There are two types of discharge: absolute and conditional. 

"Absolute discharge" is a rarely used sentencing option. It is only applied in non-serious (borderline trivial) criminal cases. In the experience of this Calgary defence lawyer, absolute discharge most often occurs after trial, in circumstances where the trial judge exercises reasonable doubt in sentencing the accused. It is unusual for Prosecutor's to agree to absolute discharges or for courts to impose them after a contested sentencing hearing as part of a guilty plea. The most common discharge used to resolve cases is a "conditional discharge".

The difference between and absolute discharge and a conditional discharge is that the former is imposed and earned without conditions. A "conditional discharge" is always accompanied by a term of probation, with conditions for the accused to abide-by and complete. Where absolute discharge falls off the accused's criminal record by way of an automated process after 12 months (1 year), a conditional discharge remains as part of an accused's criminal record of 36 months. Part of the reasons for this time period is that conditional discharges can carry as high as 3 years probation. 

The value of a discharge is that the accused will not shoulder a permanent criminal record. Conditional discharges often come with terms to include counselling and no-contact. The reason JCC accepted the offer to resolve by way of a conditional discharge was to avoid the risk of losing the trial and being pinned with a permanent criminal record. While JCC's case was certainly defensible, the Prosecutor also had a reasonable chance of conviction.

David Chow is a Calgary criminal lawyer and Alberta defence lawyer who defends criminal cases throughout the Province. David routinely successfully defends clients charged with serious cases of domestic violence. Domestic assault is one of the most common charges occurring in criminal law courts across Alberta.