R. v. Bullens, 2021 ONCA 421

Case Summary

The appellant, Ian Bullens, appealed his sentence, arguing the sentencing judge erred by not granting a "Downes credit" for stringent bail conditions that allegedly prevented him from seeing his children. The Court of Appeal found no error in principle, noting that the issue was not fully brought to the sentencing judge's attention and that Downes credits are reserved for "stringent" conditions, which were not met in this case. The conviction appeal was abandoned, and the sentence appeal was dismissed.

Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2021-06-14 Docket: C66649

Before: Benotto, Trotter and Nordheimer JJ.A.

Between: Her Majesty the Queen, Respondent And: Ian Bullens, Appellant

Counsel: Ian Bullens in person Ingrid Grant, as duty counsel Philippe Cowle, for the respondent

Heard: June 9, 2021 by video conference

On appeal from the sentence imposed on April 20, 2017 by Justice Alfred O’Marra of the Superior Court of Justice.

Reasons for Decision

[1] At the outset of the hearing, Mr. Bullens confirmed that he was not pursuing his conviction appeal. With respect to his sentence appeal, the only issue to be addressed is the sentencing judge’s failure to accord Mr. Bullens a credit of 3 to 5 months based on the principle from R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.).

[2] The appellant says that, throughout the period he was on bail, he was prevented from seeing his children because they lived in a different city. The appellant was restricted by the conditions of his bail to his home, except for work or in the presence of his surety, which made travelling to see his children impossible. He submits that this impact on him warrants a Downes credit and the sentencing judge erred in not giving him that credit.

[3] We do not agree. We begin by noting that it does not appear that the situation regarding the appellant’s children was brought to the sentencing judge’s attention. Hence, his reference to the “paucity of evidence to suggest any significant interference with [the appellant’s] liberty while on bail”.

[4] In any event, there is always a measure of interference with a person’s liberty interests that arises from being on bail. That is why the issue of giving credit for such conditions is generally reserved for situations where the bail conditions are “stringent”. It follows from that fact, as noted in Downes (at para. 33), that “the circumstances may dictate that little or no credit should be given for pre-sentence house arrest”.

[5] There was no error in principle arising from the sentencing judge’s determination that no credit should be given to the appellant arising from his bail conditions. There is, consequently, no basis upon which this court can properly interfere with that decision.

[6] The conviction appeal is dismissed as abandoned. Leave to appeal sentence is granted but the appeal is dismissed.

“M.L. Benotto J.A.”

“Gary Trotter J.A.”

“I.V.B. Nordheimer J.A.”