Ontario's highest court says a Windsor man shouldn't have been convicted of breaching his house arrest for the fourth time because his sentence was over - thanks to the jail time he served following three previous breaches.
Darren Richard Atkinson, 36, shouldn't have served 13 a days in jail for the fourth breach because he had completed his sentence. the Ontario Court of Appeal* says in a ruling released Thursday.
The issue was whether Atkinson should get credit for the time he spent in jail awaiting bail hearings on the previous three breach charges, said his lawyer Ken Golish.
The Crown prosecutor argued he shouldn't. The appeal court agreed with Golish's position, that Atkinson should be credited with all the time he spent in jail except for the time from when he was charged with a breach until he made his first court appearance.
The ruling clarifies what has become a complicated formula for clocking time served by those subject to house arrest - also called conditional sentences, Golish said.
Atkinson was sentenced to two years less a day under house arrest after pleading guilty on April 14, 2000, to sexual assault. Unlike criminals sentenced to jail, those serving conditional sentences at home must put in the full time. Had Atkinson not breached the conditions of his house arrest, his sentence would have been completed April 12, 2002.
But it was shortened by two months because of the jail sentences he was given for each breach charge. That's because most prisoners who serve two-thirds of their sentences and are released are given credit for serving the full time, Golish said.
So when Atkinson served five days in jail for his first breach he was given seven days credit toward his sentence. When he served 40 days for the second breach, he was given 60 days credit. When he served 80 days for the third breach, he was given 120 days credit.
None of that was disputed at the appeal hearing, Golish said. The legal victory, however, is not the end of Atkinson's journey through the courts. When he was arrested Feb. 19, 2002, on the breach charge for which the appeal court says he shouldn't have been convicted, he was in a car with another man. The police found drugs and also charged Atkinson with possessing a controlled substance. That case is still before the courts,** Golish said.***Windsor Star
*Right click to read full decision.
**Charge withdrawn July 2003.
****Right click to read full pdf version.