Strict Bail Conditions Credit
General Principles
The court has the discretion to take strict bail as akin to custody when calculating the ultimate sentence.[1] This discretion includes the choice to deny credit or calculate the amount of credit.[2]
The court may consider the bail conditions of the offender up to the date of sentencing.[3]
If the individual was under house arrest conditions for bail, this may be accounted as a reason to reduce the sentence as the house arrest may have a punitive element to it. This is a discretionary, however, and will usually needed to be justified by showing that the offender's circumstances were particularly tough beyond the average person.[4]
Restrictive bail conditions should be treated flexibly. The amount of credit, if any, is in the discretion of the trial judge to determine.[5]
In Ontario, the following guidelines are suggested:[6]:
- Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
- As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
- The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.
- The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
- The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment and activity.
- Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.
It is an error for the sentencing judge to consider how "necessary" the conditions were.[7]
- ↑
R v Spencer, 2004 CanLII 5550 (ON CA), 186 CCC (3d) 181, per Doherty JA
R v Gray, 2003 ABQB 473 (CanLII), 338 A.R. 270, per Watson J
R v Hames, 2000 ABQB 958 (CanLII), [2000] AJ No 1538, per Watson J
R v Ticknovich, 2004 ABQB 421 (CanLII), 356 AR 57, per Watson J
R v Lau, 2004 ABCA 408 (CanLII), 193 CCC (3d) 51, per Hunt JA, at para 15 ("...a trial judge may take account of very strict bail conditions and treat that as akin to custody in calculating a sentence:")
contra R v Panday, 2007 ONCA 598 (CanLII), 226 CCC (3d) 349, per MacPherson JA (3:0)
- ↑
Lau, supra, at para 16
- ↑ R v Downes, 2006 CanLII 3957 (ON CA), 205 CCC (3d) 488, per Rosenberg JA (3:0), at para 23 (“ is now well established that an offender should be given credit for pre-sentence custody. The rationale for doing so comes from the provisions of the Criminal Code, R.S.C. 1985, c. C-46 and judicial recognition of the conditions under which pre-sentence custody is served. Section 719(3) of the Criminal Code expressly provides that the sentencing court may take pre- trial custody into account. As Arbour J. said in R v Wust, ... "while pre-trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishment following the offender's conviction, by the operation of s. 719(3)".)
- ↑ R v Knockwood, 2009 NSCA 98 (CanLII), 900 APR 156, per Saunders JA
- ↑ Downes, supra, at para 36 (“a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach, ... the amount of credit and the manner in which it is to be taken into account as a mitigating factor is a matter for the trial judge.”)
- ↑
Downes, supra, at para 37
R v Ijam, 2007 ONCA 597 (CanLII), 226 CCC (3d) 376, per MacPherson JA (3:0), at para 63 - ↑ R v Joseph, 2020 ONCA 733 (CanLII), 153 OR (3d) 145, per curiam, at paras 107 to 114