Detention in a Pandemic - Sarah Sharp

In this essay, I will be discussing how COVID-19 has affected jails and prisons in Canada, especially in relation to bail and sentencing. Prisoners are often a forgotten population in society, but, during a pandemic, prisoners become a very vulnerable population. Outbreaks in jails and prisons have significantly contributed to the rising number of people who have contracted COVID-19. I will start this essay by discussing the conditions and increased risks presented by pre-trial detention. Next, I will explain tertiary grounds and how they relate to bail during a pandemic. After this, I will pivot my attention to prisons, where I will discuss the ways in which prisons are impacted by COVID-19. Finally, I examine how the additional risks presented by COVID-19 affect sentencing.

Dangerous detention centres

In R v Fraser [“Fraser”], Mr. Fraser described the conditions of the detention center he was staying in. He mentioned that he was sleeping in close quarters with 10 to 12 people, which made social isolation and physical distancing nearly impossible. It was also not possible to engage in frequent handwashing, which helps prevent the spread of COVID-19. Detention centers have made attempts to adopt measures which prevent the spread of the virus, but these measures often lead to worse conditions for the detainees. Detainees had complained that they are receiving less food and that the food is of worse quality than before. Many shared spaces cannot be used, including showers and outdoor spaces.

These conditions affect the mental and physical health of detainees. This is compounded by the fact that, in general, inmates are already more vulnerable to communicable diseases and generally have poorer overall health. Due to these poor conditions in detention centers, people may end up pleading guilty in order to avoid these conditions and potentially risk their lives. The decision of R v Rajan [“Rajan”] even described detention centers as “one of the most dangerous places imaginable” during a pandemic. These facts make it clear that the justice system should try to avoid pre-trial detention where possible. During the pandemic, pre-trial detention should be used as sparingly as possible. Subjecting defendants to these kinds of conditions where not absolutely necessary would decrease public confidence in the justice system, which must be avoided.

Tertiary grounds

Section 515(10) of the Criminal Code [“the Code”] establishes three grounds to justify pre-trial detention:

• to ensure attendance, also known as the primary ground;

• to protect public safety, also known as the secondary ground; and

• to maintain public confidence, also known as the tertiary ground.

In the case of R v JS [“JS”], the Ontario Superior Court of Justice [“the ONSC”] decided that the increased risk for detainees associated with COVID-19 is a factor that should be considered under the tertiary ground. There is a greatly increased risk of contracting COVID-19 if people are confined to a space, as they are in a jail. Practicing proper social distancing in a jail is very difficult, if not impossible. This means that the more people that are detained in pre-trial detention, the more people who will be infected with COVID-19, which will result in a greater strain on the healthcare system in Canada. In JS, the ONCA factored the risks of COVID-19 in under tertiary grounds and, as a result, the accused in that case was granted bail.

Tertiary grounds were also considered in Fraser, which affirmed the decision in JS, agreeing that COVID-19 is a novel factor that needs to be considered when putting someone in pre-trial detention. Fraser also added that, while COVID-19 is a factor, it is not a determinative factor. According to Fraser, courts should still be sure to consider protection of the public. Although COVID-19 was considered in Fraser, it was ultimately decided in that case that other factors had more weight and, accordingly, the accused was detained.

The dangers of prisons

Prisons are similarly considered to be dangerous places to be in during a pandemic. As stated in the ONSC’s decision of R v Hearn [“Hearn”], it is hard to maintain social distancing measures in custodial settings, such as prisons. Prisons often have many shared and poorly ventilated spaces This means that inmates are at a greater risk of contracting COVID-19. Also, there is an increased risk of COVID-19 spreading to the community, because people such as staff are travelling in and out of the facility. Inmates also frequently experience overcrowding in prison and have a lack of access to proper medical care. When discussing the proportionately of a punishment to the crime that was committed, length of sentence is most often discussed. However, length of sentence is not the only consideration in proportionality; the courts should also consider how harsh the punishment is, especially in regards to prison conditions. Since COVID-19 presents additional risks in prisons, this should be considered by judges when sentencing.

Sentencing during a pandemic

In Hearn, the ONSC discussed the impact of the additional risks of COVID-19 on sentencing. Pomerance J, writing for the ONSC, accepted that the risk of contracting COVID-19 as well as the psychological effects on the inmate increased the punishment. Where a sentence would have a “more significant effect on the offender”, the ONSC found that it should be considered in the sentencing equation. Pomerance J therefore ruled that COVID-19 should be an important consideration in sentencing. The ONSC also noted that the pandemic should not act as a “get out of jail free card” for offenders, but, in order for a sentence to be proportional and fair, it should be considered. Despite this decision, COVID-19 hasn’t had a very significant impact on sentencing so far. While it has been considered in some cases, such as in R v MacDougall, in such cases it has been treated generally. Without any evidence specific to the offender that increases a risk to the offender’s health, COVID-19 has not drastically impacted sentencing.

COVID-19 as a mitigating factor

COVID-19 has a serious and often overlooked impact on detention centers in Canada. Detainees and inmates live in frequently crowded spaces and are subject to a significant risk of COVID-19 against their will, as well as additional restrictions on their freedom. The Canadian justice system should take these additional risks into consideration in order to mitigate the impact of COVID-19 on Canadians. This may involve reduced sentencing or being less inclined to put someone in pre-trial detention.