“We are not presently in normal circumstances”: How COVID-19 is Impacting Bail and Sentencing

  • April 28, 2020
  • Teddy Weinstein and Natasha Donnelly

The COVID-19 pandemic has arrived in Canada, and with it has come a complete upending of every aspect our lives. The criminal justice system is no exception. Across Canada, provincial and federal courts have closed, denying access to both the public and to practitioners except in exceptional and urgent circumstances. Jails, prisons and psychiatric facilities have also been impacted. As fears of institutional outbreaks rise, measures to protect the population are being taken.

However, these concerns do not override the admissions process to correctional facilities, as on March 25, 2020, a man who had tested positive for COVID-19 was admitted to Toronto South Detention Centre, the second-largest jail in Canada. As of April 21, 2020, a jail in Brampton Ontario has temporarily shut down after 60 inmates and 8 staff tested positive for coronavirus. Mission Institution federal correction centre in British Columbia has over 75 cases, and fears of further outbreaks across the country are high and likely to increase as the pandemic continues.

Fortunately, jurists have begun to take notice of how the pandemic represents a heightened risk to inmates in correctional institutions, and have reacted accordingly in making their decisions on bail and sentencing. In the recent decision of R v Hearns, 2020 ONSC 2365, Pomerance J wrote:

In normal circumstances, the period of pre-sentence custody, while significant, might be seen by some to fall short of reflecting the seriousness of the offence and moral blameworthiness of the offender. However, we are not presently in normal circumstances…The risk of infection is, by necessity, higher in custodial institutions, where conditions – cramped quarters, shared sleeping and dining facilities, lack of hygiene products – make it difficult, if not impossible, to implement social distancing and other protecting measures.

The risk of infection is a risk not only to the people in custody but a risk for the community at large. The courts must, as always, examine the specific circumstances of each case, as contemplated in R v Lacasse, and consider any extraneous circumstances, such as in R v Nasogaluak. They must also weigh the punitive impact and heightened risk to people being ordered by the state into locked, cramped quarters without proper protective means.

Bail is another area that is significantly impacted by COVID-19. A number of bail review decisions from the Ontario Superior Court have been produced in the context of the pandemic. In R v JS, 2020 ONSC 1710, Copeland J wrote:

In my view, the greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on house arrest is a factor that must be considered in assessing the tertiary ground [of bail review].

Justice Molloy also takes notice of this in R v TL, 2020 ONSC 1885, affirming Copeland J’s observation and noting that transmission of the virus is much easier in an institution than in a private home. This can already be seen in the institutional spread in long-term care homes, a harbinger of the havoc that can be caused by institutional spread. His Honour clearly articulates that the interests of society as a whole are to release people who can be properly supervised outside of these institutions. This protects three populations: those who must be housed in the institutions, those who work in the institutions, and our community as a whole.

The wisdom in the words of Justices Pomerance and Molloy, among other judges that have examined this issue, is undeniable. How can someone asking for release or reasonable bail possibly be denied, given the circumstances? It is in the interests of everyone that prosecutors and defense counsel co-operate to keep prisoners out of institutions and release those already being held.

An open letter signed by more than 100 health professionals calls for the release of as many prisoners as possible. Criminal lawyers on both sides can do their part by advocating for release, suspended sentencing, and out-of-custody bail through joint submissions. This is also a prime opportunity to advance restorative justice solutions and to divert lesser charges out of the criminal justice system and into social programs, mental health court, and direct accountability programs.

We have a chance to make a positive outcome of a horrible situation. Here is hoping the profession and the public have the courage to do so.


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