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Sentencing: Pre-trial House Arrest

A number of cases deal with the issue of the application of Pre-Trial House Arrest in a sentencing determination.

R. v. Lau, 2004 ABCA 408

Similarly, a trial judge may take account of very strict bail conditions and treat that as akin to custody in calculating a sentence: R. v. Spencer(2004), 2004 CanLII 5550 (ON CA), 186 C.C.C. (3d) 181 (Ont. C.A.); R. v. Gray (2003), 338 A.R. 270 (Q.B.); R. v. Hames, 2000 ABQB 958; R. v. Ticknovich, 2004 ABQB 421 (CanLII).

[16]           But whether or not to give such credit, and how much, is a matter within the judge’s discretion, having regard to such factors as the intrusiveness of the terms of the judicial interim release:  R. v. Nguyen, 2004 ABQB 618 (CanLII). This Court has considered giving credit for time served on judicial interim release with strict conditions:  R. v. Ewanchuk (2002), 2002 ABCA 95 (CanLII), 299 A.R. 267.  Ewanchuk is different than the current case as it involved interim release after conviction.  This Court stated at para. 87: “… time spent in house arrest must be taken into account.”  I interpret that to mean that a sentencing judge must consider whether it is appropriate to give credit for time served under strict bail conditions, not that the judge is obliged to give credit.  In the current case, the judge did not err in exercising his discretion to deny credit for time served on interim release

R. v. Hennessey, 2009 ABQB 60

[100]      In my view, pre-trial interim release without any house arrest type provisions would not justify any credit being given. On the other hand, bail conditions amounting to a full house arrest of an accused might well justify a 1 for 1 credit as such a condition would essentially fully deprive an accused of his liberty.

[101]      Where an accused is under a partial house arrest in the sense that he is allowed out of the house for only a limited time (to work for example) and his liberty is severely restricted, consideration may be given to some credit between the two extremes. For example, where an accused is only allowed out of his home to work and is otherwise confined to his house at all other times, a court might well consider some compromise, such as credit on a 1 for 2 basis, that is, credit amounting to one half of the time on releas

R. v. Downes, 2006 CanLII 3957 (ONCA)

Accordingly, I conclude 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 no credit should be given for pre‑sentence house arrest. I agree with Ms. Paine that it is incumbent on the sentencing judge to explain why he or she has decided not to take pre‑sentence house arrest into account. The failure to do so will constitute an error in principle as explained by Laskin J.A. in Rezaie, supra, at 103: (ONCA in R. v. Ijam, 2007 ONCA 597 says this is not an error in principle)

R v Soto, 2016 ABCA 85

In this case, as I see it, the only arguable ground of appeal is whether the sentencing judge gave proper consideration to the 18-month period of house arrest imposed on the appellant as a bail condition pending disposition of the charges. I cannot say that he ignored it. I do say that he gave it inadequate effect

This appellant who played a far less significant role was sentenced to 6 1/2 years less only 90 days credit for 60 days in remand for a net sentence of 6 years and 3 months. This appellant, unlike Harper, received no credit for strict house arrest.

[5]               I note my colleague’s acknowledgment that the pre-sentence report indicates a promising recent history and that his probation officer noted that the appellant has feelings of remorse, and is motivated to make positive choices (infra para. 10). Taking into account all aggravating and mitigating factors, and mindful of the principle of parity, I would allow the appeal and substitute a net global sentence of 5 years imprisonment.

R. v. Tsuruoka, 2013 ABPC 295

I generally agree with the comments of Conrad J.A. in Hilderman,(  2005 ABCA 249 (CanLII)) supra, at para. 20:

Any rehabilitation during pre‑trial house arrest is excellent for society and an objective in sentencing. That does not mean a sentencing judge cannot still impose the sentence he or she deems necessary to comply with all of the sentencing principles, including denunciation at the time of sentencing. The sentencing judge is not required to give a mathematical deduction. The court will merely have to consider what impact the pretrial house arrest should have on the sentence he or she eventually imposes.

In the circumstances of this case, based upon those authorities I give him a credit of one-third of 824 days or 275 days

R. v. Penney, 2008 ABPC 339

r. Penney was on bail for seven and one half months. During that period he was subjected to 18 bail conditions. The most restrictive bail condition dealt with house arrest. This condition was subject to a number of exceptions including: employment, lawyer’s appointments, religious observances, attending at counselling sessions, voting, and reporting to his bail supervisor once per week. He was subject to counselling for gambling addiction, substance abuse, and psychiatric counselling. He was prohibited from having drugs and alcohol and subject to a voluntary enforcement order relating thereto.

[78]            Certainly, some of those conditions, especially the house arrest condition, restricted his liberty.

[79]            Mr. Royal submitted that the time spent by the offender on restrictive bail conditions should be credited to reduce his sentence. Further, he submitted that the appropriate credit was nine months. Mr. Royal conceded that a two for one credit for the bail restrictions was not appropriate.

In my view, the impact on his liberty toward the end of his bail was not much different than many normally employed people. As such I decline to give him nine months credit for time while on bail. I will give him four months credit for the time while on bail. In my view, this is an extremely charitable result for him.

R. v. Coupal, 2010 ABQB 229

Impaired causing death case

[36]           On the material before me, Mr. Coupal’s bail conditions allowed him to carry on his employment and a number of other normal activities, such as going to his children’s soccer games, shopping and other special events. While the conditions no doubt impacted his liberty and he was closely monitored, I am of the view that a one-for-one credit, as sought by counsel for Mr. Coupal, is overly generous and I decline to give such credit on a one-to-one basis. I do however, take it into account as a mitigating factor.

If I was sentencing Mr. Coupal after trial, I would consider a sentence for the impaired causing death and the impaired causing bodily harm in the range of six years, taking into account the aggravating factors including his prior impaired conviction and prior alcohol-related traffic offence. However, in taking into account Mr. Coupal’s guilty plea, which is a strong mitigating factor, his pre-trial custody and his release conditions, I sentence Mr. Coupal to four years imprisonment on the impaired causing death count and four years concurrent on each of the two impaired causing bodily harm counts.

R. v. Salter, 2009 ABCA 220

Trial judge’s sentence not interefered with, trial judge took house arrest into account, serious assault, multiple stabbings, and other offences, sentence of 2 years less a day

R. v. Morrisseau, 2010 ABPC 404
[98]           In real terms, Mr. Morrisseau’s ability to work in the community over the entire time of his release has been foreclosed.  His ability to attend school has also been restricted except in the later stages of his release.  Given Mr. Morrisseau’s youth and the length of time he has lived under these restrictions, he is deserving of some reasonable and discernable credit against his sentence.  The effect of these restrictions must be tempered by recognizing he had some opportunity to attend school, pursue rehabilitation and retain some limited movement in the community under supervision.

[99]           I also cannot overlook the fact that Mr. Morrisseau’s record for compliance under these restrictions wasn’t perfect.

[100]      All considered, I am still prepared to exercise my discretion to reduce his sentence given the unique nature of these restrictions and the particular history of Mr. Morrisseau’s release.  A reduction against his pre-credit sentence on a one-for-two basis would be unsuitable in the circumstances.  Something in the order of one day for each three days of the 582 days he has spent on release is more appropriate.

R v White, 2016 ABQB 24

Having regard to the conditions imposed on Mr. White, and recognizing that in the main, he was able to work and raise his son during the entire period he was not incarcerated, I conclude that an overall credit of .5 to 1 is appropriate. Less credit than that is appropriate for the early period when he was not under house arrest; greater credit than that is appropriate for the later period. Having regard to the self-inflicted increase in the severity of conditions, I do not think that the overall average here should exceed 50 percent.

[71]           Mr. White is thus entitled to credit for half of 1,143 days, or 572 days, on account of judicial interim release conditions.

R v PF, 2011 ABQB 628

Pre-trial restrictions on Mr. PF’s freedom also may affect the duration of his sentence, specifically Mr. PF:

1.         spent approximately three months in pre-trial custody and if given a custodial sentence, his sentence would be reduced on a ‘two for one’ basis which would amount to approximately six months; and

2.         was released on recognizance for 3.5 years; the conditions of his release placed very strict obligations and responsibilities on Mr. PF. In this respect, Mr. PF has effectively been under “house arrest”. Specifically, the conditions of Mr. PF’s recognizance are:

[101]      I clearly have a broad discretion to reduce Mr. PF’s sentence on the basis of his pre-trial recognizance, which is acknowledged as very strict. The appellate authorities make clear that this factor is not one that ought to be applied in a strictly mathematical manner, but rather consistent with the general objectives of sentencing.

[102]      As a consequence I reduce Mr. PF’s sentence from just under 24 months to a custodial sentence of 90 days. A custodial sentence of 90 days may be served intermittently, with the offender under probation during the period he is not in custody: Criminal Code, s. 732.

R. v. Herchuk, 2011 ABPC 367

69]           As to the accused, Palmer, I am satisfied that for approximately 21 months, while on bail, he was subject to house arrest, and other stringent bail conditions that were tantamount to a Conditional Sentence Order.

[70]           I am also satisfied, based on the submissions of Defence Counsel, that his stringent bail conditions had a significant impact on him. Initially, he was required to live at his half-sister, Grace Palmer’s residence. She was newly married at the time. The residence was a small and only had 2 bedrooms. He was required to live there in close quarters with Grace and her husband, who also agreed to act as surety for him in the amount of $8,000. As a result of his presence, there was stress in the marriage which ultimately led to early separation and divorce. The divorce caused a rift between Grace and her father. With the divorce, the Accused’s bail conditions had to be reviewed and amended by this Court during the trial. He was taken into custody pending this Court’s review. On being re-released, he moved into another modest residence with Grace in the remote outskirts of northwest Calgary. There was no public transportation in the area, and he was very much isolated there throughout the course of the trial. Getting back and forth to work, and coming to Court was a real problem for the Accused. He was also prohibited from associating with his girlfriend, Tamara Pejakov, except while at that residence.

[71]           The Accused’s compliance with the bail conditions in this case was onerous, and I agree with the submission of Defence Counsel, that he is entitled to a pre-trial bail credit of 21 months calculated on a 1:1 basis.

 

 

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