COVID-19

Rising Numbers of Opioid Overdoses in Canada

Written on Behalf of Affleck & Barrison LLP

As our attention focuses on the mounting death toll plaguing our country and the entire world related to COVID-19, the numbers of those overdosing from opioids in Ontario is also on the rise.

Dr. Theresa Tam, Canada’s chief public health officer, has recently brought the frightening nationwide trend to the attention of the public.

According to federal data, more than 14,000 Canadians have died due to opioids in the last four years.

In Ontario, there has been a 25% increase in fatal drug overdoses from March to May 2020 in comparison to the same three month period last year.

Other provinces in Canada have also seen an increase of drug overdoses in the last few months. Alberta has reported an increase in opioid-related EMS calls from 257 in March to 550 in May of this year.

British Columbia has seen a 39% increase in overdose deaths in April of 2020 compared to the same month last year.  B.C. also reported 170 deaths from overdose in May 2020, which was more than the number of COVID-19 deaths that month.  During the three months that government measures of social distancing were put in place, more than 400 deaths due to overdose were recorded in B.C. as well.

CONTRADICTORY MESSAGES FOR DRUG USERS

Although overdose prevention sites continue to operate, physical distancing guidelines result in less individuals being able to use these services.  These sites provide a space for those who use drugs to safely consume them and receive overdose response measures if necessary.

Recently, overdose prevention sites have changed their layouts, installed barriers and served fewer clients at a time or by appointments to ensure physical distancing measures were being employed.  It has been reported that one site of this nature in Toronto that had an average of 100 visits a day is now seeing half of that number.

Staff who work at these supervised consumption sites began using personal protective gear while meeting with clients and during street outreach.  Some clients became upset encountering staff dressed in this manner.  Some felt that staff were sending them a message that they were dirty or that they have a disease. 

The new measures to protect against COVID-19 may also cause difficulty for staff to establish and maintain trust with clients given all the physical barriers now employed. 

These new safety measures are also entirely contradictory to the strategies that staff traditionally use to help drug users.  Typically those that consume drugs are told never to use alone, whereas now they are being told to stay home and physically distance themselves from others.

SOCIAL ISOLATION MAY BE CONTRIBUTING TO THE OPIOID CRISIS

Feelings of stress, uncertainty, social isolation, and loss of access to services may also be contributing to the rising overdoses in Canada. 

Those individuals who were actively using drugs at the beginning of the pandemic may be increasing their consumption.  Those that were in recovery may have begun using drugs again, especially if they have encountered losses related to the pandemic or the loss of supports that they once had as a result of the pandemic.

Another factor to consider in the rising number of overdoses may be the additional access to money through the Canadian Emergency Response Benefit (CERB) offered by the government. 

COVID-19 IMPACTS THE DRUG SUPPLY CHAIN

During COVID-19, it is harder for individuals to access their drug of choice. 

Disruption in international travel and closed borders due to the pandemic has made the unregulated drug supply very unpredictable, and possibly more toxic.  As it has become harder to acquire substances from overseas, dealers and users are using whatever ingredients are available.

According to Guy Felicella, of the British Columbia Centre on Substance Use:

When (drugs become) more challenging to get, the potency goes up, the price goes up, everything goes up, and in that sense it becomes more deadly by the day.

DEMAND FOR MORE FUNDING AND DECRIMINALIZATION OF ILLEGAL DRUGS

Public health officials throughout Canada are pressuring the federal government for more funding for a safe supply of drugs in their provinces and cities. 

A recent report from Dr. Eileen de Villa, Toronto’s medical officer of health, outlines the growing concern in Canada:

The ongoing opioid poisoning crisis in Toronto and across Canada has intensified and been further compounded by the COVID-19 global pandemic.  These dual public health crises are having significant impacts on people who use drugs in our community as well as their families, friends and loved ones.  Services that people rely on, many of them lifesaving, have closed or significantly reduced their service hours and/or capacity.

In addition to extra funding, Dr. Eileen De Villa is requesting that the federal government decriminalize illegal drugs for the duration of the pandemic.  This suggestion is made in an effort to promote a public health approach to the problem and not a criminal justice approach.

According to Nick Boyce, director of the Ontario Harm Reduction Network:

Laws actually incentivize drug dealers and suppliers to come up with new and different drugs.  We learned this lesson in the 1920s with alcohol prohibition where people switched from drinking beer to toxic moonshine.  We’re seeing that with the opioid drug supply now.

As both the federal and provincial governments continue in their efforts to tackle the opioid crisis in Canada as well as the current pandemic, Affleck & Barrison LLP will continue to provide updates through this blog.

If you have been charged with a drug related charge or have questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice. 

Constitutional Challenge Filed by Prisoner Alleging Breach of Charter Rights

Written on Behalf of Affleck & Barrison LLP

Sean Johnston, a federal prisoner serving a life sentence for murder, has filed an application in federal court against Canada’s Attorney General and Correctional Service of Canada (“CSC”).  Johnston is currently serving his sentence in Ontario’s medium security Warkworth Institution.

Johnston, along with five human rights organizations including the Canadian Civil Liberties Association and the Canadian Prison Law Association, allege that CSC cannot keep prisoners safe as they are unable to ensure proper physical distancing measures are implemented without reducing the prison population.

According to CSC, two prisoners have died of COVID-19 and 333 prisoners have tested positive with COVID-19 in Canada.

ALLEGATIONS AGAINST THE GOVERNMENT

Johnston’s application alleges that the government’s failure to protect the health of the prisoners during the COVID-19 pandemic violates the liberties set out in the Charter of Rights and Freedoms

As there is currently no vaccine or approved treatment for COVID-19, physical distancing is the principal protection against contracting the virus.  It is alleged that the government has failed to take steps to transfer low-risk inmates to community supervision and has failed to implement appropriate infection control measures in their facilities, including testing, hand-washing and comprehensive cleaning of common areas.

According to Johnston:

Physical distancing measures in prison have been grossly inadequate.  Some of us remain double-bunked and cannot achieve physical distancing within our own cells, let alone throughout the institution.

The lawsuit alleges that:

Federal prisoners are disproportionately at risk both of contracting COVID-19 due to the nature of the penitentiary environment, and of suffering severe adverse outcomes including death, due to the prevalence among the federal inmate population of pre-existing vulnerabilities.

The lawsuit also alleges that some prisoners are resorting to the use of lockdowns (being confined to their own cells for indefinite periods of time), which is similar to segregation, in order to reduce the spread of the virus. 

According to the lawsuit, Johnston has served 28 years in prison and suffers from diabetes, heart problems, asthma, sleep apnea, post traumatic stress disorder and experiences blood clots.  He also uses a medical machine for asthma, which may increase the spread of the virus.  It is alleged that Johnston is a medically-vulnerable inmate and he and prisoners like him should be released and allowed to self isolate in the community.  Failing to do so is a breach of his rights under the Charter.

None of the allegations by Johnston have been proven in court. 

CLASS ACTION LAWSUIT AGAINST CORRECTIONAL SERVICE CANADA

Representative plaintiff, Joelle Beaulieu (“Beaulieu”), an inmate at the federal women’s prison in Joliette, Quebec that reports the most confirmed cases of COVID-19, has commenced an application for a class action lawsuit against CSC. 

It is alleged that CSC failed in their duty to protect vulnerable inmates from the spread of the deadly virus.  It is further alleged that federal prison officials were slow to implement preventative measures at the prison. 

Beaulieu’s action seeks $100 per day for all federal inmates since March 13, 2020 (the day when Quebec declared a medical emergency), and an additional $500 lump sum for those who contracted COVID-19.

Beaulieu claims that she was “patient zero” in the outbreak of the virus that has affected more than half of the 82 residents at Joliette Women’s Institution.  It is alleged that Beaulieu was forced to clean high-traffic common areas wearing only gloves.  Her requests for masks or other protective equipment were denied on three occasions.

According to the Statement of Claim, when Beaulieu began experiencing symptoms that included fever and muscle pain, she was given Tylenol and sent back to her unit.  Beaulieu alleges that a nurse told her she couldn’t have contracted COVID-19 as she had not travelled.  She was finally tested for the virus after suffering from symptoms for a week and had transferred units several times.

It is further alleged that as a result of testing positive, Beaulieu was detained in her cell all day, except for 15 minutes per day.  Her requests to speak with an Indigenous elder or mental health consultant were ignored.

None of the allegations have been proven in court and the Quebec Superior Court has not as of yet authorized the class action application.

THE CANADIAN GOVERNMENT’S RESPONSE

Public Safety Minister Bill Blair reported earlier this month in a government briefing that “literally hundreds” of Canadian inmates have been released from prison given the COVID-19 pandemic.  He has also assured the public that the government, CSC and the Parole Board have taken “a number of significant steps” to ensure the health and safety of the inmate populations.

It is unclear as to how many inmates have actually been released in an effort to prevent the spread of COVID-19 amongst the prison population in Canada.

Minister Blair has declined to comment on Johnston’s application and the CSC has responded that it is reviewing the application.

Esther Mailhot, a spokesperson for the CSC, has written:

CSC is working diligently to protect the safety of staff, inmates and the public.  Since the start of COVID-19 pandemic, management teams at all levels are engaging with local, provincial and federal public health authorities to navigate these unprecedented times.

We will continue to follow new developments regarding how the COVID-19 pandemic is affecting the Canadian justice system and will provide updates in this blog.

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  Contact our office today online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Changes in Crime Patterns During the Pandemic

Written on Behalf of Affleck & Barrison LLP

The COVID-19 pandemic and resulting shelter-in-place orders across Canada have changed the way we currently live.  According to police departments, this new reality has also changed crime rates across communities.

Since the State of Emergency has been declared, Durham Regional Police report that both emergency calls for service (down 11.3%) and urgent calls for service (down 5.5%) have decreased.  However, routine calls for service have increased by 13.5%.

Durham Regional Police report that they have received changes in the following type of calls for service during the time period between March 17 to April 22, 2020 when comparing it to the same time period in 2019:

  • Unwanted persons calls are up by 58%;
  • Suspicious persons calls are up by 38%;
  • Domestic and domestic-related calls are up by 14%;
  • Fight calls are down by 50%;
  • Theft calls are down by 21%; and
  • Motor vehicle collisions are down by 47%.

DOMESTIC VIOLENCE ON THE RISE

Under normal circumstances, a woman in Canada is killed by her intimate partner every six days according to the Canadian Women’s Foundation.  Given the current pandemic, across the globe reports of familial and intimate partner violence is increasing.  In response to this harsh reality, the Canadian government has recently invested $40 million in women’s shelters and sexual assault centres across the country.  The government has also reported that it is providing $10 million for emergency shelters for Indigenous women and children fleeing violence.

Although Durham Regional Police and York Regional Police (increase of 22%) report an increase in domestic violence calls, police departments in Brampton, Mississauga and Caledon are not seeing an increase of this nature.

Experts warn that despite the number of calls made to the police, violence within the home may still be occurring.  Specialists in the field of domestic violence are concerned that women who should leave abusive situations may be afraid to call for help.  Under normal circumstances, abused women can come up with reasons to make contact with shelters by saying they were going to work or dropping children off at school.  Given the pandemic, vulnerable women do not have this justification to leave the home as schools and workplaces are closed.

Abused women and children are stuck in their homes with their abusers.  They may also be at more of a risk due to the overwhelming stress of the current situation.  Individuals who lack coping skills might be more likely to lash out at others in their household.

Given the current situation, women who were saving money to leave an abusive situation may not be in a position to do so now as many have lost jobs and may be afraid they won’t receive child support payments given that courts are not prioritizing child support cases at this time. 

Yasmine Youssef, the National Manager for Nisa Homes, a transitional home for Muslim and immigrant women and children, reported:

We’re seeing reports coming out of China, Italy and other countries that the number of domestic violence cases have tripled since the pandemic started.  We know it’s definitely affection women that are [experiencing] abuse very heavily, because now the resources are very limited, and they’re stuck at home with their abuser 24/7.

Experts are afraid that the numbers from police departments are not reflective of the reality.  They believe that the majority of those affected by domestic violence do not call the police.  According to Marlene Ham, the executive direction of the Ontario Association of Interval and Transition Houses (OAITH):

Our fear is that there are a lot of women who are experiencing violence in their home and they may not be accessing any services or supports.  We really want women to know that those services and supports are available, and there are many entry points to getting the services they need.

For those that are experiencing abuse, in an emergency call 911 or contact the Assaulted Women’s Helpline at 1-866-863-0511 or dial #SAFE on your mobile phone.

TRAFFIC VIOLATIONS DURING THE PANDEMIC

Since the pandemic began, across Ontario there are reports of fewer traffic violations, less drunk driving and fewer cases of fraud, however, in addition to the increase in domestic violence, police are finding increases in commercial break-ins and stunt driving.

Given that the roadways are less congested, some are taking this as permission to engage in stunt driving and speeding more than 50 km/h over the limit.

Stunt driving is an offence found under the Highway Traffic Act and anyone found guilty of breaking this law can be subject to a fine between $2,000 to $10,000 and/or imprisonment for a term of not more than six months.  The driver’s licence may also be suspended if convicted.

Last weekend, OPP caught a 18-year-old driver and his 19-year-old passenger driving on the QEW near Burlington travelling at a speed of 308km/h.  The individual was charged with stunt driving under the Highway Traffic Act and was charged with dangerous driving under the Criminal Code.  His driver’s licence has been suspended for seven days and his vehicle has been impounded. 

If you have been charged with a driving related offence or a domestic violence offence, please contact the knowledgeable criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Latest News Regarding Inmates and the COVID-19 Crisis

Written on Behalf of Affleck & Barrison LLP

Last week, the Corrections Service of Canada (“CSC”) confirmed that an inmate at British Columbia’s Mission Institution, a medium security federal prison, died in hospital as a result of complications related to COVID-19.

According to reports, there are 54 inmates and 8 corrections officers at Mission Institution that have tested positive for COVID-19.  The inmate in question, whose name has been withheld from the media, died at Abbotsford Regional Hospital where a mobile medical unit has been installed to treat prisoners infected with the virus.

Throughout Canada, a total of 145 inmates have tested positive for COVID-19 at federal prisons.  The hardest hit has been Mission Institution and Joliette Institution in Quebec.  At Joliette, 48 inmates and 34 correctional officers have tested positive for the virus.

THE GOVERNMENT’S RESPONSE TO COVID-19 IN PRISONS

Public Safety Minister Bill Blair has announced that the government continues to consider measures to keep inmates, staff and communities safe and healthy during the pandemic.

The CSC has reported that masks have been issued to both inmates and corrections officers, and that correctional officers are not permitted to move between prisons.

The CSC has also taken steps to temporarily suspend inmate visits, temporary absences, work releases, institution transfers, prison programs and activities in an effort to stop the spread of the virus.

According to a statement by Minister Blair:

Our greatest responsibility is keeping Canadians safe – that includes those in our correctional institutions.  We know the unique vulnerabilities facing correctional institutions during this public-health crisis.  The situation around COVID-19 is both challenging and rapidly evolving, and our response will continue to adapt as required to prevent further tragic loss of life.

CANADA’S DEFENCE LAWYERS URGE THE GOVERNMENT TO DEPOPULATE PRISONS

The Criminal Lawyers’ Association advocates for a reduction in the number of inmates in Canada’s prisons in the interest of public safety. The Association has distributed to its 1,600 members an affidavit by physician and epidemiologist Dr. Aaron Orkin.  According to Dr. Orkin, an outbreak in prison or jail would be similar to the spread of the virus on cruise ships or in long-term care facilities.  These types of facilities all involve close quarters making it nearly impossible to contain the virus from spreading.   Dr. Orkin anticipates that the virus will make its way into every correctional facility in Canada.

The Criminal Lawyers’ Association does not believe that every inmate is an appropriate candidate for release.  According to John Hale, a criminal defence lawyer and the vice-president of the Criminal Lawyers’ Association:

Obviously there are people in the jails who are dangerous and need to be kept in to protect the community, but there are a lot of people in jail who are not dangerous who could be either serving a sentence or awaiting trial outside of jail.

FIRST INMATE WITH SERIOUS HEALTH ISSUES RELEASED FROM FEDERAL PRISON

On April 2, 2020, an application for an unescorted temporary absence was submitted on behalf of 53-year-old Derrick Snow (“Snow”), who is serving a sentence at Ontario’s Bath Institution for breaking-and-entering and theft.  Snow suffers from diabetes, pulmonary disease and has recently been diagnosed with malignant sarcoma.  Snow argued that his underlying medical conditions put him at greater risk of becoming infecting with the virus and die.

The CSC granted Snow permission to live with his sister in London, Ontario.  He will receive treatment for cancer and other ailments until his July release date.  The CSC approved Snow’s request as he did not have a violent criminal history and held that the supervision plan was appropriate and included special conditions, including an electronic monitoring ankle bracelet and a curfew.  Furthermore, the CSC decision emphasized that it was approving Snow’s request despite taking “extraordinary measures” to prevent the spread of the virus in federal prisons. 

ONTARIO HAS DRASTICALLY REDUCED ITS PRISON POPULATION

Offenders who have been convicted of a crime and are sentenced to jail of two years less a day serve their sentences in provincial institutions.  In Ontario, provincial jails typically hold between 8,000 to 9,000 inmates. 

Both Ontario and the Northwest Territories have taken extreme measures to reduce their prison populations by 25%.  To date, nearly 2,500 inmates have been released from Ontario’s prisons, making the inmate population at its lowest level since 1990.

Ontario began implementing measures to limit the spread of the deadly virus in mid-March, including reducing the number of inmates in custody.  Inmates are being carefully assessed to ensure that they are at low risk to offend.  Those that have been convicted of serious violent crimes will not be considered for early release.

ONTARIO CORRECTIONAL INSTITUTE IN BRAMPTON TEMPORARILY CLOSES

Earlier this week, the Ministry of the Solicitor General confirmed that 60 inmates and eight staff have tested positive for COVID-19 at the Ontario Correctional Institute in Brampton. 

This facility will temporarily close and 140 inmates will be moved to the Toronto South Detention Centre in Etobicoke.  During the shutdown, the facility will be professional cleaned and sterilized.

We will continue to follow new information regarding how the COVID-19 pandemic is effecting the Canadian justice system and will provide updates in this blog

If you have been charged with a criminal offence or have any questions regarding your legal rights, it is recommended that you contact an experienced criminal defence lawyer.  The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences.  Contact our office today online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Challenges for Police During Pandemic Resulting in Assault Charges Across Canada

Written on Behalf of Affleck & Barrison LLP

In this unpredictable and stressful environment that we are currently living in as we deal with COVID-19, our country’s first responders are facing unexpected challenges every day. 

Canada’s police officers are experiencing an increasing number of COVID-19 threats daily as they respond to calls from the public.  Across the country, charges of assault are being laid on individuals who are intentionally coughing or spitting on police officers.

Assault charges are considered a serious violation in Canada and are classified as a criminal act.  Charges of this nature will be tried in court, and if convicted the individual will be left with a criminal record. 

In Canada, a simple definition of assault is the intention to apply force to another individual in a direct or indirect manner, without that individual’s consent.  Only the threat of an assault is required for an assault charge to be laid, an actual injury does not have to occur.  It is essential that the individual being charged had both a direct intent to inflict harm and that there was no consent given by the individual being harmed.

Given the heightened concern of bodily fluids spreading the virus, the act of intentionally coughing or spitting on another individual with the intent to transmit a disease is certainly a factor the courts will look at, even if the victim of the crime does not become sick. 

CRIMINAL CHARGES LAID IN COUGHING AND SPITTING INCIDENTS

On April 2, 2020, police attended a home in Lethbridge, Alberta following a report of domestic assault.  A 27-year-old man was found to be in breach of the conditions of his release order.  While he was being taken into custody he coughed directly into the officer’s face.  He told officers that he had been exposed to a person with COVID-19 and hoped that the officers would get infected.  As a result of this deliberate incident, the man was charged with assault on a peace officer.

A similar incident occurred three days later in Wetaskiwin, Alberta when a man allegedly intentionally coughed on a police officer when he was arrested for breaching his court-ordered conditions.  He told police he had the virus and coughed in the officer’s face when being led to the police car and in another officer’s face when being processed.

On April 6, 2020, in Coquitlam, British Columbia, a man was charged with assault after allegedly spitting on police officers following his arrest for break-and-enter.  Prior to spitting, he had answered yes when questioned as to whether he was sick.

Similarly, in Kelowna, B.C., a man is facing a charge of aggravated assault after he allegedly spit on a police officer while he was being arrested for breaking and entering an empty home. 

Assault charges are also being laid against Canadians who are deliberately coughing on individuals who are not first responders.  On April 5, 2020, a man claiming to have tested positive for COVID-19 was charged with assault after coughing on a bus driver and transit officers who were called in to break up the altercation.

Two New Brunswick men, who had recently travelled to the Dominican Republic, have also been charged with assault after allegedly coughing on neighbours in a rooming house.  The neighbours had complained that the two men were not properly isolating themselves after they returned from vacation.  The two men  reacted to these complaints by coughing on their neighbours.

CHARGES OF MISCHIEF LAID IN ALBERTA RELATED TO COVID-19

An individual from Taber, Alberta has been charged with mischief after allegedly licking products in a store as part of a social-media prank.  According to police, a witness saw a group of four individuals enter the store and attempt to lick items with their tongue.  The witness reported the incident to store management.  The suspects were identified through a licence plate number and a 20-year-old was charged with mischief under $5,000.  The man was allegedly participating in the “COVID Challenge” on TikTok.  The store had to remove items from their shelves and sanitize the area as a result of this incident.

The criminal offence of mischief covers a broad range of conduct and typically applies in circumstances where a person obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property. 

Chief Graham Abela of the Taber Police stated:

Taber police consider this type of activity a serious breach of good citizenship and conduct that is required during this time of crisis.  Reliable and clean food supply is one of our greatest needs at this time.  To waste cleaning supplies and food from our shelves during this pandemic is unacceptable.  We will investigate and where necessary lay charges to the fullest extent of the law to help curb this type of prank.

As the province of Ontario’s response to the COVID-19 pandemic is rapidly evolving, we will continue to follow the developments and update any changes in this blog.

In the meantime, if you have been charged with an assault or have any questions regarding your legal rights, please contact our office online or at 905-404-1947.   Our business remains open and we are operating at full capacity.  The law firm of Affleck & Barrison LLP is committed to the health and safety of our community and is operating under the suggested social distancing guidelines recommended by the Canadian government and health professionals.

Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Dealing Drugs is Not an Essential Business

Written on Behalf of Affleck & Barrison LLP

As COVID-19 continues to spread throughout Ontario and the world, following the advice of the Chief Medical Officer of Health, the government of Ontario has declared a state of emergency and has responded with various out of the ordinary orders and restrictions for all citizens.  This includes the closure of public gathering spaces, physical distancing requirements, travel restrictions and temporary closure orders. 

In declaring an emergency under the Emergency Management and Civil Protection Act, this allowed the government to exercise far-reaching powers to respond to this unprecedented medical emergency. 

On March 23, 2020, Ontario Premier Doug Ford ordered all non-essential workplaces to temporarily close in an effort to battle the spread of the threatening virus.  Essential businesses such as grocery stores, convenience stores, pharmacies, gas stations, liquor stores, licensed cannabis stores and restaurants providing take out or delivery were all allowed to remain open.  The list of non-essential workplaces to temporarily close was expanded effective April 4, 2020, including the closure of licensed cannabis stores.

Police and peace officers, including special constables and bylaw officers, have been granted the power to impose fines for violating an order issued under the Emergency Management and Civil Protection Act ranging from $750 to $100,000 to individuals and a term of imprisonment up to one year.  If the individual is a director or officer of a corporation, they could be subject to a fine up to $500,000 and a term of imprisonment up to one year.  The corporation itself could be fined up to $10,000,000.  These fines can be imposed for each day the offence was committed.  Furthermore, an individual or corporation can be fined an amount equal to the financial benefit that was acquired while the business continued to operate contrary to the issued order.

Premier Ford emphasized how serious this health crisis is by stating:

We are facing a critical moment in the fight against COVID-19 and we must do everything in our power to keep everyone safe and healthy and prevent our health care system from being overwhelmed.  Everyone must do their part to stop the spread and flatten the curve.  If you are not an essential business, you need to close your doors, work from home if possible and play a role to help contain the outbreak.  This is a matter of life and death.

DRUG DEALER FINED FOR OPERATING A NON-ESSENTIAL BUSINESS

On March 27, 2020, investigators observed a man driving a black Jeep Grand Cherokee and making several stops to conduct drug transactions in the area of Main Street West and Norfolk Street South in Hamilton. 

Police found cocaine divided in small plastic bags valued at $3,400 and almost $6,000 in cash.  In addition to criminal charges of possession of drugs for the purpose of trafficking and possession of proceeds of crime, the 29-year-old accused was also issued a provincial offence ticket for operating a non-essential business under the Emergency Management and Civil Protection Act.

This incident follows another case that also occurred in Hamilton. On March 19, 2020, Hamilton police attended Shisha Kaif Café, a hookah lounge, after complaints were made that business was operating as usual.  Police found that the lounge was operating in violation of the emergency shutdown order.  The owner was issued a summons to appear in court and was given a $750 fine.

STAY OFF ALL PLAYGROUNDS

Emergency measures in place throughout Ontario include the closure of all outdoor recreational facilities, including playgrounds, skate parks, off-leash parks, sports fields and tennis courts.  Most of these outdoor public areas have signs posted and caution tape around them, where possible, to keep individuals away from these closed off areas.

The Ontario government also took action to protect Ontarians by placing a limit on social gatherings to no more than five people, effective immediately.  This order does not apply to private households with five people or more, those operating child care centres for frontline health care workers and first responders, or funerals which may proceed with up to ten people. 

As of March 27, 2020, police officers and municipal bylaw officers can issue a ticket for non-compliance with an official order.  The fine for disobeying the rules start at $750 per occurrence, per person.  You can also be charged multiple days in a row.

In a statement by Matt Gaskell, Whitby chief administrative officer:

We are continuing to see residents who are ignoring the need for physical distancing and using our playgrounds, sports fields and outdoor amenities.  Our message to residents is clear:  these amenities are closed and anyone using them is not only putting their health at risk but the lives of others in our community.  Our bylaw officers are working closely with the Durham Regional Police Service to fine those who are not getting this important message.

Durham police have reported that they have received more than 200 complaints from citizens in relation to the Emergency Management and Civil Protection Act.  The complaints were originally regarding non-essential business that were not closed, but they are now receiving more complaints regarding social gathering, especially as the weather warms up.  Those that want to report someone or groups using outdoor recreation areas can contact the Durham Regional Police at www.drps.ca or call the DRPS Intelligence Branch Hotline at 1-888-579-1529, extension 5802.

As our government continues to respond to COVID-19, we will continue to provide updates on these developments in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, it is recommended that you contact an experienced criminal defence lawyer.  The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences.  Contact our office today online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Ontario Courts Consider COVID-19 on Bail Review

Written on Behalf of Affleck & Barrison LLP

The subject of the COVID-19 virus has made its way into Ontario’s criminal courts and has been considered a “material change” in circumstances in a recent decision by the Ontario Superior Court of Justice.

In considering bail review applications in the cases of R. v. J.S and R v. Nelson, the Judges both acknowledged that the practice of social distancing and self-isolation is limited in Ontario’s prisons.

J v. J.S.

A suspected drug dealer, identified as J.S., requested a bail review by teleconference.  The defence argued that the Justice of Peace erred and that there were material changes in circumstances to allow for a house arrest surety bail.  A surety is someone who agrees to supervise an accused person while he/she is released into the community, or in this case on house arrest, as he/she awaits a court date to resolve a criminal matter.

In Canada, bail decisions are made following the consideration of the following three sets of factors:

  1. Whether detention is needed to ensure an accused will attend court;
  2. To protect the public safety;
  3. The strength of the Crown’s case and the consideration of other circumstances surrounding a case.

In the case of J.S., Justice Copeland acknowledged that there were two material changes in circumstances, which included new proposed sureties and the fact that COVID-19 had developed in Canada.

According to Justice Copeland:

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

[B]ased on current events around the world, and in this province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home.  The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects.  The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells.  … If more people are infected, those resources will be more strained.

Justice Copeland granted Mr. S’s bail review application and ordered the following terms:

  • $15,000 surety recognizance;
  • to reside with his surety K.S.;
  • to remain in his residence at all times, except in the continuous presence of a surety or for a medical emergency of himself or an immediate family member;
  • to have no contact whatsoever with J.C.; and
  • to not possess any unlawful drugs, except with a valid prescription.

R v. NELSON

In another recent case in the Ontario Superior Court of Justice, Justice M. L. Edwards was asked to consider whether to release on bail 27-year-old Nathaniel Nelson (“Nelson”), who was suspected of robbing a jewelry store while armed.

Nelson’s lawyer argued that his client should not face “the heightened risk of contracting the virus – a risk that is heightened because of the conditions that exist in a prison environment”.  However, his lawyer also “conceded that but for the virus, he fully recognized that the new plan of release was not one that had much, if any, chance of success”.

Justice Edwards ruled that those seeking bail on the grounds of COVID-19 must present “at least some rudimentary evidence” that they are more susceptible to the virus due to underlying health issues.  He stated:

An incarcerated person who is advancing in age and who has underlying health issues will almost, without doubt, be at a greater health risk of contracting the virus, with possible serious ramifications.

The heightened risk facing those in jail due to the unlikelihood of practicing social distancing while in a jail cell with double or triple bunking was a factor considered by Justice Edwards on this bail review.  Nelson’s youth, lack of pre-existing physical or mental health conditions, his prior criminal record and the fact that his charges were serious were also factors considered by the court. 

Justice Edwards dismissed the bail application and concluded:

I do not take lightly my decision to dismiss Mr. Nelson’s application.  Mr. Nelson previously did not meet his onus on the secondary and tertiary grounds for release. … I am not satisfied that there would be confidence in the administration of justice if Mr. Nelson was released from jail.

We will continue to follow any developments in the law with respect to the impact of COVID-19 and will provides updates in this blog

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Inmate in Ontario Tests Positive for COVID-19

Written on Behalf of Affleck & Barrison LLP

Prisons are excellent sources for community transmission of illness.  There is little opportunity for social distancing, which is being recommended throughout the world by all medical professionals and government officials, to avoid the spread of the potentially deadly COVID-19 virus. 

Inmates are often placed in cells with another inmate and correctional officers and other staff at the institutions experience close contact with prisoners, especially during searches and admissions.  Due to these circumstances, Correctional Service of Canada (CSC) has taken measures to prevent an outbreak within their institutions.

Just yesterday, we learned that an inmate at the Toronto South Detention Centre is the first in Ontario to test positive for COVID-19. The inmate was immediately placed in isolation and a spokesperson for the Ministry of the Solicitor General has confirmed that steps have been taken to protect staff and other inmates at the facility.

MEASURES IN PLACE TO PROTECT CORRECTIONAL INSTITUTIONS

Martine Rondeau, spokesperson for CSC, ensures that protocols are in place to prevent COVID-19, including increased sanitization and cleaning regimens and providing increased Personal Protective Equipment (PPE) for staff, from spreading through the country’s jails.

Another measure in place is the suspension of visits to all Canadian inmates.  CSC has advised that it will not charge prisoners for phone calls and will make efforts to increase visits through video conferencing.  However, inmates continue to meet with legal counsel and continue to be transfered between courts and institutions.

In Ontario it was announced that effective March 13, 2020, in an effort to reduce the potential spread of the virus, intermittent inmates (those who are deemed low-risk by the courts and live and work in the community between Monday and Friday) who serve time on the weekends will be required to attend their reporting facility at which time they will given a temporary absence from custody and permitted to return home.  This change has been extended to allow the issuance of temporary absences beyond the 72-hour maximum and does not require reporting to a correctional facility every weekend.

Inmates with temporary absences who are near the end of their sentence will be carefully assessed to ensure they are at a low risk to reoffend and will be considered for early release.

Another change enacted in Ontario is the provision of alternate options for hearings of the Ontario Parole Board by electronic or written methods. 

According to Ontario’s Ministry of Community Safety and Correctional Services spokesperson Brent Ross:

No inmate has tested positive for COVID-19 in any of our correctional institutions.

Staff are advised to monitor their own health, and report to management any changes to their health status.  There are also processes in place to address environment cleaning.  Our correctional facilities are inspected and thoroughly cleaned daily and/or as required.  Proper hand washing and cough/sneezing etiquette has also been communicated to staff and inmates.

CORRECTIONAL OFFICER CONTRACTED THE VIRUS

A correctional officer at the Toronto South Detention Centre in Etobicoke has tested positive for COVID-19.  He recently returned from Europe and went back to work before the 14-day isolation guidelines were enacted and is currently being treated in hospital.  His last shift was on March 11, at which point he was working in the video courtroom and had escorting and overseeing inmates who were making court appearances via video conferencing.

A number of correctional officers who were in contact with the infected officer have recently been placed in self-isolation.  Some inmates are also in self-isolation in the centre’s infirmary.  It is unclear at this time how many inmates may have been in contact with the infected officer.

Kristy Denette, a spokesperson for the Ministry of the Solicitor General, stated:

Out of respect for the officer’s health privacy we will not be commenting directly on the officer’s health nor are we in a position to confirm any health related matters.  The ministry has been in contact with the local public health unit in response to COVID-19 to ensure the continued health and wellbeing of our staff and those in our custody.

In a similar situation, a contractor who had worked at the South West Detention Centre near Windsor on March 12 and 13 has also been confirmed to have COVID-19.  After showing symptoms, he was ordered into self-isolation on March 14 and positive test results confirmed that he had the virus on March 18.  Although he did not have any direct interaction with the inmates, he may have interacted with staff in the detention centre. 

ADVOCATES CALL FOR THE RELEASE OF VULNERABLE WOMEN FROM PRISON

The Canadian Association of Elizabeth Fry Societies, an association that works on issues affecting women and girls in the justice system, is advocating for the release of vulnerable women from the prison system during the pandemic.

The organization is asking the Correctional Service of Canada to release women who are eligible for parole, women who are over 50 years of age, women with chronic health conditions, Indigenous women and those that are in the mother-child program. 

Executive Director Emilie Coyle stated:

The challenge is, when you have people who are living in very close quarters and who cannot escape and socially isolate themselves the concern for us is that something like the COVID-19 virus will spread very quickly.  For women, whose health is already compromised in many ways, it could be potentially very deadly for them.

According to Coyle, the majority of women in prison are there in regards to poverty-related crimes and those that are violent offenders have often acted in self-defence. 

Furthermore, the ban on visitors for those that are incarcerated makes the conditions even worse for them and isolates them from their family, friends and supporters. 

We will continue to follow the government’s response to the pandemic and how it will effect the Canadian justice system and will provide updates in this blog.

If you have been charged with a criminal offence or have any questions regarding your legal rights, it is recommended that you contact an experienced criminal defence lawyer.  The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences.  Contact our office today online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.