Sentencing In the Time of COVID (Part 2/2) - Caylene Foley

Collateral Consequences

Collateral consequences include “any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender.”[1] The impact of collateral consequences does not displace the general rule that a sentence must be fit; having regard to the particular crime and offender. A sentencing judge may take collateral consequences into account, provided the sentence ultimately imposed is proportionate to the gravity of the offence and degree of responsibility of the offender.[2] The further away the varied sentence is from the range of otherwise appropriate sentences, the less likely it will be proportionate. However, collateral consequences should not extend so far as to usurp other sentencing considerations, especially if the consequence naturally flows from the offence.[3]A collateral consequence must ensure that a sentence remains proportionate to the gravity of the offence and the offender’s responsibility.[4] Whether a reduced sentence is inappropriate depends on how near or how far it departs from the range.

It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it will remain proportionate to the gravity of the offence and the responsibility of the offender. Conversely, the closer the varied sentence is to the range of otherwise appropriate sentences, the more probable it is that the reduced sentence will remain proportionate, and thus reasonable and appropriate.[5]

In R v Stevens, the sentencing judge found that the potential risk posed by the pandemic was best characterized as a collateral consequence.[6] Collateral consequences relate to the principle of proportionality espoused in section 718.1 of the Code. If the potential impact of COVID-19 on an offender sentenced to prison may result in the offender serving a sentence which is disproportionate, then it is considered a collateral consequence.[7] During this pandemic, a prison sentence could mean that an offender is placed at risk of contracting a potentially harmful disease or is subjected to lengthy periods of lockdown, lack of stimulation, and social isolation in trying to prevent the spread in institutions. When this is viewed with the offence they have committed, what would have been a fit sentence pre-COVID-19 can become disproportionately punitive due to harsher conditions and possible health risks.

Collateral consequence can take into account the personal circumstances of an offender and whether a custodial sentence would have a more significant impact on the offender because of their circumstances.[8] The Ontario Court of Appeal characterized the effects of COVID-19 in custody as falling into the category of collateral consequences for sentencing purposes.[9] Due to the increased hardships while incarcerated, in order to provide a fit sentence, a reduction may be warranted to account for hardship without reducing the sentence to a point where it becomes disproportionate to the gravity of the offence. This allows for collateral consequences to be kept in mind, while still adequately addressing the principles of sentencing.[10] The increased hardships the offender will face, such as lockdowns and reduced access to programming, are “collateral consequences.”

Collateral consequences do appear to be the most common way in which courts have addressed the COVID-19 pandemic. However, it is not the only way the virus has been viewed in sentencing.

Exceptional Circumstances

Exceptional circumstances in sentencing are not a new concept, but the concept of exceptional circumstances is devoid of precise definition.[11] Using basic dictionary definitions, exceptional circumstances are “Conditions which are out of the ordinary course of events; unusual.”[12] Typically, exceptional circumstances relate to the offender: age, character of the accused, nature of the offence and the circumstances surrounding the commission of the offence,[13] if a guilty plea was entered early,[14] and circumstances that tend to lessen the guilt of the accused or the seeming seriousness of the offence charged.[15] Exceptional circumstances allow for a sentencing judge to depart from established sentencing ranges and, instead, impose a sentence that they feel is fit.[16] Overall, exceptional circumstances should be circumstances that are above and beyond the norm to justify a non-custodial sentence.[17] Exceptional circumstances in sentencing are rare and do not usually involve circumstances such as COVID-19. The question is, should COVID-19 be considered as an exceptional circumstance in sentencing an offender, as it is an event that is out of the ordinary?

In R v Dakin, COVID-19 constituted a material change in circumstances to be considered in a sentencing hearing, which, to this author, makes COVID-19 seem to fall within the exceptional circumstances category.[18] In this case, it was noted that fear and concern about being in jail during the COVID-19 pandemic was a common theme. In considering an appropriate sentence, the sentencing judge looked at “medical evidence that demonstrates the defendant’s health concerns are real, significant and would result in him being higher risk for contracting COVID-19 or suffering more serious consequences.”[19] Mr. Dakin was also given COVID-19 credit for “harsh pre-trial conditions” for time spent incarcerated.[20]

In R v Wilson, counsel argued that a lengthier period of incarceration would normally be warranted, however, there were exceptional circumstances due to COVID-19 and any jail sentence should have considered the pandemic as a factor. The sentencing judge agreed with this submission, finding that COVID-19 was an exceptional circumstance. Had it not been for the pandemic, a lengthier period of incarceration would have been imposed.[21]

In the case of R v Bains, the sentencing judge found that there were exceptional circumstances created by the COVID-19 pandemic and that the justice system, faced with this pandemic, needed to quickly pivot and allow for things such as remote appearances for participants in criminal cases. This case was interesting not because the sentencing judge found exceptional circumstances, but because the judge, in creating the bail plan prior to the sentencing hearing, ordered Mr. Bains to quarantine and test for 14 days prior to sentencing unless he got vaccinated prior to the sentencing hearing.[22]

R v Young, on the other hand did not accept that the ongoing COVID-19 pandemic was an “exceptional circumstance,” as it was irrelevant to the rehabilitation of Mr. Young. Mr. Young was immunocompromised, had serious health issues, and obtained doctor’s notes stating that Young’s severe health issues put him at a great risk of death if he contracted Covid-19.[23] The sentencing judge did, however, find that the COVID-19 pandemic fell more into the collateral consequence category.[24] The sentencing judge felt that a “reduction of sentence predicated solely on the existence of COVID-19 would be arbitrary as persons already serving sentences could not benefit even though they faced the exact same level of risk.”[25] The sentencing judge opined that a significant reduction to what would otherwise be a fit sentence requires evidence of the collateral impact of COVID-19 and the interplay between the offender’s health and the virus.[26] The judge found that there was a lack of information in regard to correctional facilities and COVID-19 infection rates. Seeing as how there was no evidence put forth that Mr. Young would be more at risk in prison than out of prison, COVID-19 could not be considered an exceptional circumstance.[27]

These cases illustrate that where COVID-19 falls within sentencing varies. For one jurisdiction, it is an exceptional circumstance and in another, it is not. They also illustrate that judges can use COVID-19 to be creative not just at the sentencing stage, but also as was illustrated in Bains at the judicial interim release stage.

Mitigating Factors

Mitigating factors are factors that will generally lead to a less harsh sentence being imposed.[28] These factors relate to the circumstances of the offence and the offender. Mitigating factors are related to the circumstances of the crime and the offender’s personal circumstances. Section 718.2 of the Code outlines mitigating and aggravating factors, principles of party, totality, and restraint in sentencing.[29] Mitigating factors can be the age of the accused, whether a guilty plea had been entered, successful rehabilitation, lack of a criminal record, mistake of law, remorse, co-operation with authorities, and pre-trial bail conditions.[30] In R v Rusk, COVID-19 was somewhat viewed as a mitigating factor and did affect the overall sentence imposed on Mr. Rusk.[31] In R v Pangon, COVID-19 was not considered a mitigating factor in the traditional sense, but it was considered an important part of the sentencing equation, putting COVID-19 in the mitigating factors category.[32] In R v Hearns, COVID-19 was a mitigating factor in the fitness of the overall sentence.[33]

The problem with viewing COVID-19 as a mitigating factor is that it turns judges into medical scientists that try to assess the personal risk to an offender in custody and how the pandemic should mitigate a sentence when no medical evidence is provided.[34] In R v Hannaford, the offender was seeking to have COVID-19 mitigate his sentence. He was suffering from a gunshot wound that was necrotic, thus causing him to be immunocompromised. There was no medical evidence submitted at sentencing that the gunshot wound would impact him if he got COVID-19.[35] The sentencing judge did not consider COVID-19 when sentencing the offender, as there was no evidence before him to support COVID-19 as a mitigating factor in the sentence.

COVID-19 is treated differently across Canada. It appears to depend on how the sentencing judge views the issue,[36] creating inconsistences in sentencing. Viewing COVID-19 as a mitigating factor could be problematic as it could become a lottery of when COVID-19 would be considered during sentencing. COVID-19 and the impact and hardships it has had on people who are incarcerated is becoming well known among sentencing judges,[37] but does that mean that it should be considered a mitigating factor in sentencing? Regardless of how COVID-19 is considered in sentencing, there needs to be a clear and consistent approach in its application towards sentencing and in pre-sentence credit that is given.[38]

COVID-19 and Creating Diversity in the Sentencing Process

In considering COVID-19, when it comes to sentencing, the real question becomes what factors should be considered by the courts in the reduction of a sentence and the quantum of such a reduction.[39] Given the fact that the pandemic will continue to last for an indefinite period into the future, there needs to be some sort of guideline as to how sentencing judges are to treat COVID-19 in sentencing offenders. Outbreaks in correctional facilities have happened, leading to the closing of some institutions and the transferring of inmates to other institutions.[40] The safety of offenders is not usually the sentencing judge’s concern. It normally falls to prison authorities to assess the risk of COVID-19 and is not a relevant factor to be taken into account in imposing a fit sentence.[41] However, given COVID-19 and the impact it has had on correctional facilities in Canada, it is something that judges need to consider when imposing a sentence; otherwise, the sentence imposed could be unduly punitive.

Inmates face an elevated risk of contracting COVID-19, as the ability to protect themselves against contracting the virus while in custody is limited, if not impossible.[42] This pandemic can only be viewed as a material change in circumstances that needs to be considered when forming a sentence. What was once an issue for prison authorities has now become an issue that judges need to consider.[43] However, this is an opportunity for sentencing judges to really embrace non-custodial measures in sentencing and begin to craft creative sentences due to COVID-19; due to the need to protect those in correctional facilities. Sentencing judges should also consider how delays caused by the pandemic impact the offender and a fit sentence.[44] These are unique times, and they call for unique sentences.[45]

In R v Dakin it was suggested that “close” cases be reduced to time served; that more lenient sentences should be imposed. Furthermore, a credit for “COVID-19” that takes into account the harsh pre-trial conditions as well as considering the harsh conditions an offender will face when serving an in-custody sentence should be imposed.[46] In Leclair, it was noted that there should be short COVID-19 credit for lockdowns and reduced services within correctional facilities.[47] It has now become necessary for a judge to recognize the harsher conditions of imprisonment and that a custodial term can now be more punitive. Reducing an overall sentence to keep a sentence proportionate and in parity does not tread on the parole board’s statutory responsibility.[48] Sentencing judges have always had broad authority to consider a wide range of information in fashioning a fit sentence for the circumstance of the offender and the offence. COVID-19 has just become something else for a judge to consider.[49]

In R v Parasmothy it was suggested that judges move towards decreasing the inmate population by releasing offenders with creative sentences that avoid incarceration.[50] This idea of finding sentences that avoid incarceration is, in this author’s opinion, a positive aspect to the COVID-19 pandemic. It is forcing sentencing judges to look at alternatives to incarceration and forces judges to craft sentences that still follow the principles of sentencing; highlighting that deterrence and denunciation can still be met without incarceration.

Terry Skolnik, in their article, argues that COVID-19 has forced the courts to embrace a greater commitment to the presumption of innocence, pre-trial liberty, and non-custodial punishments.[51] The decisions from courts illustrate that the emergence of COVID-19 has shown a move towards non-custodial punishments, as well as mitigating the severity of custodial sentencing. Judges have taken notice of conditions in institutions that create greater hardships.[52] Conditions include the increased number of lockdowns that bar access to showers, outdoor areas, and other shared spaces;[53]as well as restricting access to programming within institutions. These harsher-than-normal conditions created by the pandemic need to be considered. Some solutions to combat these conditions are non-custodial sentences or reduced sentences to be served in institutions; the idea being that custodial sentences during the pandemic are harsher than normal because inmates are exposed to extra health risks and more psychological harm while in jail.[54] While a sentencing judge should not automatically reduce a sentence because of the global pandemic, the pandemic does need to be considered when a judge forms a sentence. A sentence that was fit and proportionate prior to the pandemic could become overly punitive during the pandemic if served through endless lockdowns and limited access to programming.

Conclusion

The world changed in March of 2020. The impact of COVID-19 can be seen in every aspect of life, including how sentencing is conducted in Canadian courts. There does not appear to be a consistent application of COVID-19 in sentencing in Canada; it varies across jurisdictions. Some have viewed COVID-19 as a collateral consequence; others as a mitigating factor, and some as an exceptional circumstance. The only thing that is consistent is the inconsistency of how COVID-19 is viewed and applied. For instance, in a Manitoba case, the sentencing judge was not prepared to consider any reduction as a result of the COVID-19 pandemic, as there was no evidence about the current pandemic conditions in penal institutions in Manitoba that would make the ongoing sentence for the accused harsher.[55] COVID-19 is a unique time for sentencing judges to be creative in sentencing options; to look away from custodial sentences and embrace non-custodial options. Moving forward, it is this author’s opinion that there does need to be some consistency in how COVID-19 is viewed when it comes to sentencing and whether or not judicial notice of the pandemic and its effect on correctional institutions across Canada can be taken.

[1] R v Suter, 2018 SCC 34 at paras 46-48 [Suter]. [2] R v Stevens, 2020 ONCJ 616 at para 49 [Stevens]; see R v Pham, 2013 SCC 15 at paras 14-15 [Pham]. [3] “Collateral Consequences Since R v Suter: Three Cases for Consideration”, online: Jared Craig Law <www.jcraiglaw.com/collateral-consequences-since-r-v-suter-three-cases-for-consideration/#_ftn22>; Blog post with no author listed. [4] Julia Nicol, “Sentencing in Canada Background paper”(5 May 2020), online, s 3(2): Parliament of Canada <lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/202006E?>. [5] Pham, supra note 2. [6] Stevens, supra note 2 at para 47. [7] Ibid at para 47. [8] Ibid at para 48; see Suter, supra note 1. [9] R v Morgan, 2020 ONCA 279 [Morgan]; see R v Lemmen, 2020 BCPC 67 [Lemmen]. [10] R v Marsan, 2020 ONCJ 638 at paras 44-45 [Marsan]; see also R v Aiton-Poore, 2021 ONCJ 85 at paras 71, 81. [11] R v Tran, 2015 MBCA 120 at para 17 [Tran]. [12] Ibid at para 18. [13] "Weighing Evidence - Chapter 10: Judicial notice and specialized knowledge”, online: Immigration and Refugee Board of Canada <irb.gc.ca/en/legal-policy/legal-concepts/Pages/EvidPreu10.aspx>. [14] Early guilty pleas have been considered as exceptional circumstances when combined with other factors, as well as a mitigating factor. [15] Tran, supra note 11 at para 22. [16] Ibid at para 2. [17]Ibid at para 24. [18] R v Dakin, 2020 ONCJ 202 at para 25 [Dakin]. [19] Ibid at para 27. [20] Ibid. [21] R v Wilson, 2020 ONCJ 176 at paras 18, 47. [22] R v Bains, 2022 ONCJ 16 at paras 1,12 [Bains]. [23] R v Young, 2021 BCPC 6 at para 153 [Young]. [24] Dakin, supra note 18 at para 158; see Stevens, supra note 2. [25] Dakin, supra note 18 at para 158. [26] Ibid at para 188. [27] Ibid at paras 179, 188. [28] “Do you know How Sentences are Worked out?”, online: Weisberg <www.weisberg.ca/do-you-know-how-sentences-are-worked-out/>. [29] Dakin, supra note 18 at para 19. [30] Criminal Code, RSC 1985, c C-46, s 718(2). [31] R v Rusk, 2021 ONCJ 343 at para 62. [32] R v Pangon, 2020 NUCJ 30 at para 14. [33] R v Hearns, 2020 ONSC 2365. [34] R v Hannaford, 2020 ONSC 3665. [35] Ibid at para 1. [36] Ibid at para 42. [37] Ibid at para 44. [38] Ibid at para 68. [39] R v Leclair, 2020 ONCJ 260 at para 7 [Leclair]. [40] Ibid at para 100. [41] R v Rafuse, [2004] 193 CCC (3d) 234 (Sask CA). [42] Dakin, supra note 18 at para 23. [43] Chris Rudnicki, “Confronting the Experience of Imprisonment in Sentencing: Lessons from the COVID-19 Jurisprudence” (2021) 99: 3 Can Bar J 469 (“Some judges treated these harsh conditions as a factor that could reduce an otherwise fit sentence. While others rejected this approach insisting that the qualitative conditions of imprisonment are properly left to the parole boards” at 471). [44] R v KTS, 2020 ONSC 2672 at para 146. [45] Dakin, supra note 18; also this author’s view. [46] Dakin, supra note 18 at para 27. [47] Leclair, supra note 39 at para 110. [48] Rudnicki, supra note 43 at 483. [49] Ibid at 487. [50] R v Parasmothy, 2020 ONSC 2314 at para 140. [51] Terry Skolnik, “Criminal Law During (and After) COVID-19” (2020) 43:4 Man LJ 145 at 148. [52] Ibid at 174. [53] Ibid at 165; footnote 122. [54] Ibid at 175. [55] R v RSF, 2021 MBQB 261 at para 123.