In R. v. Downes 2006 CanLII 3957 (ON CA), (2006), 79 O.R. (3d) 321, the Court of Appeal for Ontario held that, where an accused is the subject of "stringent pre-trial bail conditions" including time spent effectively under "house arrest," this mitigating circumstance must be taken into account and given some weight in the sentencing of the accused. More specifically, Rosenberg J.A., delivering the judgment of the Court, held that, in the circumstances, in relation to the 18 months the accused was on bail and subject to a condition of "house arrest" that required him to remain in his residence "except in the company of his surety," the accused was entitled to 5 months credit. In summarizing the proper approach to the consideration of this issue, Rosenberg J.A. stated, at para: 37:
In summary, credit for pre-trial bail conditions should be approached in the following manner:
• 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.