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JUDICIAL NOTICE OF COVID-19

As of now, no one truly understands Covid-19, even the doctors. Yet another study tells us that hydroxychloroquine, touted as the miracle drug, is ineffective in treating patients; instead, it leads to patients becoming more prone to cardiac arrest. Despite all the medical progress, it is still uncertain what the best way forward is.

Resultantly, the judiciary is taking all-out precautions to prevent the criminal justice system from falling prey to this pandemic. The sentencing judges are more inclined to release inmates or hand out community sentences instead of imprisoning them in the correctional facilities. Their reason is simple – If the correctional facilities are inflicted with Covid-19, no one would be able to control it. On the other hand, the detention centres themselves have imposed conditions and restricted activities to create physical distancing.  Apart from the tangible impact of Covid, it has intangible effects- resulting in heightened anxiety among the inmates. Any inmate or even the people working at the facilities would be under extreme stress considering their vulnerability – bear in mind that these detention facilities are usually tight, dirty and overcrowded.

One way to overcome this is by decongesting the facilities. Judges have become conscious of the pandemic’s impact and justifying lessened sentences. Sentencing entails balancing the aggravating and the mitigating factors. Inmates are receiving 0.5 credits for any time spent in custody ever since the pandemic induced lockdown in Canada; Implying that the final sentence will be reduced by 0.5 multiplied by the days spent in pre-trial custody.

In the recent case of Her Majesty the Queen and Dagnall William, the accused had spent 213 days in pre-trial custody. The in-custody days were credited at the usual rate of 1.5 credits – equivalent to 320 days. However, the defence also sought credits for in custody time spent during Covid-19. The court opined, and rightly so, that the pandemic has added an extra layer of hardship, and reiterated inmate’s vulnerability to the disease. The accused was credited 0.5 credits over and above the usual for the time spent since March 13. Consequently, Mr. Dagnall received an extra 21 days of credit for his 42 days spent in detention during the pandemic. Dangnall’s final sentence was reduced by 341 days.

While additional credit for pre-trial custody during the pandemic addresses this up to the point of imposition, it does not take into account that the sentence will continue to be served under challenging conditions. A sentence has to be proportionate to the crime, which means that it should be no more than is necessary to reflect the gravity of the offence. But the sentence has to be “fit” also. Fitness considers broader factors. A sentence may be fit even if it is not perfectly proportionate.

The concept of fitness was discussed in the recent case of R. v. Hearns – the court stated that fitness looks, not only at the length of a sentence but the conditions under which it is served. Due to the current health crisis, jails have become harsher environments, either because of the risk of infection or because of restrictive lockdown conditions aimed at preventing infection. Punishment increases, not only by the physical risk of contracting the virus; but also by the psychological effects of being in a high-risk environment with little ability to control exposure. Taking the Judicial notice of the pandemic – a departure from the usual range of sentencing was justified during the current peculiar circumstances. The accused was sentenced to 12 months, which, according to the court, should have ordinarily been 14 months.

It is crucial to protect oneself from the scourge of this pandemic. Everyone, including the government, is doing their best to prevent the spread of Covid-19. As always, weighing more towards individual rights – the judges are performing their part by protecting and preventing the inmates from contracting the disease. Nevertheless, be good citizens-stay at home and wash your hands regularly. Let’s triumph over this.

 

 

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