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While the Ontario Court of Justice and the Superior Court of Justice are being forced to adjust to the coronavirus pandemic by embracing the widespread use of telephone conference calls, video appearances and virtually courtrooms where all the participants are appearing remotely. The courts are also continuously considering how the COVID-19 precautions are impacting on an accused person’s Charter rights and their general welfare. Below are a few brief summaries of Ontario court decisions on COVID-19 Bail Hearing decisions and related considerations:
Bail Hearings:
The Justice of the Peace at the bail hearing in the R. v. Cotterell, [2020] O.J. No. 1433 matter on March 26, 2020, cited the coronavirus pandemic has having consideration on the tertiary grounds in two distinct ways. First, there is an elevated risk for those in detention centres. They are living in close proximity to each and it’s difficult to maintain high hygiene standards under these conditions. It is difficult to self-isolate or maintain social distancing with inmates. That containing an outburst in jail will divert public resources from the public to the inmates in detention centres. In short, it will take doctors, nurse, equipment and other frontline workers out of hospitals and send them into jails. The second issue that was considered in this COVID-19 bail hearing was how there is already a backlog forming in courts because of the pause in daily court operations. That the backlog will cause delays in setting matters for trial and the future scheduling of trials – see considerations starting on page 16.
Bail Reviews:
In R. v. T.K., [2020] O.J. no. 1339, the Judge found that the COVID-19 pandemic a was a valid consideration on a bail review. On the secondary ground analysis at paragraph 60 “that the jeopardy and risk posed to inmates from COVID-19 while incarcerated in detention centres awaiting trials (that are currently suspended) is also a valid factor when considering the secondary ground for detention; in particular for non-violent offenders on a bail review”.
The Judge goes further at paragraph 71 and summarizes from a World Health Organization report that states people deprived of their liberty, such as those in prisons and detention centres, are more vulnerable to a coronavirus outbreak than the general population because of the confines conditions in which they live.
At the bail review in R. v. J.S., [2020] O.J. no. 1206, the Judge found that in addition to the new sureties and supervision plan that the coronavirus pandemic was a distinct second change in the material circumstances. That the tertiary grounds requires a court to consider all of the circumstances, including the COVID-19 pandemic (see paragraphs 15-20).
In R. v. Cahill, [2020] O.J. No. 1692, the accused detained on the primary and secondary grounds after a bail hearing for the reason that the proposed release plan was insufficient. The accused has several medical conditions that would make her particularly vulnerable to the coronavirus. She suffers from HIV and lung disease and has a drug addiction. The court decided that this was enough evidence to establish that she was at risk of contracting COVID-19 while in custody. The court agreed with other decisions that the threat posed by COVID-19 is relevant to secondary ground concerns.
In R. v. C.J., 2020 ONSC 1933, the accused had been detained in relation to eleven offences including trafficking cocaine and firearms charges under sections 91(1), 92(1), 95(a) and 88(2) of the Criminal Code. The court, at para. 9, rejected the Crown submission that evidence was required to show that while in custody C.J. was more at risk of contracting COVID-19 than if out of custody. When examining the tertiary grounds, at para. 8, the court concluded it did not believe that a reasonably informed member of the public would lose confidence in the criminal justice system if they learned that a young adult, who is presumed innocent, is released from jail on a very stringent bail plan with an electronic ankle monitor, two residential sureties in the midst of a global pandemic.
In the bail review matter of R. v. T.L., [2020] O.J. No. 1371, the Judge cited the COVID-10 pandemic as a consideration on the tertiary grounds starting at paragraph 34. The same reason as was cited in R. v. Cotterell that there will be a scheduling backlog because trial and court operations have been suspended and all matters will be delayed in getting to trial. Further, the elevated risk to inmates and the resources that will be required to contain the pandemic in jails and the demand for scarce medical resources that will be required.
Sentencing Matter:
Justice Harris in the sentencing matter of R. v. Kandhai, [2020] O.J. No. 1254, considered the unprecedented event of the COVID-19 pandemic a reason to bring the matter forward two weeks in order to release the accused to a time-served sentence. He noted that the hardship in serving a jail sentence has always been a proper consideration when crafting appropriate sentences and did not need to hear specific evidence of how the pandemic affected the accused in jail. He noted the general risk to the welfare of all inmates given the condition in which they must live awaiting trial.