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Ontario Court of Appeal rejects application for COVID-19 bail from inmate with diabetes

Thursday, July 16, 2020 @ 9:46 AM | By John Schofield

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The Ontario Court of Appeal has demonstrated how far it is willing to go to relax bail rules to reduce prison populations during the COVID-19 pandemic.

In a unanimous July 6 decision in R. v. Stone 2020 ONCA 448, the Court of Appeal rejected an application by convicted drug trafficker and sexual offender John Paul Stone for release from the federal medium security Bath Institution, just west of Kingston, Ont., pending an appeal of his six-year sentence.

In a July 3 hearing via videoconferencing, Toronto lawyer Margaret Osadet, acting as counsel for Stone, argued that he should be released because his incarceration is causing high sugar levels and his diabetic condition makes him more vulnerable to COVID-19, should he contract it.

Osadet and Crown attorney Lisa Fineberg did not respond to requests for an interview.

In an effort to advance the application, Osadet submitted an affidavit from Dr. Aaron Orkin, an epidemiologist, outlining the elevated risks for the spread of COVID-19 in congregate facilities such as jails. The document also provided data on the higher prevalence of COVID-19 in Ontario correctional institutes and argued that it is best to “depopulate and decongregate” such facilities in the interests of public health — especially considering the risk of a second wave of the virus.

According to the Appeal Court decision, Osadet also advanced that the sentencing judge did not adequately account for Stone’s own history as a victim of “horrific” sexual abuse.

But “in this individual case,” supernumerary Justice Russell G. Juriansz wrote as motion judge, “the applicant has not satisfied me that his detention is not necessary in the public interest.”

The decision concluded that Stone did not satisfy the threefold test for release pending a sentencing appeal set out in section 679(4) of the Criminal Code. First, it noted, he failed to convince the court that his appeal had sufficient merit and his detention in jail would cause unnecessary hardship. He also fell short in showing his detention is not necessary in the public interest, and that he would surrender himself into custody in accordance with the terms of the order.

Stone “has previously breached recognizances,” the decision noted, “breaches that involved the use of drugs, access to a computer and the Internet and child pornography.

“The acts for which he has been sentenced,” it added, “are serious crimes against children.”

While conceding that minimizing the spread of COVID-19 is in the public interest — citing cases such as R. v. Omitiran 2020 ONCA 261 and R. v. Jesso 2020 ONCA 280 — Justice Juriansz noted that no inmate has yet tested positive at the Bath Institution and that it was unlikely that Stone’s appeal would cause him to spend more time in jail than the ultimate length of his sentence.

The safety of federal inmates is the responsibility of Corrections Canada, he noted, and a court can only examine the specific case before it.

In debunking the applicant’s claim that his incarceration was causing his high sugar levels, Justice Juriansz also cited evidence adduced by the Crown that Stone was buying pop, cookies, swiss rolls and Fudgee-O Cookies at the prison canteen.

Cate Martell, criminal defence lawyer

Toronto criminal defence lawyer Cate Martell called that aspect of the decision “troubling.”

“It’s notoriously difficult to manage chronic conditions in jail,” she told The Lawyer’s Daily, “and it’s important sometimes for people who have diabetes to eat something that has sugar in it.

“I think it’s important to recognize the limits of the court’s expertise and not to ask judges essentially to diagnose or to determine who’s managing their chronic conditions well and who isn’t,” she added. “Let’s leave that to expert evidence.”

While some provinces and territories have reduced their prison populations by up to 35 per cent during the pandemic, the Stone decision underlines “there are limits to that,” said Martell. “The ordinary principles and rules that apply to bail applications still apply and they haven’t been displaced.”

For bail pending an appeal, she noted, the onus is on applicants to convince the court that they’re not a flight risk; they’re not a risk to public safety; that potential risks could be controlled by appropriate conditions; and that their release would not undermine public confidence in the administration of justice.

Omar Ha-Redeye, executive director of the Durham Community Legal Clinic

Both the public safety factor and the public confidence factor weighed against Stone, despite his diabetes, said Omar Ha-Redeye, executive director of the Durham Community Legal Clinic in Oshawa, Ont.

“We need to have a multi-factoral approach, and that’s what the courts are doing,” he told The Lawyer’s Daily. “In cases like this, it is very much justified to deny judicial interim release. In another situation where it’s some sort of minor assault or shoplifting, more minor type crimes, a judicial interim release just simply makes sense because we don’t need to keep these people locked up.”

Ha-Redeye said the diabetes element made the case a little more unusual, but he also took issue with the Crown introducing evidence of Stone’s dietary habits.

“I think it’s a little bit of a stretch to say simply because somebody is buying these types of snacks that they’re not taking their medical situation seriously,” he said. “That doesn’t reflect the nature of the medical condition we’re looking at here.”

At the same time, he noted, co-morbidities like diabetes do not necessarily increase one’s risk of contracting COVID-19. “What diabetes does is, if you contract COVID-19, you are likely to have much more significant complications. There’s a very significant distinction there.”

While COVID-19 remains poorly understood, he added, research indicates that, at the very least, it exacerbates diabetes.

“It is a serious concern,” said Ha-Redeye, “and one that our prisons will have to deal with, especially if there is a second wave — likely through administrative segregation.”

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