social distancing

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.