The Impact of Stringent Bail Conditions On Sentencing
by Tushar K. Pain
When a client is being sentenced, it is the duty of a criminal defence lawyer to put forth to the Court all the relevant and important mitigating circumstances of the case in an effort to reduce the sentence as much as possible. Mitigating circumstances can arise from many facets of the case including the accused’s life (eg. In a case of theft, the accused was addicted to gambling.), from within the offence itself (eg. In a case of assault, for example, no injuries were inflicted upon the victim.), from the accused’s behaviour post-arrest (eg. The accused confessed upon arrest.), and from the impact of the process of the criminal justice system upon the accused (eg. The accused was denied bail and spent time in jail while awaiting trial.).
It is well-established law that where an accused has been denied bail or spent time in jail before being granted bail, he should be given credit for pre-sentence custody. Section 719(3) of the Criminal Code of Canada allows a Court to take into account any time spent in custody by the accused as a result of the offence. While there is no fixed formula, the Courts have generally stated that a sentencing court should give more than one-for-one credit for pre-sentence custody in recognition of the circumstances that usually attend pre-sentence custody. In fact, Courts will typically give two-for-one credit for pre-sentence custody and, in some instances, enhance the credit even further where the circumstances under which the accused was detained have been particularly difficult, such as where there is an overcrowding in the jail and people are crammed into cells together.
On the flipside, in some instances, Courts have given less than two-for-one because of the circumstances of the custody or the reasons for the detention.
But what about difficult bail conditions? Can an onerous bail be considered as a mitigating factor? Making this argument is far more difficult than the arguing for mitigation for pre-trial custody. Unlike pre-trial custody, there is no statutory provision within the Criminal Code that addresses this issue. Secondly, even stringent bail conditions such as house arrest often allow the accused exceptions for work, schooling, medical appointments, and so on. Thirdly the impact of bail conditions on the accused is not usually obvious unlike pre-trial custody where the loss of liberty is quite apparent.
However, it can be argued that an accused person who has been under stringent bail conditions for a prolonged period of time has had his liberty infringed and suffered a form of punishment already that should be taken into consideration. In fact, the Ontario Court of Appeal in the case of R. v. Downes [2006] 79 O.R. (3d) 321 has stated, “…that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or not credit should be given for pre-sentence house arrest.” The Court went on to state that “the amount of potential 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.” The onus will be on the offender on a balance of probabilities to establish the negative impact of the bail conditions.
| |
 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Browse Articles:
Is Prostitution Legal In Canada?
The criminal laws surrounding the activities associated......
What is a computer or Internet crime?
Computer and Internet Crimes: In today's fast-paced......
What you need to know about domestic assault charges
Domestic Assault: Domestic assault is a very serious...
"I Can’t Believe I've Been Charged With Shoplifting"
Shoplifting: You've been caught. You're embarrassed...
Sexual Assault: The False Allegation
Sexual Assault: A false allegation is more common...
The Impact of Stringent Bail Conditions On Sentencing
Do difficult bail conditions have any impact on sentencing?...
I've Been Charged. What Can I Do To Help Myself?
What To Do When You've Been Charged: Some immediate...
The Canadian Criminal Justice System
The Criminal Justice System: Finding yourself caught...
Can I Really Trust My Lawyer?
The Defence Lawyer's Duty: You need to trust your...
What Should I Expect From My Lawyer?
Serving The Client: What you should expect from your...
Hiring a Lawyer
Hiring A Lawyer: It is often best to hire a lawyer...
What you should know about criminal records
Criminal Records: Being convicted of a criminal offence,...
Can I Appeal This?
Criminal Appeals: An overview of the appeal process...
Ontario's Drinking and Driving Laws Often Misunderstood; Here's what you should know before you drink and drive
Ontario's Drinking and Driving Laws Often Misunderstood: ...
Ignition Interlocks: Another harsh reality for those convicted of an impaired driving offence
Ignition Interlocks: Another harsh reality for those...
How Impaired Driving Charges Are Defended
How Impaired Driving Charges Are Defended: It seems...
Familiarizing yourself with courtroom etiquette
Courtroom Etiquette: Going to court is rarely a pleasant...
Preparing To Be An Effective Witness
Testifying In Court: The evidence you give in court...
Character Witnesses: Choosing Someone To Testify On Your Behalf
How To Select Character Witnesses: A character witness...
Make a positive impact with personal reference letters
Personal Reference Letters: Letters of personal reference...
Employment letters: What They Do And How They Should Be Drafted
Employment Letters: A letter of employment is typically...
Understanding The Guilty Plea Process
Pleading Guilty: Pleading guilty means that you are...
Evidence Ruled Capable of Supporting Racial Profiling Allegation
An analysis of the Ontario Court of Appeal decision...
When the Police Investigate A Passenger In A Motor Vehicle
In the case of R. v. Harris, (2008) 87 O.R. (3d) 214 the Ontario Court of Appeal had to wrestle with the issue of what Charter protections are engaged when the police investigate...
How to Advise Pre-Charge Clients in the Light of White
A client involved in a motor vehicle accident is being...
|
|
