Often one of the first questions I’m asked by a new client is, “Will I go to jail if I’m convicted?” As you would expect, this is the source of much angst.
Thankfully, the answer is usually no if the person does not have a criminal record and has not committed either a serious offence or one which carries a minimum sentence.
Unfortunately, not having a criminal record does not give you a “get out of jail free” card in the latter two cases.
There is no defined class of “serious offences” in the Criminal Code; however, there are a number of offences for which judges invariably impose jail sentences. These offences include, not surprisingly, murder, manslaughter, kidnapping, aggravated sexual assault, dangerous driving causing death, impaired driving causing death, and aggravated assault. Except in exceptional circumstances, offences such as extortion, robbery, drug trafficking, assault causing bodily harm, breaking and entering, and theft from an employer are also punished with jail sentences.
Minimum Sentence Offences
Where a minimum mandatory sentence is prescribed by law, jail cannot be avoided.
Offences which carry a minimum sentence include:
(a) possession of a loaded restricted or prohibited firearm (3 years if the Crown proceeds by indictment)
(b) use of a firearm or imitation firearm in the commission of an offence (1 year consecutive to the main offence)
(c) sexual assault of a person under 16 (90 days or 1 year)
(d) sexual interference (90 days or 1 year)
(e) invitation to touch (90 days or 1 year)
(f) production of marijuana, 6 to 200 plants (6 months if the purpose of production is trafficking)
House Arrest – Conditional Sentence Order (CSO)
The Criminal Code used to permit judges to sentence offenders to conditional sentences (commonly referred to as “CSOs”) where the appropriate sentence for the offence was less than two years imprisonment. In theory, a CSO was available for any offence other than murder, and allowed an offender to serve his or her sentence in the community, typically at home under house arrest conditions.
The CSO was introduced to the Criminal Code as a sentencing option as a result of the government’s acknowledgment that jail sentences should be used sparingly. The only other prerequisites for a CSO were satisfying the court that a CSO:
(a) would not endanger the safety of the public; and
(b) would be consistent with the fundamental principles of sentencing (general deterrence, specific deterrence, denunciation, rehabilitation, etc.)
Since the introduction of the CSO in the nineties, the availability of CSOs has been drastically reduced. This is largely a function of the Conservative government’s efforts to score cheap political points with voters, particularly the right wing of their own party, by appearing to be “tough on crime”, despite compelling evidence that incarceration is generally not productive.
Today, a CSO cannot be ordered for any offence:
- punishable by a minimum jail sentence
- prosecuted by way of indictment and punishable by a maximum jail term of 14 years or more
- prosecuted by way of indictment and punishable by a maximum jail term of 10 years or more if the offence resulted in bodily harm, involved the import, export, trafficking or production of drugs, or involved the use of a weapon
Further, a CSO cannot be ordered for any of the following offences if they are prosecuted by indictment:
- prison breach (s. 144)
- criminal harassment (s. 264)
- sexual assault (s. 271)
- kidnapping (s. 179.02)
- trafficking in persons (2. 279.02)
- abduction of a person under 14 (s. 281)
- motor vehicle theft (s. 333.1)
- theft over $5,000 (paragraph 334(a))
- breaking and entering a place other than a dwelling house (paragraph 348(1)(e))
- being unlawfully in a dwelling house (s. 349)
- arson for fraudulent purpose (s. 435)