A Strict Bail as a Mitigating Factor on Sentence


An accused is entitled to a pre-trial bail credit where the Court is satisfied there has been an impact on his liberty as a result of strict bail conditions. 

R v Downes (2005), 2006 CanLII 3957 (ON CA), 205 CCC (3d) 488 (ONCA); R v Newman, 2005 ABCA 249 (CanLII); R v Liparoti, 2011 ABCA 250 (CanLII); and R v Olsen, 2011 ABCA.

* Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor. That factor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case.

* 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: (See for instance R. v. Pomanti, 2017 ONCA 48 (CanLII), where the court did not credit time spent on pre-trial bail, notwithstanding the accused was on bail for 25 months on relatively strict bail terms).

R. v. Said, 2017 ONCJ 124.

[Summarizing R v. Downes 2006 CanLII 3957 (ON CA), [2006] O. J. No. 555]. 

The Manitoba Court of Appeal described the process in R. v.  Irvine, 2008 MBCA 34 (CanLII), 2008 231 C.C.C. (3d) 69, at paragraph 27:

Unlike the “credit” to be given- after the fit and appropriate sentence has been determined- for time spent in pretrial custody, any consideration to be given for pre-trial bail occurs at the same time as the sentencing judge considers all of the other mitigating and aggravating factors.  Time spent on pre-trial bail, in contrast pre-trial custody, does not form part of the punishment itself; rather, it forms part of the initial analysis to arrive at the fit and appropriate sentence.  There is no potential “credit’ to be given in calculating sentence, as there is under sec. 719(3) of the Code for pre-trial custody.  It is simply a potential mitigating factor.”

The amount of credit given, if any, will depend upon a number of factors including the length of time spent on bail terms, the stringency of the bail conditions, the impact of the conditions on the offender’s liberty and the ability of the offender to carry on normal relationships, employment and activities.

The Ontario Court of Appeal pointed out in R. v. Ijam, 2007 ONCA 597 (CanLII) that the accused must “demonstrate that the bail conditions had prejudiced, or imposed undue hardship [on him]”.  MacPherson, J, speaking for the majority stated at paragraph 29 of the decision “ I do not accept the proposition that bail, even with stringent conditions, and pre-trial custody are to be regarded as equivalents in every case.  Put bluntly, bail is not jail.  Bail is what an accused person desires to stay out of jail.  That is because, at a practical, common sense level known to all accused persons, the pith and substance of bail is liberty, whereas the essence of jail is a profound loss of liberty”.

The appellate authorities make it clear that there must be evidence of hardship, and restrictions on liberty.  The onus is on the accused to establish what hardship, if any, the accused actually suffered.  In R. v. Irvine, supra, it was pointed out that in order to found a claim for credit, the bail conditions should effectively be punitive and impose significant custodial and penal attributes.



How much Credit to Give?

·        Credit of 5 months for an accused who was subject to house arrest for 18 months: R. v. Downes.

·        Credit of 3 months for an accused who was subject to house arrest for 14 months:R. v. Wheatley, 2017 ONCJ 175.

·        No credit for pre-trial liberty restrictions that arose from a tight bail: R. v. Finestone, 2017 ONCJ 22 (CanLII) [among other things, though on house arrest, accused afforded many opportunities to engage in activities outside of his residence with designated persons].

·       Credit of 126 days for pre-trial bail of 15 months: accused not allowed to leave the province, had to surrender his passport, could not possess a cellphone or mobile device, had to provide a probation officer with monthly telephone statements and he was required to submit to random searches by a peace officer of his home between 6:00 am and 8:00 pm without prior notice: R. v. Hong, 2013 ABPC (CanLII).

Credit not given on a one-for-one basis

In R. v. Downes, the Court of Appeal held that in some cases credit may be given for the impact of pre-sentence release conditions.  Strict bail conditions, however, are not the same as being incarcerated. Therefore, if credit is to be given for strict bail conditions, the credit should not be on a one for one basis. Moreover, in many cases, the court may choose to not give any credit for the pre-trial liberty restrictions that arise from a tight bail.  

R. v. Finestone, 2017 ONCJ 22 (CanLII).

Harsh conditions in jail as a mitigating factor on sentence

A sentencing judge can give credit for especially harsh jail conditions as a mitigating factor provided that there has been appropriate evidence filed. 

R. v. Duncan, 2016 ONCA 754 (CanLII). 

Prison Lockdowns--The harsh conditions of lockdown are also a mitigating factor. During a lockdown the inmates are more or less confined to their cells.  They do not have the opportunity to shower, exercise, socialize, or have access to the programs that will assist them when they re-integrate back into the community. 

A prisoner who experiences lockdown is entitled to remission beyond the 1.5:1 credit for pre-sentence custody that is routinely granted. 

R. v. Nsiah, 2017 ONSC 769.

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