PRE-SENTENCE CREDIT IN THE AGE OF COVID-19 - Bailey Silva

Over the past year, COVID-19 has ravaged every corner of the globe. All Canadians have had their lives upended by the pandemic, and have had to adapt to this “new normal” in which protective measures including drastic physical distancing measures, and the donning of personal protective equipment are now part of the common parlance of everyday life. Certain subsets of the Canadian population have faced more drastic measures in response to the COVID-19 pandemic as a result of communal living and the inherent risk of contracting COVID-19 in such situations. One subset of the population which has been disproportionately affected by the onset of the COVID-19 pandemic are inmates in Canada’s correctional facilities.

The everyday lives of inmates in Canada’s correctional facilities is vastly different from what it once was prior to the onset of COVID-19, and the justice system must adapt accordingly to this. In Criminal Law During (and After) COVID-19, Skolnik discussed the significant impacts which COVID-19 has had on inmates, including “a greater number of lockdowns, which bars their ability to access showers, outdoor areas, and other shared spaces.” 1 As a direct result of these measures, inmates are facing significant physical and mental health problems. 2 Skolnik also indicated that inmates are receiving less food of lower quality, lack accessibility to personal protective equipment, cannot practice physical distancing, and are unable to practice effective hygiene practices. 3

Due to the communal nature of correctional facilities and the difficulties that staff face in ensuring proper physical distancing protocol is followed, the risk of inmates contracting COVID-19 while incarcerated is increased. This is compounded by the fact that inmates are a particularly vulnerable subset of Canada’s population, despite what a certain leader of a federal political party may irresponsibly claim on Twitter. Studies have indicated not only that inmates have worse health than the general population, 4 they have limited access to health care services, 5 and higher incidences of mental illness. 6 Consequently, the threat of a COVID-19 outbreak in a correctional facility poses considerable mental, physical and emotional strain upon inmates, especially in light of the devastating health effects which it is known to cause.

With that being said, the impact of COVID-19 on individual inmates is unique. Each inmate has their own experience, depending on the facility in which they are incarcerated, the COVID-19 situation in that province, the inmate’s own health, among other factors. Here in Manitoba, there have been multiple outbreaks of COVID-19 in facilities across the province. As of December 30, 2020, CBC reported a total of 834 infections linked to correctional facilities across Manitoba, 690 of which were inmate infections. 7

Due to the increase in lockdowns (which has startling tolls on inmates), the risk of COVID-19, the restriction of much-needed programming inside correctional facilities, and conditions becoming markedly worse as result of the pandemic, there is an increase in case law, supporting the notion that inmates should receive enhanced credit for time served prior to sentencing above and beyond the baseline of 1.5 days of credit for 1 day served. This baseline is rooted in the Supreme Court decision of R v Summers, 8 and s 719(3)-(3.1) of the Criminal Code, which provides:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody. (3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody. 9

Interestingly (and rightly in my opinion), enhanced credit is being granted both on the basis of lockdown measures as well as the COVID-19 pandemic upon inmates generally. The result is such that there are two inter-mingling streams of case law emerging in which enhanced credit is being sought by defence counsel prior to sentencing: (1) enhanced credit due to lockdown measures, and (2) enhanced credit and/or sentence reductions due to COVID-19 and more broadly. Here in Manitoba however, only the second ground, and namely only sentence reductions is seeing meaningful consideration. Nevertheless, if we look to Ontario, there are many cases receiving enhanced credit on the first ground. 10

Ultimately, the jurisprudence in this area of law is dynamic due to the nature of the COVID-19 response in Canada and its courtrooms. As the pandemic rages on, an increasing number of decisions will be released which address the issues stemming from COVID-19 in Canada’s correctional facilities, and this may provide some clarity. However, much of the current jurisprudence indicates that the devastating effects of COVID-19 ought to bear weight in either the determination of an offender’s pre-sentence credit, or at the actual sentencing stage. 11

It must be emphasized that at the current moment, all inmates are beyond the point of being merely at-risk for contracting COVID-19. Inmates face uncertain futures in which the unknown effects of lockdown, the stress of incarceration during a pandemic, and the overall effects of contracting COVID-19 will emerge. This uncertainty is a life sentence in and of itself, and many inmates will carry this with them forevermore. As a result, the courts should adjust sentencing procedures and principles, in light of COVID-19, to recognize the unduly harsh conditions and risks which inmates face as direct result of the deprivation of their liberty by the state.

Endnotes..............................

1 Terry Skolnik, “Criminal Law Durign (and After) COVID-19” (2020) 43 Man LJ 145 at 165 (WL), citing John Ivison, “Prisoners are Sitting Ducks as Ottawa Lets COVID-19 Sweep through Canadian Jails”, (21 April 2020), online: National Post <nationalpost.com> [perma.cc/D3AV-QXRE].

2 Skolnik, supra note 1 at 165, citing Richard Warnica, “The Hidden Pandemic: Social Distancing is Nearly Impossible in Care Homes, Prisons and Shelters”, (25 April 2020), online: National Post <nationalpost.com> [perma.cc/PHY5-755Z].

3 Skolnik, supra note 1 at 165, citing Teri Theodore, “Doctors Urge Governments to Release as Many Inmates as Possible amid COVID” (7 April 2020), online: The Globe and Mail <theglobeandmail.com> [perma.cc/3DDH-FT7W].

4 Skolnik, supra note 1 at 166, citing Fiona Kouyoumdjian et al, “Health Status of Prisoners in Canada: Narrative Review” (2016) 62:3 Can Family Physician 215 at 219.

5 Skolnik, supra note 1 at 166, citing Adam Miller, “Prison Health Care Inequality” (2013) 185:6 CMAG 249 at 249-250.

6 Skolnik, supra note 1 at 166, citing Fiona Kouyoumdjian et al, “Health Status of Prisoners in Canada: Narrative Review” (2016) 62:3 Can Family Physician 215 at 219.

7 Nicholas Frew & Cameron MacLean, “Federal prisons could have better prepared for COVID-19, advocate says after Stony Mountain inmate dies”, (29 December 2020), online: CBC <cbc.ca> [perma.cc/WJJ9-85PD].

8 R v Summers, [2014] 1 SCR 575, [Summers].

9 Criminal Code, RSC 1985, c C-46, s 719(3)-(3.1).

10 See footnote below.

11 See R v Omoragbon, 2020 ONCA 336; R v Stevens, 2020 ONCJ 616; R v Inniss, 2017 ONSC 2779; R v Marong, 2020 ONCA 598; R c Bah, 2020 QCCQ 2199; R v LAA, 2020 ONCJ 556; R v Kazman, 2020 ONCA 251.