If you have been accused of a criminal offence, one of your first questions may be: “am I going to go to jail?” If you are currently facing criminal charges, contact a lawyer at Pringle Chivers Sparks Teskey to discuss your case. Our experienced and knowledgeable lawyers will review your case and provide a sound legal opinion about the jeopardy you may face.
Being accused of a criminal offence is a very stressful experience. However, it is important to remember that a person is presumed innocent until proven guilty. This means that being accused of a crime does not necessarily mean that you are at risk of going to jail. A person is “convicted” of a crime if they are found guilty after a trial or if they accept responsibility by entering a guilty plea. A “sentence” is the punishment a person receives after they have been “convicted.” You will only be sentenced to imprisonment (or sent to jail) if you are convicted of a criminal offence. Also, it is possible that a person may be held in custody pending trial or the resolution of charges. Please see our article on bail for more information.
This article will provide general information about jail as potential sentence after conviction. This information only applies to adult offenders. For more information about sentencing in general, please see our articling on sentencing.
What factors related to the offence will the judge consider?
A sentencing judge has considerable discretion in crafting a fit and appropriate sentence. He or she will consider many factors. In most cases, imprisonment is one of many possible sentencing options available. However, in some very serious cases, imprisonment may be the minimum sentence that is available.
Generally speaking, the more serious an offence, the more likely it is someone will go to jail. For example, if you plead guilty to stealing from a grocery store, it is unlikely that you would go to jail. However, if you pulled a knife on the cashier when she tried to stop you from leaving, you would likely go to jail. The judge will consider all of the circumstance when assessing the seriousness of the offence.
The following factors related to the offence itself are considered aggravating. If the sentencing judge finds that the circumstances are aggravated, a sentence of imprisonment will be more likely:
- Evidence that the offence was motivated by bias, prejudice or hate. In other words, a “hate crime”;
- Evidence that in committing the offence, the offender abused a domestic partner or a person under the age of eighteen;
- Evidence that the offender abused a position of trust or authority. For example, stealing from an employer or if the victim of the crime was under the offender’s care;
- Evidence that the offence was related to terrorism or a criminal organization;
- Evidence that the offence was planned of deliberate; and
- Evidence that the offender was motivated by greed or profit rather than desperation or survival.
What factors related to the offender will the judge consider?
A sentencing judge will consider a number of factors related to the offender when determining whether or not imprisonment is a fit and proper sentence. A mitigating factor tends to lessen the severity of the offence, which may reduce the likelihood of being sentenced to a period of imprisonment. An aggravating factors, on the other hand, may increase the likelihood of imprisonment.
The following factors related to the offender are generally considered to be mitigating:
- Age – A judge sentencing a young person will put a greater emphasis on rehabilitation, especially if the young person is a first-time offender.
- Character – If the offence is “out of character,” a sentencing judge may consider this to be mitigating. The judge will consider a person’s employment history, contributions to the community and support from his or her family.
- Addiction and mental health – If addiction or mental health issues were a factor in the commission of the offence, the sentencing judge may consider it mitigating, especially if the person has since sought treatment.
- Remorse – It is considered significantly mitigating if a person shows remorse by taking responsibility for his or her actions. This may be evidenced by entering a guilty plea, cooperating with the police or by making reparations. However, a lack of remorse is not an aggravating factor.
What if I have a criminal record?
Having a criminal record may impact the likelihood of going to jail. A criminal record that is lengthy, related or very serious may increase the likelihood of being sentenced to imprisonment.
- If you have a related criminal record, the judge will consider imposing a sentence that is incrementally harsher than the previous sentences you have received. For example, a judge may sentence you to imprisonment for theft if you have long record for theft, even if you have never been sentenced to imprisonment before.
- If you have been sentenced to imprisonment in the past, it is likely that you will be in jeopardy of imprisonment if convicted of a similar offence. For example, if you are convicted of assault, a judge will likely sentence you to imprisonment if you have been previously sentenced to imprisonment for assault.
- If your record is very old, a sentencing judge will find it less aggravating than a record that is very recent. A dated record demonstrates to the sentencing judge that you have responded well to sentencing in the past and that you have been successful at avoiding criminal conduct.
What if the offence has a mandatory minimum sentence?
A mandatory minimum sentence is the lowest possible sentence that can be imposed for a conviction of certain offences. The Criminal Code and the Controlled Drugs and Substances Act specify imprisonment as the mandatory minimum sentences for a number of serious offences, including:
- First and second degree murder;
- Many offences have a mandatory minimum sentence of imprisonment if they are committed with a firearm. These offences include manslaughter, attempted murder, sexual assault and robbery;
- Many sexual offences have mandatory minimum sentences, especially if committed against a young person;
- Many firearms and weapons offences have a mandatory minimum sentence of imprisonment if the Crown Prosecutor has elected to proceed by way of indictment. These offences include possession of prohibited or restricted firearm with ammunition and possession of weapon obtained by commission of an offence;
- If you has been previously convicted of certain offences, any subsequent convictions of that same offence result in a mandatory minimum sentence of imprisonment. Most notably, there is a mandatory minimum sentence of imprisonment for subsequent conviction of a drinking and driving offence after the first one; and
- Many drug offences, including possession for the purposes of trafficking, importing/exporting and production specify a minimum sentence of imprisonment in certain circumstances.
What if I have pre-trial custody?
Pre-trial custody is the time spent in custody before trial or a conviction. It can be used as credit towards a sentence. However, it does not reduce the actual sentence even though it may reduce the time you have to spend in jail after conviction. “Time-served” does not mean that you have not been sentenced to imprisonment. For example, if you have 14 days of pre-trial custody, you will not avoid a sentence of imprisonment simply because you have already spent time in jail. Instead, those 14 days of pre-trial custody can be used as a credit towards the sentence. In some circumstances, this may mean that you have already served your sentence and will not have to spend any additional time in jail. This is an important distinction that is often misunderstood. Your criminal record will reflect the sentence that was ordered by the judge, not how many days you spent in jail after being convicted.
The following situations illustrate how pre-trial custody is credited towards a sentence:
- If you are sentenced to 7 days of imprisonment and have spent 14 days in pre-trial custody, your pre-trial custody will satisfy the sentence. This is often called a “time served” situation and you will not have to spend any more time in jail. Your criminal record will reflect the 7 day sentence.
- Similarly, a “time served” situation will occur if you are sentenced to 14 days of imprisonment and have spent 14 days in pre-trial custody. Your criminal record will reflect the 14 day sentence.
- If you are sentenced to 21 days of imprisonment and have spent 14 days in pre-trial custody, the pre-trial custody will be credited towards the sentence. It is possible that your pre-trial custody will be “enhanced” and credited at a rate of 1.5 to 1. This means that your 14 days of pre-trial custody will be credited as 21 days (14 x 1.5). Your criminal record will still reflect the 21 day sentence
What about non-criminal offences?
The Provincial government has the power to create quasi-criminal or regulatory offences. In most cases in Alberta, that maximum sentence that can be imposed is 6 months of imprisonment. For example, it is possible to be sentenced to imprisonment if you are convicted of a very serious traffic offence like careless driving. Generally speaking, being sentenced to imprisonment for a traffic conviction is exceptionally rare except in the case of driving while unauthorized. The Alberta Traffic Safety Act specifies a mandatory minimum sentence of 14 days imprisonment if a person is convicted of driving while unauthorized within one year of a previous conviction of the same offence.
Below are a number of situations that demonstrate the likelihood of being sentenced to a term of imprisonment. In all of these situations, it is assumed that you have accepted responsibility for committing the offence and intend to enter a guilty plea.
I am unemployed and money is tight. I went to the grocery store and stole some razors and makeup. I was charged with theft under $5000. I do not have a criminal record. Will I go to jail?
This crime is relatively minor. The stolen items were not very valuable and were likely recovered and put back on the store shelves. There is nothing aggravating about the offence itself. Since you do not have a criminal record and have sympathetic personal circumstances, it is extremely unlikely that you would be sentenced to a term of imprisonment.
I manage my son’s hockey team. Over the years, I have been skimming money out of the team’s bank account. I have been charged with theft over $5000. I have no criminal record. Will I go to jail?
The nature of this offence is aggravated by the fact that you abused a position of trust (you were entrusted with managing the team’s finances). In addition, it is aggravating that the victims of the crime are children. It is mitigating that you do not have a criminal record and you have shown remorse by pleading guilty. However, in this situation, a sentence to a term of imprisonment is likely.
I got into a fight why my neighbour and I kicked over his mailbox. I was charged with mischief under $5000. I have criminal record that is over 15 years old. Will I go to jail?
Although you have a criminal record, it should have little effect on the sentence because it is dated. It is unlikely that you will be sentenced to a term of imprisonment.
I was at the bar with my friends, watching a hockey game. My team lost and a stranger at the bar was being smug about it. We got into a fist fight and I punched him once before the fight was broken up. No one was injured. I was charged with assault. I have two prior convictions for assault but I have not been sentenced to imprisonment. Will I go to jail?
The assault was relatively minor. It was broken up before anyone got hurt. Also, the complainant does not appear particularly vulnerable. It is mitigating that you are showing remorse by entering a guilty plea. However, the fact that you have a related record of violent offences is significantly aggravating. Since this is your third conviction, it is more likely than not that you will be sentence to a jail.
I went out with friends to celebrate my birthday. I had several drinks and was in no shape to drive. I hit a parked car. I blew twice the legal limit and was charged with impaired driving and over 80. I have no criminal record. Will I go to jail?
In this situation, the sentencing judge would find it aggravating that there was property damage and that you blew over twice the legal limit. It is mitigating that you have shown remorse by pleading guilty. You may also have some other mitigating personal circumstances. It is extremely unlikely that you would be sentenced to imprisonment in these circumstances.
I was driving home from an office Christmas party where I had a one drink. I was stopped by the police and refused to provide a breath sample. I was charged with refusing to provide a sample of my breath. I have a previous impaired driving conviction. Will I go to jail?
There is nothing aggravating about these circumstances like there was in the previous example. It is also mitigating that you are showing remorse by pleading guilty. However, since you have a previous impaired driving conviction, the minimum sentence that can be imposed is 30 days imprisonment. In the circumstances, you will likely receive the mandatory minimum sentence.
I have been accused of luring a child over the internet. I do not have a criminal record and I have significantly mitigating personal circumstances. Will I go to jail?
The offence of luring a child has a mandatory minimum of sentence of 6-months jail if the Crown elects to proceed by summary conviction and 1-year if the Crown elects to proceed by indictment. Therefore, regardless of any mitigating factors, the minimum sentence that you will receive will be a term of imprisonment.
What if I have more questions?
It is always advisable to speak to criminal defence lawyer if you have been charged with a criminal offence. All criminal convictions are serious, regardless if there is a risk of jail. If you have been charged with a serious criminal offence or you believe that there is a risk that you may be sentenced to jail, it is very important to seek and retain counsel. In many cases, being sentenced to jail is not a certainty. A lawyer from Pringle Chivers Sparks Teskey will be able fully explain all of the consequences of a criminal conviction and ensure the best possible outcome of your case.