The Canadian court system, like most of the country, has largely ground to a halt due to the COVID-19 pandemic.
With physical distancing requirements making it impossible to safely hold traditional hearings, court operations across the country have been significantly curtailed.
But there are exceptions for urgent matters – and a search of published court decisions revels that one particular type of case is particularly likely to be deemed urgent: accused and convicted criminals arguing that they should not be in jail or prison, where they are at greater risk of contracting the novel coronavirus.
Based on a search of Canadian legal database CanLii, the matter first shows up in Canadian case law in a decision published on March 16.
One day before Ontario shut down most of its court system, a judge in Brampton, Ont. ordered the release of a man who had pleaded guilty to possession of a prohibited firearm and breaching an order prohibiting him from having firearms.
The man had not yet been sentenced, but had been in custody since his arrest and had served the equivalent of a nearly four-year sentence. The Crown had been seeking a sentence of four or five years, and the defence arguing for three years.
Justice David E. Harris ruled that the man should not have to face the "day to day hardship … and the general risk to the welfare of prison inmates" posed by COVID-19, and ordered that he be released.
"The entire country is being told to avoid congregations of people. A jail is exactly that, a state mandated congregation of people, excluded from the rest of the population by reason of their crimes or alleged crimes," he wrote.
Four days later, a judge in Toronto used similar reasoning in approving bail for a man facing charges of possession for the purpose of drug trafficking.
"The risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home," Justice Jill Copeland wrote.
"The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects. The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells. "
Copeland's decision has since been cited in case after case, with most judges agreeing that some current inmates face unnecessary risks by remaining behind bars, and can instead be released into the community without posing an undue risk to others.
In a judgement released March 27, a defence lawyer used Copeland's ruling to argue that his client, who is charged with offences including attempted murder and aggravated assault, should be allowed bail for the same reason. The judge agreed, releasing the man on strict conditions that include living with his mother and sister and only leaving home for medical or court appointments.
There have been calls to further limit Canada's prison population in the hope of protecting inmates and staff from the novel coronavirus. Several legal organizations have requested that non-violent offenders be given early release from their sentences, and Public Safety Minister Bill Blair has asked correctional officials if some early releases might be possible.
In granting bail to a man in Hamilton who stands accused of drug possession for the purpose of trafficking, among other offences, Justice Andrew Goodman noted that Copeland's precedent should not be taken as a "'get out of jail free' card" or a suggestion that accused offenders should expect to be released on bail during the pandemic.
Indeed, there have been a small number of cases since the courts largely shut down in which bail has not been granted. A judge in Vancouver ruled in late March that the elevated COVID-19 risk in prison did not "tip the scale" in favour of releasing a man awaiting trial on 15 charges, some of which related to credit card fraud and illegal possession of firearms.
"I acknowledge the logic behind that concern, but on the other hand I have been provided with some information to indicate that those responsible for the administration of pre-trial detention facilities in this province have specific measures in place to monitor and address COVID 19 risks," Justice W. Paul Riley wrote.
Last week, a judge in Victoria ruled that a man accused in two break-ins should remain in custody even though he would face an elevated risk of acquiring COVID-19, because if he was released, he would be sent to an addictions treatment facility – where the judge said his risk would be even higher.
Harris, the Ontario judge who ordered the release of a man awaiting sentencing just before the province's courts were largely closed, got another kick at the can this week when he was asked to rule on a bail review for a man awaiting trial on charges including assault, uttering death threats and harassment. It was the man's fourth attempt to get bail since he was arrested in the fall of 2018.
The man had been denied bail three times before, but Harris ruled that the emergence of COVID-19 represented a significant enough change in circumstances to warrant his release. He argued that a jail or prison is now "one of the most dangerous places imaginable" for inmates or correctional workers given the impossibility of physical distancing.
He also quoted former South African leader Nelson Mandela in his decision, writing that "no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.'"