How to sentence during pandemic | Laurelly Dale
Wednesday, April 22, 2020 @ 1:14 PM | By Laurelly Dale
To sentence someone now to custody is to sentence them — at best — to possibly becoming ill from the virus or — worst — their death.
Inmates will eventually be released from custody into the community, likely carrying the virus with them. Releasing as many from custody now will minimize the risk of inmate and therefore community infection.
Since March 16, most courts have limited themselves to blanket adjournments, bail and in-custody sentencing. Currently there are more than a dozen COVID-19 bail decisions. Along with regular s. 718 Criminal Code submissions, the virus has quickly become the newest addition to the principles of sentencing.
This pandemic may be the hard reboot and upgrade that the court system will get — whether it wanted it or not. In the COVID-19 fight courts have sent a message: we must prioritize. There’s no room for superfluous arguments and rivalries.
The issue of how to handle the prison population is complex. Even if we were to take the health of the inmate out of the equation it leaves a massive concern for the health of the community. Many will be released from custody during this pandemic. If John Doe is arrested this week for property crimes, has a terrible record and is sentenced the following week to a quick 30 days, he will be released in roughly 20.
In that time there’s a good chance that he will be infected. Prisoners are not given hotel vouchers or a residence once released. They will spread it to others in the community, including the remote northern First Nations. The jail cannot keep them in custody simply because they’ve contracted the virus.
What can we do to reduce community infection? Get as many out of custody now. Thankfully, since the courts have been closed, we’ve created a makeshift template for how to do this.
If you haven’t already done so, the first step is to pull all in-custody files.
Step two: use one or more of the following tools.
Defence can and must work together with the Crown attorneys. Ask them to revaluate their screening positions. No one will give you anything if you don’t ask. Make it easy for them: draft proposed resolutions, summaries of the case along with custody calculations.
My experience with this has been positive thus far. In the first week and a half I managed to resolve six in-custody matters. Each Crown I’ve dealt with has provided a COVID-19 sentencing position. There is a sense of unity on this front. Obviously, it is ideal if you can obtain a joint submission.
If you cannot and must proceed with an open sentencing, the following will boost your chances of a time served disposition:
1: Implore the judge to consider COVID-19 as grounds to grant enhanced 2:1 pretrial custody credit. Some criminal defence organizations have provided affidavit evidence from epidemiologists that can be used at a hearing. Rely on R. v. Kandhai 2020 ONSC 1611, to support a 2:1 enhanced credit argument. In it, the judge categorized COVID-19 as a “significant factor” on sentencing. Here, the accused was granted enhanced credit and released on a time served disposition. As a reminder — there is still a requirement to submit additional evidence of hardships suffered while in custody — such as an assault or four or five per cell.
2: Argue exceptional circumstances: Submit that the pandemic warrants a lower sentence, one that normally wouldn’t be granted but should be considered. Rely on R. v. McConnell 2020 ONCJ 177. Here, the Crown refused to reduce their original pre-COVID screening position. The accused pleaded guilty to several property offences and had a lengthy record. The judge granted the defence request to credit him with time served at eight months. In their submissions, defence acknowledged that normally a lengthier period would be warranted.
A note of caution. COVID-19 can only go so far. Consider the case of R v. Laurin  O.J. No. 1266. Counsel made a Hail Mary pitch for time served in a sentencing for drive dangerous causing death. Didn’t pan out as hoped; however, Justice Kimberley Crosbie did state that had the sentence only been a few more months there would be “little hesitation” in reducing it to time served. Keep your submissions within the realm of possibility.
COVID-19 was also used to tip the scales in favour of a conditional sentence order (CSO) in the case of a Saskatchewan couple who pleaded guilty to failing to provide the necessities of life. The facts were brutal: two young children suffering from misshapen heads with permanent deformities and burn marks. The guilty pleas were entered Jan. 21. Since then the sentencing landscape has changed. The CSO here allowed the argument to be made that the fundamental principals of sentencing found in s. 718 of the Code can be met while considering the pandemic.
My hope is that once this is all over, we do not return to the judicial system we left. Instead, we are faced with a new administration of justice that re-evaluates our need to imprison.
Laurelly Dale is a criminal defence lawyer with Dale Law. Contact her at firstname.lastname@example.org.
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