Avoiding jail in the time of COVID-19: Sask. defence lawyer says options dwindle once behind bars

A Saskatoon defence lawyer says there are a limited number of options to get a prisoner released once they're behind bars.

System now has steps to keep people from going to jail

There is no fast and easy way to get people out of jail once they've been remanded. (Dan Zakreski/CBC)

It may sound obvious, but if you're arrested in Saskatchewan the easiest way to not spend time in jail is to not be sent there in the first place.

The province's justice and corrections systems have a handful of checkpoints where someone charged with a crime may be released before going to a correctional centre.

But once a person is remanded by consent, or after an unsuccessful bail hearing, the options for release dwindle dramatically.

The primary tool for getting out at this point is a detention review.

"Every time a client of mine is remanded, I've been running their detention reviews after 90 days," said Saskatoon defence lawyer Aleida Oberholzer.

"The Supreme Court basically said it's mandatory that you take a look after 90 days whether or not this person should still be in custody, but especially now with what's going on at Saskatoon Correctional, people really want to want to get out of there and they really do want to run their detention reviews."

These reviews take place at Court of Queen's Bench.

Aleida Oberholzer is a defence lawyer in Saskatoon. (Submitted by Aleida Oberholzer)

Oberholzer said there are several points after an arrest but before remand when a person may be released, thus keeping them out of jail at least until their trial:

  • Immediately after their arrest, police have the discretion to release a person with a promise to appear in court.
  • Failing that, the person may appear off-hours (weekends or evenings) before a Justice of the Peace and be released.
  • A person held until their first appearance may be released by a provincial court judge that same morning.
  • A person not released after that appearance may then have a bail hearing, at which point they could be released.
Frank Impey is a prosecutor in Saskatoon. (CBC)

Two other programs also come into play that — if they don't lead to release — at least speed up the process.

The Sunday Project and the Rapid Response to Remand (RRR) both aim to reduce the amount of time a person must wait to find out what's happening.

For example, on Wednesday there were eight new arrests on the 9 a.m. docket at provincial court in Saskatoon.

Three of the accused were referred to the RRR program. One person was released in the morning. Four were remanded.

The Sunday Project intends to get people arrested on the weekend into court by Monday afternoon. The RRR applies the same principle to weekdays, said prosecutor Frank Impey.

"The idea of the (RRR) program is to pick those files where something more meaningful can happen on that very first appearance, therefore sentencing on the same day, show cause hearing on the same day, perhaps consent releases on the same day," he said.

"If defence, for instance, proposed a plan or presented a plan that meets public safety requirements, then that person can be released at two o'clock, whereas on the surface of the file at nine o'clock in the morning, this was not someone we were prepared to consent the release of."

Impey said that the impact of COVID-19 on the correctional centres and the community plays into — but doesn't define — what prosecutors are weighing.

Some people who may not have been released on a set of charges a year ago are now avoiding jail until their trial dates.

"You will see there will be less remands of individuals with property offences, less remands of individuals with offences against the administration of justice," Impey said.

"But always with a mind toward public safety."

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Dan Zakreski is a reporter for CBC Saskatoon.