Bail considerations, releases need to adapt to COVID-19 threat, lawyers say

Some criminal defence lawyers and advocates are calling for a wider directive to provincial and territorial Crown prosecutors on how to factor the risk posed by the COVID-19 pandemic into bail hearings. 

Judges have been factoring COVID-19 into their decisions — lawyers and advocates say that's not enough

Inmate Mike McIntosh is worried about COVID-19 getting behind the walls of the Ottawa-Carleton Detention Centre, pictured here. (Andrew Lee/CBC)

Mike McIntosh feels more confined than ever.

He's been been living behind bars in a minimum security dorm at the Ottawa-Carleton Detention Centre for the past eight months, facing a charge of possession for the purpose of trafficking. He hasn't been convicted.

McIntosh is still waiting for his bail plan. He said he's been accepted to a treatment centre but the service isn't taking new patients because of the COVID-19 pandemic.

"It's pretty hard right now for me in here," McIntosh said. "I don't have no family or anything. It's hard to contact the proper people to try to get out of here."

While McIntosh waits inside, work is being done on the outside to reduce the number of inmates in correctional institutions to control the spread of COVID-19 by, among other things, widening the range of accused individuals who can be granted bail.

But some criminal defence lawyers and advocates are calling for a broader directive to provincial and territorial Crown prosecutors on how to factor in COVID-19 during bail hearings.

They say the movement so far by provincial and territorial governments isn't keeping pace with the danger posed by the virus. 

'COVID-19 is not a free pass out of jail'

"We cannot conduct ourselves as business as usual," said Ines Gavran, a Toronto-based criminal defence lawyer.

"Crowns are ministers of justice and they should consider this virus as serious. And it is more serious when it comes to people in custody versus the general public."

Gavran said she wants to see Crown prosecutors factor into bail requests the specific pandemic risks faced by inmates in correctional facilities, who live in confined spaces, share bathrooms and are provided limited access to sanitary products in many cases.

Toronto-based criminal defence lawyer Ines Gavran says she wants to see Crowns take a more unified approach to COVID-19 during bail hearings. (Supplied/Ines Gavran)

The conditions faced by people in custody were acknowledged by a judge in a recent bail ruling involving one of Gavran's clients.

In granting Gavran's client bail, Ontario Superior Court Justice Jill Copeland said in a March 20 decision that detained inmates face a "greatly elevated risk" of contracting COVID-19 compared to those under house arrest.

"However, the public should know that COVID-19 is not a free pass out of jail," Gavran said. "It's a strong factor that favours release but it's not a guarantee … of release."

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Judges increasingly are weighing the threat of COVID-19 inside jails and prisons in their decisions on sentencing and bail, putting the emphasis on having a proper release plan in place.

In a March 27 Ontario Superior Court hearing, a judge agreed to a bail application and placed Cydney Israel's client under house arrest subjected to electronic monitoring, instead of continuing her time behind bars.

"This is a situation where the judge in this particular case acknowledged that there didn't have to be evidence of a personal vulnerability to the illness," Israel said, adding that provincial governments should issue sentencing and bail directives to Crowns on COVID-19.

"When we're all being told to social distance or socially isolate, the judge agreed he couldn't live in a bubble. The jails are not a place where prisoners can socially isolate from one another."

Israel said the justice system recognizes the need to control the flow of people in and out of jails and courthouses. She said courts essentially are only hearing cases on bail applications, and those involving guilty pleas or resolutions.

Err on the side of caution, senator says

At the federal level, Public Safety Minister Bill Blair has asked the heads of Canada's prison system to consider early releases for some federal offenders.

"We know the unique risks inherent to prisons," Mary-Liz Power, Blair's press secretary, said in an email statement to CBC News.

"The Correctional Service of Canada continues to take a number of preventative measures to restrict the spread of COVID-19 in federal institutions while maintaining inmates' connections with family, friends and support systems."

Discussions are ongoing and the Correctional Service and the Parole Board of Canada have made no decisions yet.

Senator Kim Pate listens to an inmate being held in segregation during a visit to Ontario's Millhaven Institution on May 16, 2017. (Senate of Canada)

Independent Sen. Kim Pate said now is not the time for half-measures. 

"We don't want to wait until it's too late and say we made mistakes," said Pate, a long-time advocate for incarcerated women.

"Let's in this case err on the side of caution, of getting as many people out in a way that's safe for everybody"

But the Union of Canadian Correctional Officers has warned that early releases could pose a risk to the public.

The union said the focus should instead be on maintaining safety inside the prisons by securing more personal protective gear and making sure testing kits are available at every federal institution.

Currently, 49 correctional workers have tested positive for COVID-19 in four federal institutions — three in Quebec and one in Ontario.

There were 35 infections among federal inmates as of April 7 — 17 in Quebec, 11 in B.C. and seven in Ontario — according to Correctional Service Canada.

Inmate population dropping as COVID-19 measures take effect

Provinces and territories are taking steps to deal with COVID-19 and reduce the population in their jails. 

While no one has appeared to issue directives to Crown prosecutors, there have been moves to create isolation wards and grant temporary leaves and early releases to some non-violent offenders nearing the ends of their sentences.

Nunavut recently released 23 inmates as a result of sentence reviews and bail review hearings. In Prince Edward Island, according to a provincial government spokesperson, 28 sentenced inmates and 25 offenders serving intermittent weekend sentences are on temporary absences as of April 7.

The provincial government in Newfoundland and Labrador said 32 offenders and 15 serving intermittent sentences have been on temporary absences since April 7. Most of the leaves were granted on humanitarian grounds and most of the offenders were within 15 to 30 days of their release dates.

The inmate population across all provincial jails in Ontario has dropped from 8,344 to 6,096, according to the the provincial government.

A spokesperson for the Ministry of Solicitor General said the population inside the Ottawa-Carleton Detention Centre has dropped from 514 to 326 inmates since mid-March due to COVID-19 prevention measures. (Andrew Lee/CBC)

At the Ottawa-Carleton Detention Centre, the population has gone from 514 to 326 inmates. No one there has tested positive for the virus.

But McIntosh — who said he recently recovered from pneumonia — is afraid the virus will get to him before he gets out.

"All it takes is one person here to get it and we're all in trouble," he said.

"Me with my lung problems, it's not a good situation."

About the Author

Olivia Stefanovich

Senior reporter

Olivia Stefanovich is a senior reporter for CBC's Parliamentary Bureau based in Ottawa. She previously worked in Toronto, Saskatchewan and northern Ontario. Connect with her on Twitter at @CBCOlivia. Story tips welcome: olivia.stefanovich@cbc.ca.

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