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R. v. Fallofield, [1973] B.C.J. No. 55913, C.C.C. (2d) 450, the British Columbia Court of Appeal when granting a condition discharge to a member of the Canadian Forces without a prior criminal record and stated at paragraph 21:

"From this review of the authorities and my own view of the meaning of s. 662.1, I draw the following conclusions, subject, of course, to what I have said above as to the exercise of discretion.

(1)        The section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life or by death.

(2)        The section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivial violation.

(3)        Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the best interests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused, that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the next consideration into operation.

(4)        The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.

(5)        Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or [*455] to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions.

(6)        In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions.

(7)        The powers given by s. 662.1 should not be exercised as an alternative to probation or suspended sentence.

(8)        Section 662.1 should not be applied routinely to any particular offence.             This may result in an apparent lack of uniformity in the application of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstances of cases.

Jim O'Neil, LL.B.

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