Script 203 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

This script explains the following three penalties, called “sentences,” that a court can give you if it convicts you of a crime under the Canadian Criminal Code or Controlled Drugs and Substances Act:

• a conditional sentence
• probation
• a discharge

The script does not:

• cover sentences under other federal laws (for example, the Fisheries Act) or provincial laws (for example, the Motor Vehicle Act); in those cases, the options for penalties are different and probation works differently.
• explain other possible sentences–fines, jail, or licence suspensions.
• apply to anyone under 18 years old; for information about young people and criminal law, refer to scripts 225, called “Young People and Criminal Law” and 226, called “Youth Justice Court Trials.”

If you’re charged with a criminal offense, talk to a criminal defense lawyer before you plead guilty or admit anything to the police or prosecutor. A lawyer can tell you if you have a defense to the charge, and then you can decide what to do. Also, refer to scripts:

• 211, called “Defending yourself against a criminal charge” 
• 212, called “Pleading guilty to a criminal charge”
• 205, called “Criminal records and applying for a pardon”

What is a conditional sentence?
A conditional sentence is a jail sentence that you serve in the community, instead of in jail. Judges will use a conditional sentence only if they are satisfied that you won’t be a danger to the community. This sentence usually has strict conditions, including a curfew. A judge can’t give you a conditional sentence if the sentence is longer than two years or if there is a minimum jail term. If you disobey the conditions, a judge can send you to jail for the rest of the time left on your sentence.

What is probation?
Probation is a penalty a judge can give you that requires you to follow certain conditions for a set time that can last up to 3 years. During that time, you must follow the terms of the probation order. Usually, that means you must keep the peace, be of good behaviour, report regularly to a probation officer, and keep the probation officer informed of your current address. Depending on the offence, you may also have to report to a probation officer periodically, avoid certain people, avoid using alcohol and drugs, attend counseling, pay back damages you caused to the victim, or perform community service. The judge still convicts you of the offense, but then suspends the sentence and releases you on probation. 

Probation may be the only penalty, or it can be combined with other penalties, including a fine, a discharge, or a jail term less than 2 years. But a judge can’t give a person all three penalties of jail, a fine, and probation. You could get the following combinations: a fine and probation, or jail and probation, or jail and a fine. The Judge may also order you to perform up to 240 community service hours and receive counseling.

If you don’t follow the terms of your probation, you can be charged with breach of probation. If you’re convicted of breach of probation, the court can cancel your probation and sentence you for both the original offense and breach of probation. The usual penalty for breach of probation is a jail term.

 What is a discharge?
A discharge means that the judge finds you guilty, but then discharges you instead of convicting you. A discharge is usually only available for more minor offences and if you have no criminal history. You have to convince the judge that a discharge is appropriate. The Judge considers your character and whether a discharge is against public policy. 

There are two types of discharge: absolute and conditional. Most discharges are conditional. A conditional discharge means you’re on probation with conditions (described above). If you obey your probation conditions until it ends, then you will have no criminal record. But if you don’t follow the conditions of your probation, or you don’t finish it, you can be charged with breach of probation.

An absolute discharge means that you immediately have no criminal record.

The police and courts keep records of discharges under the Criminal Records Act. If you’re convicted of a criminal offense later, the court can consider your earlier discharge. And if the police check your record, they might see your discharge. The RCMP removes from its records absolute discharges after one year and conditional discharges after three years. If you want to ensure they remove your discharge, get more information from their website at www.rcmp.ca/crimrec/pandp_e.htm. Refer to script 205, called “Criminal Records and Applying for a Pardon,” for more information.

What other orders can a judge make?
If you get a conditional sentence, probation, or a conditional discharge, the judge can also make a “no go order” (or no contact order) to ensure you have no contact with a particular person or place. And the judge can prohibit you from having any firearms or other weapons, like knives.

[updated July 2007]

Dial-A-Law© is a library of legal information that is available:

• by phone, as recorded scripts, and
• in writing, on the CBA BC Branch website.

To access Dial-A-Law, call 604.687.4680 in the lower mainland or 1.800.565.5297 elsewhere in BC. Dial-A-Law is available online at www.cba.org/bc in Public & Media.

The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. Dial-A-Law is funded by the Law Foundation of British Columbia and sponsored by the Canadian Bar Association, British Columbia.

© Copyright 1983-2007 Canadian Bar Association, British Columbia