You were charged with a criminal offence, such as sexual interference, and released on bail; however, it does not feel like liberty as the conditions on the bail recognizance are incredibly strict. Some examples of strict bail conditions are: house arrest except while in the presence of your surety; limitations on your ability to see family; a curfew; or a condition denying you the ability to go to school or work. These restrictions can be very difficult and limiting for accused persons to go about living their lives. Some would equate the conditions to being in custody; however, bail is not jail.
In most cases, an accused person who spends time in custody prior to being sentenced gets credit for that time, normally on a 1.5 days credit for 1 day in custody. It is in most cases a mathematical equation. The same is not true for when the Judge is dealing with credit for strict bail conditions. Strict bail conditions can reduce an accused’s sentence but it is not a mathematical equation. In the case of strict bail conditions it is to be treated by the sentencing Judge as a mitigating factor. Like all mitigating factors it can have a large impact on sentence or a smaller impact on the ultimate sentence. This is left to the discretion of the sentencing Judge. As it is treated as a mitigating factor there is no set formula for a sentencing Judge to apply.
There are a number of factors the Judge will consider when determining the credit to be applied for the conditions. These factors are: length of time spent under house arrest; the stringency of the conditions; the impact on the offender’s liberty; and the ability of the offender to carry on normal relationships, employment, education and activity. One factor the Judge will consider is whether the conditions would be expected given the type or seriousness of the criminal charges. In some cases, serious charges are expected to garner more restrictive conditions. In addition, for certain types of offences there are conditions that would be expected for that type of offence. For example, it would be expected, and therefore not necessarily mitigating, that an accused person charged with possession or distributing child pornography have a condition that limited use of computers.
When seeking credit for strict bail conditions there are a few things the accused should keep in mind. There is an onus on the accused to establish the impact of the strict conditions on him or her. In many cases there has still be credit given when no evidence to support this has been called. Judges have also considered whether the accused person applied to vary his or her conditions in order to reduce the effect of hardship on them. A Judge would not give as much weight to this mitigating factor if an accused person sat by on house arrest and did not attempt to vary the conditions.
Besides being on house arrest Judges have considered mitigating conditions that reduce the accused’s ability to engage in important relationships. If conditions were such as to limit an accused’s ability to participate in his or her family or have quality time with children it could increase the credit given even if the conditions did not amount to house arrest.
If an accused person breaches conditions while on strict bail conditions that does not necessarily disentitle them credit for the time that was spent on strict conditions; however, a Judge may then give little or no weight to the strict conditions as a mitigating factor.
Despite strict bail conditions being relevant as a mitigating factor and not as a set mathematical formula, courts have continued, in many cases, to do a calculation as they would for pre-sentence custody. In this vein, the amount of credit given is never one for one but more in line with a range of .5 to .2 days credit for 1 day spent on strict conditions.
To sum up, speak to your lawyer to ensure you are able to use this mitigating factor to your benefit, by applying to vary conditions and ensuring you can present evidence at your sentencing hearing that would demonstrate the hardship caused by your conditions.