Diversion, Withdrawn Charges and Discharges in Canada

Not every criminal charge ends in a conviction. In Canada, a charge can be withdrawn or stayed by the Crown, resolved through diversion or alternative measures, resolved with a peace bond, or end in an absolute or conditional discharge after a finding of guilt. None of these outcomes is a criminal conviction. Under section 6.1 of the Criminal Records Act, records of an absolute discharge cannot be disclosed from federal records after one year, and a conditional discharge after three years, and they are removed from the national police database (CPIC). Records of charges, fingerprints and photographs held by local police are a separate matter, and people often need to apply to have them destroyed.

This article is part of the guide to criminal law in Canada.

The short version

• Withdrawal, a stay, diversion, a peace bond, a discharge and an acquittal are all outcomes without a conviction.
• Diversion usually involves a program, community service or a donation, after which the charge is withdrawn.
• A discharge means the person is found guilty but not convicted.
• Absolute discharges are removed from CPIC after 1 year, and conditional discharges after 3 years.
• Local police records, fingerprints and photographs may stay on file unless the person applies to destroy them.
• Non-conviction outcomes can still matter for immigration, U.S. travel and some background checks.

Outcomes Without a Conviction

Diversion and Alternative Measures

Section 717 of the Criminal Code allows alternative measures programs for adults, authorized by each province. The Crown decides who is eligible, usually considering the seriousness of the offence, the person's record, and whether they accept responsibility. Programs commonly involve:

• a charitable donation
• community service hours
• restitution to the victim
• counselling, education or treatment
• a letter of apology

Ontario's Direct Accountability Program, delivered through community agencies such as the John Howard Society, is one example. It is used for some minor, non-violent offences, and the charge is withdrawn once the sanctions are completed.

Statements made to qualify for alternative measures cannot be used against the person in later civil or criminal proceedings, under section 717(3). If the person does not complete the program, the prosecution can continue.

Mental health diversion and specialized courts, such as drug treatment courts, also exist in many provinces.

Absolute and Conditional Discharges

Under section 730 of the Criminal Code, a court can discharge an accused who pleads guilty or is found guilty, if it considers this to be in the accused's best interests and not contrary to the public interest. A discharge is not available for offences with a mandatory minimum penalty, or offences punishable by 14 years or more.

Discharges are often sought where a conviction would cause serious consequences out of proportion to the offence, such as losing a job or the ability to travel for work.

Fingerprints, Photographs and Local Police Records

Even without a conviction, police may keep records of the arrest, the charge, fingerprints and photographs. These can show up on some police checks, especially vulnerable sector checks, and can raise questions at the border.

Many police services allow people to apply to destroy fingerprints, photographs and related records. Each police service sets its own policy. For example, the Toronto Police Services Board policy provides:

Other police services use different waiting periods, often several months to a year after the case ends. Destruction is usually not automatic: the person must apply in writing to the police service that laid the charge. Requests can be refused, for example where the charge was for certain designated offences or where there are compelling public interest reasons.

Do You Have to Disclose a Withdrawn Charge or Discharge?

It depends on the question being asked. Many job applications ask about criminal convictions, and a person who received a discharge or whose charge was withdrawn has not been convicted. However, some forms ask broader questions, such as whether a person has ever been charged or arrested, including immigration and U.S. border forms. Get advice before answering any form that asks about charges or arrests.

Immigration and U.S. Travel

A discharge is not a conviction under Canadian immigration law. U.S. immigration law looks at the facts differently and may treat a guilty plea or a discharge as a conviction or an admission. See criminal records and travelling to the U.S..

Frequently Asked Questions

Does a discharge mean I have a criminal record?

A discharge is not a conviction, so in most senses it is not a criminal record. It stays in the federal system for 1 or 3 years, and local police records may stay longer unless destroyed.

Do I need a record suspension after a discharge?

Generally, no. Discharges are removed from CPIC automatically after the waiting period under the Criminal Records Act. Record suspensions are for convictions. See record suspensions in Canada.

Is diversion an admission of guilt?

Diversion usually requires the accused to accept responsibility, but it is not a guilty plea, and statements made to qualify cannot be used against the person in later proceedings.

How do I ask for diversion?

Ask duty counsel or a criminal lawyer before the first court date. The Crown decides whether to offer it. See theft under $5,000.

Want to avoid a conviction? Search LawyerDirectoryCanada.ca for criminal lawyers by province and city.

Sources

• Criminal Code, section 717: alternative measures, Justice Laws Website
• Criminal Code, section 730: conditional and absolute discharge, Justice Laws Website
• Criminal Records Act, section 6.1: discharges, Justice Laws Website
• Direct Accountability Program, John Howard Society of Ontario
• Destruction of adult fingerprints, photographs and records of disposition, Toronto Police Services Board
• Find out if you can have your records destroyed, Steps to Justice