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“Gonna find out who’s naughty or nice!” Even if you are naughty, you might still avoid a criminal record


Manon, from Ste-Agathe-des-Monts, writes:

‘I was recently intercepted by a security guard after having left a supermarket without having paid for certain items. I was found with a block of cheese, maple syrup, chicken thighs and a few items of clothing in my purse.   I am now being charged with theft under section 334 of the Criminal Code. I am extremely stressed by the proceedings and I would like to do anything legally possible to avoid a criminal record. I do not currently have a criminal record and have never violated any type of law before. My professional plans would be greatly affected by a conviction. Is it possible to avoid a criminal record and if so, how do I proceed to do so?

Dear Manon,

In the event that you are able to prove that a criminal record would be prejudicial to your professional career, it would be possible for you or your attorney to discuss your situation with the Crown prosecutor.

In the event that you agree to plead guilty, the Crown prosecutor could agree to negotiate an absolute discharge as a common suggestion that would be presented to the Judge at the time of sentencing, to avoid a criminal record altogether. However, it is important to understand that the judge has full discretion to either accept or reject such a common proposal.

An absolute discharge is the best sentence for an individual who is found guilty of committing an offence under the Criminal Code. A judge may agree to grant an absolute discharge to an individual found guilty of an offence for which the law does not prescribe a minimum sentence or which is not punishable by imprisonment for fourteen years or more. Furthermore, it must be in the accused’s best interest while not prejudicing the public’s interest.

A judge can also grant a conditional discharge, so that the accused still receives a discharge and avoids a criminal record, but the accused must first fulfill the conditions set in a probation order within a stipulated time frame.

The accused benefiting from this measure, as defined under section 730 of the Criminal Code is deemed not to have been convicted of the offence and does not get a criminal record. Discharges are therefore an advantageous measure for the accused seeking employment or travelling to the United States, for example.

It must not be forgotten that judges generally prefer to grant discharges when the facts of the case are less serious or with cases where the accused does not already have a criminal record.



Sonia Rotondo, Attorney-at-law

Alepin Gauthier avocats inc.

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