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Pre-trial Detention and COVID-19

By Cameron Rogers

Introduction

An individual who has been convicted of a criminal offence can receive credit in their sentence for time served in jail before conviction. Section 719(3) of the Criminal Code gives judges the discretion to give credit for pretrial detention. Sometimes extra credit is given for harsh pretrial conditions.

This has important and practical implications during the Covid pandemic as, recently, we have seen a number of Covid breakouts in prisons around Kingston. In one prison setting, we saw the number of infected individuals go from 0 to 80 in a matter of days.[1] This startling rise showcases the ease at which Covid can be transmitted in an enclosed space.

The confined nature of prisons makes them natural incubators of Covid breakouts. Unlike free people, those in detention cannot engage in “’social distancing’ and ‘self-quarantine’ and ‘flattening the curve’ of the epidemic”.[2] As Justin Piché, an associate professor of criminology at the University of Ottawa states, this leaves inmates as “sitting ducks.”[3]

There is no doubt that the pandemic can weigh heavily on an individual confined to prison. However, judicial application of Covid and pretrial detention in relation to reduced sentencing has been mixed in Ontario. In this blog post, we examine if judges have granted pretrial detention credit for offenders who serve time in Ontario prisons.

Mixed Messages in the Trial Courts

Recent cases showcase how Covid affects credit for sentencing. In R. v. Brown, the defendant was sentenced to 4 years imprisonment for possession of drugs and a handgun. The defendant had already served 215 days in pretrial detention. The judge credited an extra 150 days and reduced the sentence for the harsh jail conditions, due in part, to the Covid pandemic. In this case the defendant was not elderly and did not have any medical conditions.[4]

Furthermore, judges appear to be willing to grant enhanced credit for harsh Covid conditions for even serious offences. In R. v. Kochanska, the defendant was convicted of trafficking heroin, fentanyl and carfentanil. The judge noted the accused’s crimes were serious and warranted a lengthy punishment of deterrence. Still, the judge allowed enhanced credit of 0.5 for each day he spent in pretrial detention during Covid. The accused spent 130 days in pretrial detention and was thus given 65 EXTRA days credit in his sentence.[5]

Other judges have also been willing to use Covid conditions in pretrial detention to reduce an offender’s sentence. In R. v. MB, the defendant convicted of child pornography and child luring. He was sentenced to 4.5 years in prison. In that case, the accused spent 564 days in pretrial detention. The judge recognized that the Covid pandemic led to harsh conditions in pretrial detention. The judge granted an extra 200 days of pretrial credit due to harsh jail conditions.[6]

On the other hand, certain judges have been reluctant to use the Covid pandemic to grant sentencing credit for pretrial detention. In the recent case of R. v. Alvarado, the defendant was convicted of arson endangering life. The judge raised the possibility that pretrial detention conditions could lead to sentencing credit. However, the judge declined to subtract any pretrial detention for Covid factors. Namely, the judge could not find evidence the defendant suffered from underlying conditions that that would put him at risk of great harm if he contracted Covid.[7]

Patterns that Emerge: Pretrial Detention, Covid and Sentencing Credit

While mixed messages have come out of the courts regarding Covid, pretrial detention and sentence reductions, there are some general patterns that emerge.

First, there is more likely to be a reduction in sentence for pretrial detention if a defendant can prove that they have a medical condition that makes them vulnerable to the effects of Covid. This may include if you are elderly or have asthma, HIV or obesity. However, as we saw in the recent case of Brown, it is not necessary to have a medical condition and some judges are willing to give credit regardless. Second, it appears enhanced credit is warranted for all types of offences, whether it’s child luring, possession of weapons or sale of illegal drugs.

Conclusion

In order to argue for an enhanced credit on a sentence, it could be enough to emphasize the psychological effects of being in pretrial detention during Covid. As the judge stated in R. v. Hearns, there is a psychological toll that being in prison during the pandemic can inflict on inmates. Even if a prisoner is never exposed to the virus, an inmate’s lack of ability to control exposure contributes to the psychological stressors of being in a confined space.

In certain circumstances, the lawyers at Aitken Robertson can argue that conditions in your pretrial detention warrant a reduction in your sentence. If you or someone you know has spent time in pretrial detention or has been charged with any offence, you will want a lawyer with experience. The lawyers at Aitken Robertson have years of experience arguing to reduce a defendant’s sentence. Call us for a free consultation.


[1] https://www.thestar.com/news/canada/2020/12/17/80-inmates-test-positive-in-sudden-outbreak-at-kingston-prison-up-from-zero-wednesday.html

[2] https://www.newyorker.com/news/q-and-a/how-prisons-and-jails-can-respond-to-the-coronavirus

[3] https://www.cbc.ca/news/canada/ottawa/inmates-covid-19-prison-advocates-1.5849025

[4] R. v. Brown, 2020 ONSC 6355.

[5] R. v. Kochanska, 2020 ONCJ 385.

[6] R. v. MB, 2020 ONSC 7605.

[7] R. v. Alvarado 2020 ONCJ 621.

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