Stringent Bail Conditions Can Be Mitigating Factor in Sentencing

Written on behalf of Barrison Law
white metal bars in jail cell

Sentencing in criminal cases can be complex and vary greatly depending on the type of offence. For some offences, convicted individuals may receive a costly fine. For others, community service will suffice. And, of course, other crimes may call for imprisonment. But how does a court determine what is an appropriate sentence?

Sentencing requires weighing many factors, which explains why sentences for the same offences can differ between cases. In a recent Ontario Court of Appeal decision, the appellant successfully argued to have his sentence reduced as the court below failed to consider the mitigating effects of his bail conditions.

What is the purpose of sentencing?

Section 718 of the Criminal Code of Canada explains why convicted offenders are given a sentence when found guilty:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

  1. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
  2. to deter the offender and other persons from committing offences;
  3. to separate offenders from society, where necessary;
  4. to assist in rehabilitating offenders;
  5. to provide reparations for harm done to victims or to the community; and
  6. to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims or to the community.

While one of these objectives does not trump the others, the weight of each varies depending on the circumstances of the case. Additionally, other offences follow different legislation. For example, the sentencing principles for drug offences are contained in the Controlled Drugs and Substances Act and the Cannabis Act.

What are the principles of sentencing in Canadian criminal law?

In addition to these purposes, the principles of sentencing are relevant too. Section 718.1 of the Criminal Code sets out the fundamental principle of sentencing. Specifically, a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender.”

To determine this, the court weighs aggravating and mitigating factors. Aggravating factors militate in favour of a harsher sentence, while mitigating factors may influence the court to reduce the sentence. Each of these kinds of factors can be different in practice. For instance, an aggravating factor in a manslaughter case could be that the offender did not call for medical attention to the victim of the crime, who may have otherwise survived. By contrast, a mitigating factor could be that the accused’s rights under the Canadian Charter of Rights and Freedoms were breached.

Appellant received 4.2 months’ credit for pre-sentence custody time

In the recent Ontario Court of Appeal decision of R v. Schlaepfer, the Court considered the mitigating effect of the appellant’s bail conditions on his sentence. The appellant was detained in March 2016. He was released on interim judicial release (bail) just over two months later, in May 2016. 

The appellant experienced difficult conditions while held in pre-sentence custody as he could not receive timely medical and dental treatment. His methadone treatments dropped from 65 to 30 milligrams a day, causing him to suffer painful withdrawal symptoms, sweating, and weight loss. He also had a chipped tooth that went untreated and caused a gum infection and significant pain.

In February 2018, the accused pled guilty to offences related to cannabis grow operation on a property he owned and leased to tenants. He was sentenced to 14 months of custody in June 2019 and received 4.2 months’ credit in recognition of his pre-sentence custody time and the hardships he experienced with his health during that time.

Sentencing judge determined bail conditions not grounds for further reduction of sentence

At the original sentencing, the appellant argued that his sentence should be further reduced due to the mitigating effect of his bail conditions. This argument was grounded on the Ontario Court of Appeal’s decision in R. v. Downes, which states that time spent under stringent bail conditions must be considered as a mitigating factor in sentencing.

The sentencing judge held that no further reduction in the appellant’s sentence was warranted under the Downes principle. He found that many of the delays in the case were caused by the appellant’s own actions. Specifically, the judge pointed to the appellant’s decision to call a correctional centre representative to testify about his care while in pre-sentence custody and his delay in entering a guilty plea until the eve of trial.

Moreover, the sentencing judge held that the appellant was able to obtain the necessary medical services and otherwise had a clean bill of health. Finally, the sentencing judge noted that the appellant could have applied to have his bail conditions varied. In total, after the 4.2 months’ credit, the appellant had 9.8 months left of his sentence to serve. 

Sentencing judges’ decisions must be given deference by appellate courts

The convicted offender appealed the judge’s decision to the Court of Appeal. The Court of Appeal acknowledged the principle in Downes but also noted that it must show deference to the sentencing judge’s decision. The Court stated that sentences should only be varied where “the sentencing judge has committed an error in principle, failed to consider or overemphasize a relevant factor, or if the sentence is demonstrably unfit.”

Bail conditions mitigating factor for further reduction of sentence: ONCA 

The Court of Appeal assessed three factors in deciding the appeal: delay, misapprehension of the evidence, and the possibility for the appellant to amend the conditions of his release.


On the issue of delay, the Court of Appeal found that the sentencing judge’s conclusion that the delays were exclusively the appellant’s fault was unsupported. The most significant delay was attributed to acquiring medical records from the Central North Correctional Centre. The delay was related to finding a witness to attend for cross-examination and the time it took the custodial institution to provide this evidence on crucial issues at trial.

The Court held that this type of delay should not have affected the credit the appellant received for pre-sentence custody, particularly as there was no poor conduct on the part of the appellant.

Misapprehension of the evidence

The Court of Appeal also found the sentencing judge was incorrect when he concluded that the appellant’s bail conditions were not onerous. While the sentencing judge stated that the appellant could obtain medical treatment, he did not consider that the appellant had been moved from an established treatment team in Guelph to live with his surety in Sudbury. The appellant went three years without adequate medical care until he was finally diagnosed with fibromyalgia. Between 2016 and 2018, the appellant experienced “chronic and untreated widespread pain, mental fog, memory lapses, blurred vision, hearing problems, and emaciation.”

Possibility of amending bail conditions

Finally, the Court of Appeal found the sentencing judge had erred with respect to his assertion that the appellant could have amended the conditions of the appellant’s interim judicial release (bail).  While the appellant was able to have the conditions amended on two occasions concerning his curfew, he had previously been refused consent when requesting to travel overnight alone to obtain medical treatment with his former medical team.

The criteria for determining sentence do not include “whether the accused sought to review onerous conditions that were imposed by a court at the request of the Crown.” Instead, the question is whether the conditions imposed were akin to punishment, which would warrant mitigation. The impact of the bail conditions must be considered, not whether the appellant moved to alter them. 

As a result of the above findings, the Court of Appeal altered the appellant’s sentence to include a further five months credit (plus three days that originally were meant to be included and which the Crown acknowledged had been incorrectly omitted by the sentencing judge).

Contact Barrison Law in Oshawa for Experienced Criminal Defence Advocacy

Barrison Law understands the complexity of the principles of sentencing and the serious legal consequences that can arise when they are not fairly considered. Our team of skilled criminal defence lawyers advocates for clients at every stage of the process, including bail hearings, trial, and sentencing. We are also experienced in defending clients against a wide variety of criminal offences, including drug offences, assault, and murder/manslaughter

Our office is conveniently located just steps from the Durham Consolidated Courthouse. We accept cases on private retainer and Legal Aid and offer 24-hour phone service. To schedule a confidential consultation on your criminal law matter, call us at 905-404-1947 or reach out online.