R v Downes

Her Majesty the Queen v. Downes

2006 CanLII 3957 (ON CA)
Court of Appeal for Ontario — Rosenberg, Feldman and Juriansz JJ.A.

Background

Colin Downes was convicted of multiple offences against his former girlfriend between March and October 2003, including three counts of forcible confinement, two counts of assault, criminal harassment, and uttering death threats. The incidents involved escalating domestic violence including forced confinement in vehicles, physical assault, and terrorizing the victim over months. After his arrest in October 2003, Downes was released on extremely stringent bail conditions including house arrest where he could only leave his surety's home in the company of his surety—with no exceptions even for medical emergencies. He spent 18 months under these conditions before being sentenced to 21 months imprisonment plus two years probation.

Issues

1. Should an accused receive credit against their sentence for time spent under stringent pre-trial bail conditions, particularly house arrest?
2. What factors should courts consider when determining appropriate credit for pre-trial house arrest?

The Court's Analysis

The Court of Appeal established that time spent under stringent bail conditions, especially house arrest, must be considered as a relevant mitigating factor in sentencing. While there's no rigid formula like the 2:1 credit typically given for pre-sentence custody, trial judges must explain why they're declining to give credit for house arrest conditions. The amount of credit depends on factors including: length of time under house arrest, stringency of conditions, impact on the offender's liberty, and ability to maintain normal relationships and employment. However, unlike pre-trial custody, the impact of bail conditions cannot be assumed and requires evidence from the defence.

Key Takeaway

Pre-trial house arrest counts as punishment and must be considered in sentencing.

If you're facing charges and spend months under house arrest or other restrictive bail conditions, this time should reduce your eventual sentence. However, you need to provide evidence to the court about how these conditions actually impacted your life—the court won't assume the hardship. The trial judge's failure to consider Downes's 18-month house arrest was an error in principle, leading to his sentence being reduced from 21 to 16 months.