After being arrested and charged with a criminal offence, many people who contact our Greater Toronto Area criminal law offices want to know if we can help them avoid a prison or jail sentence. This makes sense, given that imprisonment is the most severe penalty Ontario courts can impose on those convicted of various criminal offence categories. Imprisonment, whether in a provincial jail or federal penitentiary, will seriously disrupt one’s life and essentially ruin as many days as imposed by the prison sentence. No one in their right mind wants to spend time in prison or jail, and, yes, competent criminal defence lawyers can help criminal defendants avoid prison and jail terms.
Prison and Jail Basics
In general, imprisonment sentences of two years or less are served in provincial jails—commonly called detention or remand centres—or in provisional correctional centres. Sentences longer than two years are served in federal penitentiaries. You are more likely to face potential jail or prison time if your charges are being tried as an indictable offence rather than a summary conviction offence.
The penalties for indictable offences are typically much more severe than for summary conviction offences, with 29 indictable offences carrying mandatory minimum sentences of imprisonment. Sentence enhancements can also carry mandatory minimum imprisonment terms. Such enhancements are related to the seriousness of the crime. While sexual assault convictions do not have mandatory minimum imprisonment terms, if the sexual assault involves using a weapon, the charges are enhanced and carry a mandatory minimum sentence of five years imprisonment.
You are also more likely to face jail or prison time if you have been previously convicted of a criminal offence. In fact, some repeat offences, such as DUI and firearms violations, carry mandatory imprisonment sentences.
Avoiding Pre-Trial Incarceration
Depending upon the severity of charges, you might be facing jail time before you even face a judge or jury at trial. While the police and the Crown release most criminal defendants on their own recognizance after being charged and processed at the police station, the Crown usually seeks pre-trial incarceration for those accused of the most severe offences. To avoid such pre-trial detention, you must successfully navigate the court system’s Judicial Interim Release (bail) process. Defendants who fail to make bail remain incarcerated until their trial, making it more difficult for them to strategize their criminal defence.
A skilled bail hearing lawyer can help you gain pre-trial release under the most favourable conditions. This, in turn, marks a successful start to criminal defence efforts and will help you and your lawyer strategize the best defence for your impending trial.
Your Criminal Defence Lawyer Seeks the Most Favorable Outcome
Whatever criminal charge(s) you face, your criminal defence lawyer should be dedicated to securing the most favourable outcome of your case possible. If a conviction comes with a potential jail or prison sentence, your defence lawyer will likely make avoiding that outcome a priority. In examining your case, skilled criminal defence lawyers determine whether specific defence initiatives can possibly lead to dismissed charges, withdrawn charges, reduced charges, or an acquittal. Your lawyer should also strategize defence moves that can help mitigate penalties — including imprisonment — should other defence initiatives fail. Depending upon the nature of the charges, evidence, and other relevant factors, your criminal defence lawyer may use the following defence strategies:
- Move to have the charges dropped.
- Negotiate for a peace bond (conditional means of withdrawing charges).
- Negotiate for reduced charges.
- Establish and present evidence of your innocence.
- Challenge the Crown’s physical evidence.
- Challenge witness testimony.
- Present favourable witness testimony.
- Challenge Charter Rights violations.
- Negotiate and plea for favourable sentencing terms if convicted.
- Appeal the conviction if warranted.
Avoiding Imprisonment Upon Conviction
If a criminal conviction seems inevitable, avoiding imprisonment becomes the primary focus of your defence if penalties for the charges include possible imprisonment. The strategies your defence lawyer might use for imprisonment avoidance will depend upon:
- Whether the charges are summary conviction offences or indictable offences.
- Whether it is a repeat offence
- Whether you already have a criminal record.
- The nature of the crime.
- Any harm done to the victim(s) and/or society.
- Defendant’s employment status and position in the community.
- Any mitigating factors that could encourage the judge’s leniency.
In preparing for an inevitable conviction that carries potential imprisonment, your criminal defence lawyer will often try to negotiate a favourable resolution with the Crown. This is often very effective for first-time offenders charged with a summary conviction offence. In fact, skilled lawyers can convince the Crown to address some minor-level charges with alternative measures outside of the court. In exchange for the defendant acknowledging guilt, making restitution to any victims, receiving treatment/counselling (alcohol, drug, anger management, etc.), and performing a specific number of community service hours, the court might agree to set the charges aside for eventual withdrawal, as long as the conditions are met.
In a similar vein, defence lawyers can seek a suspended sentence with probation or a conditional or absolute discharge sentence upon conviction. With a discharge, the defendant agrees to abide by certain conditions in return for the “discharge” of the conviction. Once these conditions, which are similar to those used for alternative measures, have been met, the original conviction will be expunged from the criminal record. In general, an absolute discharge is granted with fewer conditions than the conditional discharge, leading to a much quicker criminal record expungement.
Probation is similar in many ways to a conditional discharge but does not come with expungement of the conviction and criminal record. The most common form of conditional sentencing used by Ontario courts, probation, allows defendants to avoid jail by conforming to specific conditions for a set length of time. Probation violations will result in the imposition of the original sentence and its jail or prison time. Along with terms used for alternative measures and discharges, probation can include house arrest, curfews, travel restrictions, prohibitions on consuming alcohol and drugs, and other measures as determined by the judge.
The courts also can impose a conditional sentence instead of jail sentence terms of two years or less. A conditional sentence allows the defendant to remain in the community, either freely or under house arrest, as long as they follow specific conditions similar to those imposed for the other alternative sentences. As with the others, failure to abide by the conditions will result in the imposition of the remaining sentence in jail.
Avoiding Prison with Mandatory Minimum Sentence Offences
Criminal defence lawyers face the biggest challenge in helping their clients avoid prison when charged with mandatory minimum sentence offences. In most cases, short of securing withdrawn charges, dismissal, acquittal or negotiating a plea bargain for reduced charges, a prison or jail sentence will be inevitable upon conviction. Plea bargain strategies tend to be most effective when defendants are facing a mandatory minimum imprisonment term based on sentence enhancements, as the Crown lawyers have the option to withdraw the enhancements in return for a guilty plea.
Contact the Expert Criminal Defence Lawyers at Mass Tsang
If you or a loved one is facing a potential jail or prison sentence due to criminal charges, seek out expert legal help. Given the significant disruption to your life that will be caused by incarceration, you cannot afford to challenge the criminal charges on your own. To help keep you or your loved ones out of jail, contact the highly experienced lawyers at Mass Tsang for the most effective defence.