What is the effect of strict conditions of bail on the liberty of an accused?

One of the central rationales for the consideration of pretrial custody, which is the deprivation of liberty, often in worse conditions that a convicted person will experience, may also apply to strict conditions of bail that infringe the liberty of an accused person: see R v. Downes.

As MacPherson J.A. has stated in R v. Ijam, “bail is not jail”. It is also recognized that very significant pretrial constraints on liberty may result from certain sorts of bail orders, depending on the terms imposed and also on the effects of those conditions on the particular person. Those constraints, as Rosenberg J.A. noted in Downes, cannot be assumed as is the case with actual custody but require evidence or at least submissions; Downes, supra, para 28. While there can be no doubt that there are very dramatic and qualitative differences between “jail” and any sort of “bail” that allows an accused person to remain at home (whether his or someone else’s), it is difficult to see why the factors to be considered in considering credit for pretrial house arrest should not also be grounded in the rationale relating to pretrial constraints on liberty. Tempting as it may be, I can see no principled basis for determining the length of credit (if any) to be given for pretrial custody on the basis of the gravity of the offence or the aggravating factors. These are all factors that are already considered in determining the length of the sentence to begin with. It would not be appropriate, in my view, to consider them afresh and again when determining how much credit for pretrial house arrest should be given. In my view, in determining the amount of credit to be given for pretrial constraints on liberty, this court should consider: 1. the nature and extent of the constraints in an objective sense; and 2. the effect of those constraints on the particular person.