B.C.'s justice system has reduced its inmate population by nearly one third over the past two months as a result of the COVID-19 pandemic, but judges and criminal law experts say the virus is no so-called "get out of jail card."
The province's overall inmate count—not including federal prisoners—stood at 1,510, down from 2,184 on March 15, BC Corrections reported, in a May 11 Ministry of Public Safety and Solicitor General bulletin.
BC Corrections has stated that in order to better allow physical distancing between inmates and staff, it has granted temporary absences to inmates serving intermittent sentences, where it is considered appropriate and safe to do so. The prison authority is also conducting risk assessments for non-violent, sentenced individuals for consideration for early release.
"This assessment and ultimate determination on release considers criminal history, sentence length, offence type, and any other relevant information, including risk to public safety. In turn, these factors also shape the level of community supervision that BC Corrections provides to those individuals on temporary absences," according to BC Corrections.
Criminal defense lawyer Joven Narwal, of Narwal Litigation LLP, explains that reduced sentences and early releases are justified when weighed against COVID-19 risks in prison, and the health and safety measures being taken to reduce those risks that are impacting living conditions.
"The reality is that jail sentences have become harsher not simply because of the risk of infection but also because all efforts being made to contain the virus within the institutional walls involve varying forms of isolation, by limiting contact with friends, family and counsel, and segregation, by limiting contact between inmates which has been found to produce negative psychological consequences and outcomes, particularly to those who are already marginalized and mentally ill," said Narwal, via email.
"In other words, the punishment is perceptibly increased as a result of being incarcerated during the pandemic," summarized Narwal.
And so, while BC Corrections considers early releases, judges in court are also weighing these new prison conditions when sentencing criminals, or providing bail to an accused.
"Whether or not the pandemic will have an effect on the sentence involves a balancing of this deadly reality and the ultimate sentence may need to be adjusted to take into the account the vulnerabilities of the accused and the risk to the community at large," said Narwal.
Recent sentencing and bail judgments in B.C. courts have shone a light on this matter. As it relates to bail, judges now weigh the virus against the three usual grounds for release: primary (risk of flight); secondary (reoffending); and tertiary (public confidence in the administration of justice).
On April 29 B.C. Provincial Court Judge G.J. Brown considered COVID-19 in his sentencing decision of a man who assaulted a nurse at Abbotsford Regional Hospital last year.
The judge ruled Neale Rex Heath's attack on the nurse was serious and sentenced the man to 14 months in jail. Having served enough time in pre-trial custody to reduce the remaining jail time to three months, Brown was left to decide if Heath should be kept from prison.
"I recognize that we are in difficult times of COVID-19, and prison populations are particularly susceptible. However, I am not aware of any health concerns that would make Mr. Heath especially vulnerable to the virus.
"In a different type of case I may have cut the sentence short given the COVID-19 concerns, however...my concern here has to be Mr. Heath's treatment and the protection of the public."
A week later on May 5, Brown was asked to release a prisoner at a bail hearing. Gary Patrick Richard faced four charges arising from an attempted break-in at a Canada Post facility. Richard has a "deplorable" and "lengthy record," noted the judge, however he was "asked to consider Mr. Richard's release in light of the COVID-19 pandemic and the unique risks prisoners face in pre-trial centres."
He stated "The risk posed to inmates by the coronavirus while incarcerated in detention centres is a valid factor for me to consider."
However, "As I and other jurists have said in other bail hearings or reviews, the coronavirus is not a 'get out of jail free card.' It is a serious factor to consider and may tip the scales in some cases," added the judge.
Brown cited several Ontario Supreme Court cases to assert his position, including when the court ruled whereby "if an accused should be detained for the protection of the public, the risk of contracting the virus in jail does not alter that fact. A person does not become less of a risk because of COVID-19."
And so, in Richard's case, COVID-19 did not alter the judge's decision because of the risk Richard posed to the public and also the fact Richard has no "unique health susceptibility."
In another case, involving a man named Elvis Erin McIvor who requested bail due to COVID-19, Judge W. Lee ruled that his history of five previous bench warrants "raises serious concerns about whether Mr. McIvor will attend court for sentencing. His proposed release plan does nothing to reduce those concerns."
Counsel for McIvor had previously suggested that, according to the judgment, "the level of credit given by the court may be further enhanced due to pre-trial detention in a facility where there has been an incident of COVID-19," that being the North Fraser Pre-Trial Centre.
On the flip side, on May 5, a provincial court judge imposed house arrest terms on a man found to have breached a B.C. Securities Commission trading ban order.
"At the sentencing hearing, the judge stated that due to the circumstances of the COVID-19 pandemic a suspended sentence and probation order, with terms similar to house arrest, would be more appropriate than a jail term for this offender. Under the terms of the probation order, [Richard] Good is allowed to leave his house for only one hour per day," stated a BCSC news release on the matter.
B.C. judges have also been citing an Ontario Superior Court of Justice decision as a case in which COVID-19 may result in less prison time.
In R. v. J.S. judge J. Copeland determined there was no risk of the accused offender fleeing or reoffending.
And so, "the greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on house arrest is a factor that must be considered in assessing the tertiary ground."
Copeland ultimately ruled, "His release on strict terms would not undermine public confidence in the administration of justice."
Narwal stressed that while some may view the depopulation of B.C. prisons as somehow giving prisoners a break, and thus bringing the administration of justice into disrepute, it his view that not depopulating prisons, but not considering the special vulnerabilities, would do the same.
"There is no 'COVID-discount' and the pandemic is not a 'get out of jail free card,' but (the virus) is a relevant factor that must be taken into account and balanced against the needs of the administration of justice," said Narwal.
He also noted a lower inmate population is good for public health "as the jails are a breeding ground for rapid close-quarter infection of inmates and those to work inside or visit the facilities."
The largest outbreak in a B.C. prison so far has been the Mission Medium Institute, although it is operated federally by Correctional Service Canada.
Mission has seen 120 confirmed cases of COVID-19 among its prison population and one prisoner has died, prompting calls for an independent inquiry.
