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Quarantine Act’s jail provisions should not be focus of attention | Kyla Lee

Monday, March 30, 2020 @ 12:10 PM | By Kyla Lee

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Kyla Lee
When the federal government announced that it was invoking the provisions of the Quarantine Act to require returning Canadian travellers to self-isolate for 14 days, many people were concerned about the potential implications of a charge and conviction under the Act. After all, the Act provides for fines and imprisonment of up to three years in some circumstances.

There are, of course, legitimate concerns associated with putting people in jail who have just returned from travel and may have been exposed to the COVID-19 virus. And certainly, jailing people and increasing the sheer number of people in jail during a pandemic is not ideal, particularly when social distancing measures already untenable in jail in many circumstances.

However, to breathlessly suggest that this will increase the risk to those who are charged under the Quarantine Act and those already in custody neglects a few basic elements of our justice system.

First, the jail sentences under the Quarantine Act are only imposed on conviction, not automatically. There is no mandatory “Go directly to jail” provision in the Act, and were it so the likelihood of that being struck down on constitutional challenge is high. People prosecuted under this legislation still have all the same rights they would have facing any other charge for an offence.

In fact, the Act itself appears to contemplate a host of legal rights associated with orders to self-isolate or powers to search. Warrants are required, and the Act sets out a mechanism by which they must be obtained, to conduct certain types of searches. Any order made under the Act can be challenged and reviewed in court. But let’s be honest: we all agree with self-isolation. Those that are not complying are not about to challenge this order. At least, not successfully.

But the rights of people who are charged under the Act do not cease within the four corners of the statute. All the ordinary legal rights that apply under the Charter of Rights and Freedoms still continue to apply in a prosecution under the Quarantine Act. This includes the right to reasonable bail and the presumption of innocence.

The likelihood of a non-violent offender, who may be infected with COVID-19, and who does not have any criminal record not being granted bail is slim. In fact, most first-time offenders facing charges under obscure pieces of legislation are not typically held without bail.

And sure, there are concerns where people with existing criminal records do not comply and face the prospect of not being granted bail. But I do not believe that there is even a remotely reasonable possibility that bail will not be granted. Even for those with prior records, courts in Canada are recognizing the COVID-19 pandemic as a circumstance that must be taken into consideration at a bail hearing. Bearing that in mind, detention in these circumstances given the risk is not likely.

Remember that the Supreme Court of Canada in R. v. Antic [2017] 1 S.C.R. 509 clarified that bail cannot be denied without just cause, related to the actual risk of releasing a person on bail. Further, the Supreme Court of Canada confirmed that bail orders have to be reasonable. Reasonable bail can be crafted with orders that require a person to stay home, to be subject to electronic monitoring, and telephone reporting to ensure compliance. All of this can protect the public while maintaining a reduced risk of exposure.

But perhaps more importantly, there is simply no way that a person is going to be sentenced while the pandemic is in full force for violating the Quarantine Act. A trial of such a matter would have to be determined to be urgent enough to proceed as courts across Canada are dealing with urgent matters only. A trial for this, in ordinary circumstances, would take at minimum a few weeks to be heard. In these circumstances, longer than a few weeks.

Remember that this is a rarely used piece of legislation. Understanding the implications of it, the defences and any potential constitutional challenges will take time and thorough research. Disclosure of evidence, review of that, obtaining instructions from clients, all that will also take time. Realistically, the trial would not be able to proceed during the pandemic.

So at best, the people charged under the Quarantine Act are going to face jail sentences when the risk to both the jail population and the person of contracting COVID-19 is much lower.

A quick search online reveals no cases in which the sentencing provisions, or the offence provisions have been applied in this legislation. The only reference to the Quarantine Act’s offence provisions is in a McGill Law Journal article that comments on the toothlessness of the Act. Given that there are no sentencing cases relating to this legislation, it is reasonable to expect that the punishment meted out in court after a trial and conviction would be one that only occurred after extensive argument about sentencing principles.

And, given that the Criminal Code requires sentencing judges to consider all reasonable alternatives short of incarceration, the reality is that many judges would not impose a custodial sentence on conviction if there was a risk that the offender would transmit the virus, or would get the virus.

Remember that s. 12 of the Charter guarantees the right to be secure against cruel and unusual punishment. If there was an enhanced risk of transmission to other inmates, or of catching the virus, the offender would have a viable constitutional argument against the imposition of a jail sentence.

Now, if the sentencing takes place after the pandemic is over, the deterrent value of imposing a jail sentence is lost. After all, this Act is invoked rarely by government for a reason. These are unprecedented times.

Furthermore, if things go as predicted, the fine may in fact be a greater deterrent than a potential jail sentence. Economists are predicting a recession, or even a depression. It is no secret that millions of Canadians are out of work and struggling financially. A high fine would arguably have more of an impact on general deterrence than a short, sharp jail sentence could.

I do not wish to see anyone go to jail. But I also believe that the bigger concerns related to the general population in jails in the midst of this pandemic can be watered down by blowing what would almost certainly not happen under the Quarantine Act out of proportion.

Kyla Lee is a criminal lawyer and partner at Acumen Law Corporation in Vancouver. Her practice focuses on impaired driving. She is the host of a podcast, Driving Law, and a weekly video series Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! She is called to the bar in Yukon and British Columbia. Follow her at @IRPLawyer.

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