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COVID-19 considered ‘material change’ by Ontario court in bail review

Thursday, March 26, 2020 @ 9:30 AM | By Amanda Jerome

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A decision from the Ontario Superior Court of Justice has noted COVID-19, and the risk of spread in the province’s prisons, as a “material change” in circumstances when considering a bail review application.

In R. v. J.S. 2020 ONSC 1710, Justice Jill Copeland acknowledged the risk to inmates during the COVID-19 pandemic when granting bail to the applicant, J.S.

“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,” she wrote.

The judge made clear that she was not “suggesting any failure of the correctional authorities to take appropriate steps to attempt to keep inmates healthy, and to attempt to limit the spread of the virus.”

“But I take notice of the fact, based 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,” she added.

Justice Copeland noted that the Supreme Court of Canada’s decision in R. v. St-Cloud 2015 SCC 27 makes clear that the court “must consider whether in all of the circumstances detention is necessary to maintain confidence in the administration of justice: St.-Cloud at paras: 66-71.”

“I note than among a non-exhaustive list of possible factors that a court may consider as part of its assessment of all of the circumstances, Justice Wagner, as he then was, writing for the court, included the personal circumstances of the defendant, including his physical or mental condition,” she added.

According to court documents, although the Crown opposed release, it also acknowledged the “current risk situation posed by the coronavirus” as a material change in circumstances.

“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. I note that this factor concerns not only Mr. S.’s own health, but also the preservation of scarce hospital resources to treat patients. If more people are infected, those resources will be more strained,” Justice Copeland explained before granting bail in a decision released March 20.

According to court documents, the review was heard via teleconference. In her conclusion, Justice Copeland thanked “counsel for their professionalism and flexibility in the hearing of this matter.”

“I also thank the court staff for their assistance in these difficult circumstances,” she added.

Ines Gavran, criminal defence lawyer

Ines Gavran, a sole practitioner in Toronto and counsel for J.S., said the “biggest change here [lies] in the way we will advocate for our clients at their bail hearings from this point forward.”

“The public interest lies in protecting the vulnerable — especially now — which includes the accused who is presumed innocent under the Canadian law. That vulnerability is now heightened due to COVID-19, but vulnerability can also stem from physical or psychological health issues and deteriorating conditions of many detention centres,” she explained.

Gavran noted that Justice Copeland “rightfully said that tertiary grounds are not confined solely to factors set out in St-Cloud.”

“Where there is a real risk to the health of an innocent person who is detained, the public can handle some degree of risk that comes with having an accused released on bail, even where the criminal offence is considered to be a very serious one. This is clearer now than ever before. The criminal justice system has to keep this in mind going forward — and it is our professional duty to remind it,” she added.

Gavran said she would echo Justice Copeland’s words regarding the risk of COVID-19 spreading in the prisons and the lack of social distancing available when inmates share cells.

“However, I would further add that the conditions of the jails are very concerning and have been for a very long time,” she said.

“Inmates [and] staff cannot distance themselves, as is now required, and there are often two to three inmates bunking in a single cell. They are forced to share common areas such as bathrooms, dining areas and even telephones. In fact, in some detention centres the inmates are denied the use of telephones, so they are unable to get in touch with their families. They are denied the ability to follow the recommendations of the World Health Organization and Canada’s Chief Public Health Officer. This is an unacceptable denial of their fundamental human rights and the justice system must take this into account when deciding whether an accused person should be released on bail,” she stressed.

Gavran believes that judges will “absolutely” consider the impact of COVID-19 now that this decision has been released.

“There has been amazing and ongoing co-operation between criminal defence lawyers, Crown attorneys and judges all over the nation. This decision is a great example of how the justice system works when everyone involved is concerned with the fundamental rights afforded to every person in this country: the right to life, liberty and security,” she said.

Gavran noted that in Ontario, John Struthers, the president of the Criminal Lawyers’ Association, has been “working tirelessly with the courts to ensure that we can continue to represent and assist our clients who need us now more than ever.”

“The courts have been extremely prompt and progressive in having matters be heard remotely and in granting bail where the right conditions have been proposed. I also commend the Crown Attorney’s Office in Ontario for their willingness to consent to bails and their continuous concern with respect to the health of our clients,” she added.

The Ministry of the Attorney General did not respond to request for comment before press time.

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