COVID-19

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.