R. v. Downes (C.) (2006), 208 O.A.C. 324 (CA)
MLB headnote and full text
Temp. Cite: [2006] O.A.C. TBEd. FE.065
Her Majesty The Queen (respondent) v. Colin Downes (appellant)
(C43604)
Indexed As: R. v. Downes (C.)
Ontario Court of Appeal
Rosenberg, Feldman and Juriansz, JJ.A.
February 14, 2006.
Summary:
The accused was convicted of three counts of forcible confinement, two counts of assault, one count of criminal harassment and one count of uttering a death threat. The charges arose out of a series of events over a seven month period and involved a former girlfriend of the accused. The accused was sentenced to a total of 21 months’ imprisonment. He appealed the sentence, arguing that the sentencing judge erred in failing to take into account his 18 months of pre-sentence house arrest resulting from stringent bail conditions.
The Ontario Court of Appeal allowed the appeal and reduced the total sentence by five months, where the sentencing judge erred in failing to consider the time spent on stringent pre-sentence bail conditions as a mitigating factor in imposing sentence.
Criminal Law – Topic 5848.2
Sentencing – Considerations on imposing sentence – Time already served (incl. bail) – The accused was convicted of three counts of forcible confinement, two counts of assault, one count of criminal harassment and one count of uttering a death threat – The charges arose out of a series of events over a seven month period and involved a former girlfriend of the accused – The accused was sentenced to a total of 21 months’ imprisonment – He appealed the sentence, arguing that the sentencing judge erred in failing to take into account his 18 months spent on pre-sentence house arrest resulting from the stringent bail conditions – He was 27 years old – Prior record – The Ontario Court of Appeal held that the sentencing judge erred in failing to explain why he decided not to consider time spent under stringent bail conditions as a relevant factor – The court held that the appropriate credit for the 18 months spent on bail under house arrest conditions in this case was five months and therefore reduced the total sentence to 16 months – See paragraphs 41 to 47.
Criminal Law – Topic 5848.2
Sentencing – Considerations on imposing sentence – Time already served (incl. bail) – The Ontario Court of Appeal discussed the relevance of bail conditions in determining sentence – The court stated that time spent under stringent bail conditions, especially under house arrest, should be taken into account as a relevant mitigating circumstance on sentencing – However, like any potential mitigating circumstance, there would be variations in its potential impact on the sentence and the circumstances might dictate that little or no credit should be given for pre-sentence house arrest – A rigid formula was not appropriate; rather a flexible approach should be adopted by the sentencing judge – The court stated that it was incumbent on a sentencing judge to explain why the judge decided not to take pre-sentence house arrest into account – See paragraphs 23 to 37 – The court summarized in point form how credit for pre-trial bail conditions should be approached – See paragraph 37.
Criminal Law – Topic 5861
Sentence – Assault – [See first
Criminal Law – Topic 5848.2
].
Criminal Law – Topic 5868
Sentence – Forcible confinement or seizure – [See first
Criminal Law – Topic 5848.2
].
Criminal Law – Topic 5895
Sentence – Threats – [See first
Criminal Law – Topic 5848.2
].
Criminal Law – Topic 5969
Sentence – Criminal harassment – [See first
Criminal Law – Topic 5848.2
].
Cases Noticed:
R. v. Bates (D.R.) (2000), 134 O.A.C. 156; 146 C.C.C.(3d) 321 (C.A.), refd to. [para. 16].
R. v. Wust (L.W.) (2000), 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 143 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 23].
R. v. Tallman, Tallman, Laboucan and Auger (1989), 94 A.R. 251; 48 C.C.C.(3d) 81 (C.A.), refd to. [para. 24].
R. v. Vermette (I.M.) (2001), 156 Man.R.(2d) 120; 246 W.A.C. 120; 154 C.C.C.(3d) 193 (C.A.), refd to. [para. 24].
R. v. Pangman – see R. v. Vermette (I.M.).
R. v. Mills (D.J.) (1999), 119 B.C.A.C. 284; 194 W.A.C. 284; 133 C.C.C.(3d) 451 (C.A.), refd to. [para. 24].
R. v. McDonald (C.) (1998), 111 O.A.C. 25; 127 C.C.C.(3d) 57 (C.A.), refd to. [para. 24].
R. v. Lapierre (1998), 123 C.C.C.(3d) 332 (Que. C.A.), refd to. [para. 24].
R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 112 C.C.C.(3d) 97 (C.A.), refd to. [para. 24].
R. v. Millward (R.C.) (2000), 271 A.R. 372; 234 W.A.C. 372; 89 Alta. L.R.(3d) 20 (C.A.), refd to. [para. 25].
R. v. Gregory (P.D.) (1995), 132 Nfld. & P.E.I.R. 169; 410 A.P.R. 169 (P.E.I.C.A.), refd to. [para. 25].
R. v. Hilderman (A.E.D.) (2005), 371 A.R. 4; 354 W.A.C. 4 (C.A.), refd to. [para. 26].
R. v. Proulx (J.K.D.) (2000), 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 140 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 29].
R. v. Hanna (B.), [2000] O.T.C. 676 (Sup. Ct.), refd to. [para. 30].
R. v. Lepore (V.), [2001] O.T.C. 479 (Sup. Ct.), refd to. [para. 30].
R. v. J.S.G., [2003] Y.J. No. 42 (Terr. Ct.), refd to. [para. 30].
R. v. Porter, [2001] B.C.J. No. 1826 (Prov. Ct.), refd to. [para. 30].
R. v. Hilderman (A.E.D.) (2004), 369 A.R. 28 (Q.B.), affd. (2005), 371 A.R. 4; 354 W.A.C. 4 (C.A.), refd to. [para. 30].
R. v. Lau (W.T.) (2004), 357 A.R. 312; 334 W.A.C. 312; 193 C.C.C.(3d) 51 (C.A.), refd to. [para. 31].
R. v. Spencer (T.-A.) (2004), 188 O.A.C. 363; 186 C.C.C.(3d) 181 (C.A.), refd to. [para. 31].
R. v. Perreault (D.J.) (2005), 211 B.C.A.C. 253; 349 W.A.C. 253; 197 C.C.C.(3d) 183 (C.A.), refd to. [para. 32].
R. v. G.C.F. (2004), 189 O.A.C. 29; 188 C.C.C.(3d) 68 (C.A.), refd to. [para. 34, footnote 1].
Counsel:
Colin Downes, in person, assisted by duty counsel, Delmar Doucette;
Susan Chapman and Leslie Paine, for the respondent.
This appeal was heard on September 29, 2005, before Rosenberg, Feldman and Juriansz, JJ.A., of the Ontario Court of Appeal. Rosenberg, J.A., delivered the following judgment for the Court of Appeal which was released on February 14, 2006.
