COVID-19 and the Tertiary Ground, 2020 CanLIIDocs 676
The world is in the grip of a global pandemic of proportions not seen in at least a century, and perhaps never before.
Certainly, the larger societal and economic effects of the COVID19 pandemic are unprecedented, and the final resulting effects defy prediction. At present, courts are attempting to do their work in ways considered impossible a few weeks ago. Ongoing prosecutions are being subjected to severe triage processes, and courts are exercising options which would not have been previously considered. Since March 12, 2020, when the World Health Organization declared the novel coronavirus (COVID19) to be a global pandemic, a number of courts have been called upon to consider the effect of this unprecedented event on traditional bail considerations. Predictably, results have varied. This article examines the considerations of Canadian jurists of the impact of the pandemic on decisions of judicial interim release.
(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
Most of the judicial consideration of COVID19 thus far has held that it is primarily relevant to the third or tertiary ground. Comment, almost in passing, has been made to the effect that, to the extent that the pandemic is relevant to the primary ground, it reduces concerns of flight, because travel, both domestic and international, has become considerably more difficult and restricted.
The secondary ground is generally understood to be unaffected by the COVID19 pandemic, although at least one jurist has stated otherwise. In R. v. King (sub nom T.K.) 2020 ONSC 1935 Justice Goodman stated:
While the consideration of this risk factor in J.S. is focused under the tertiary ground, I would go further and find that the jeopardy and risk posed to inmates from COVID-19 while incarcerated in detention centres awaiting trials (that are currently suspended) is also a valid factor when considering the secondary ground for detention; in particular for non-violent offenders on a bail review.
These aside, most of the jurisprudence considering the global pandemic in the context of judicial interim release has related the pandemic to considerations under the tertiary ground.
The Supreme Court of Canada provided the definitive interpretation of the tertiary ground set out in s.515(10)(c) in R. v. St. Cloud 2015 SCC 27. The Court held that the four circumstances listed in s. 515(10)(c) Cr. C. are not exhaustive, and that a court must not order detention automatically even where the four listed circumstances support such a result. Rather, the court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances. No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.
In holding that the list of circumstances set out in s.515(10) is not exhaustive, the Court left open the ability of courts to consider other factors not specifically enumerated.
One of the first decisions to grapple with the issue was R. v. J.S., 2020 ONSC 1710 (released 20 March 2020) in which Justice Copeland held:
This brings me to the second material change, the current situation with the Coronavirus. As I have noted, the tertiary ground requires a court to consider all of the circumstances….
In my view, 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.
I want to be clear that I am not suggesting any failure of the correctional authorities to take appropriate steps to attempt to keep inmates healthy, and to attempt to limit the spread of the virus. But I take notice of the fact, based on current events around the world, and in this province, that 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. 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. I note that this factor concerns not only Mr. S.’s own health, but also the preservation of scarce hospital resources to treat patients. If more people are infected, those resources will be more strained.
This decision was promptly followed by a contrary view in R. v. Nelson 2020 ONSC 1728 (released 23 March 2020) in which Justice Edwards summarized the position of the applicant as follows:
In a refreshing degree of candour, Mr. Sarikaya conceded that but for the virus, he fully recognized that the new plan of release was not one that had much, if any, chance of success. Mr. Sarikaya concentrated his submissions on the undeniable media attention and government response to the virus. In essence, Mr. Sarikaya argues that as an accused who is presumed innocent of the charges he presently faces, he should not be subject to the heightened risk of contracting the virus – a risk that is heightened because of the conditions that exist in a prison environment.
While agreeing generally with Copeland J that judicial notice could be taken of the existence of the pandemic, Justice Edwards went on to hold:
I suspect that as this virus worsens, we may see many more applications for bail. While Mr. Nelson did not specifically address any physical or mental health issues posed by the virus and his continued detention, it will be important that future applications proceed with the benefit of at least some rudimentary evidence that could suggest an accused is more susceptible to contract the virus due to underlying health issues. I take judicial notice from everything available via the media and the internet, that younger persons are said to be much less likely to experience the virus in its most severe form. I also take judicial notice that there are some media reports that even younger persons may become ill with the virus. On balance, the information that is available to everyone would suggest older members of society are the ones most susceptible to the virus in its most serious form.
An incarcerated person who is advancing in age and who has underlying health issues will, almost without doubt, be at a greater health risk of contracting the virus, with possible serious ramifications. In these circumstances, the tertiary ground may require the reviewing court to consider whether confidence in the administration of justice dictates that confidence may be lost if those who are at greatest risk remain in custody.
Justice Edwards held Mr. Nelson was not a suitable candidate for release, notwithstanding the pandemic.
In R. v. Alexander 2020 N.J. No. 69 (released 24 March 2020), Judge Gorman of the Newfoundland Provincial Court held that, although travel restrictions flowing from the global pandemic operate to reduce the concern of flight under the primary ground, the COVID19 pandemic in itself was not a basis to release:
I do not accept, therefore, that "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" whether the Criminal Code requires detention (see R. v. J.S., 2020 ONSC 1710, at paragraph 18). It may be that a judge can take judicial notice that a virus can be more easily transmitted in most prisons than elsewhere, but that cannot be the basis for release.
However global concerns continued to mount, and on 27 March 2020, Justice Conlan delivered R. v. C.J. 2020 ONSC 1933, holding:
As to any suggestion that this Court may need “evidence” that C.J. is, while at the jail, more at risk of contracting COVID-19 than if he was not in jail, I reject that submission. I accept what I already have as evidence from C.J. – Maplehurst Detention Centre has curtailed or eliminated altogether the few niceties that prisoners had available to them previously, such as family visits and religious services. Viewed strictly in the context of the virus, that is welcome news. But I also do not live in a bubble; it is incontrovertible that a jail setting is not conducive to the types of physical distancing and other safety measures being recommended by all of the health authorities to help protect oneself against the virus. To demand some “evidence” in support of that is, with respect to any contrarian view, unnecessary.
To a similar effect is the decision in R. v. T.L. 2020 ONSC 1885 (released 30 March 2020) in which Justice Molloy held:
 In the unique circumstances in which we now find ourselves, facing a global COVID-19 pandemic, it is also relevant to take into account the realities of detention and release in our current environment. Mr. L. is currently detained at the Toronto East Detention Centre. He is presumed to be innocent of the crimes with which he is charged. At the current time, all courts are effectively closed except for emergency applications. All matters scheduled for trial in the Superior Court of Justice from mid-March through to the end of May have been adjourned to June. Even assuming the courts are open for business as usual at that point, a significant backlog will have been created. It is very difficult to predict when Mr. L.’s trial will be reached, but we can expect it will be many months from now, probably longer. The additional time that Mr. L. will be in custody pending his trial is a factor to take into account on the tertiary ground.
 Detention prior to trial is difficult at the best of times, which is one of the reasons that, on sentencing, extra credit is provided for pre-trial custody. In the middle of a pandemic, serving that time in an institution is even more difficult. Transmission of the virus would be so much easier within an institution than in a private home. Protective measures being undertaken by the rest of the community (such as not congregating in groups, self-isolation, social distancing, maintaining a six-foot distance between people) are not as easily achieved in an institutional prison environment. Not only that, the more people that are housed in the institutions, the harder it will become to achieve any distancing to prevent infection or to contain or treat any infections that do occur. It is in the interests of society as a whole, as well as the inmate population, to release people who can be properly supervised outside the institutions. It better protects those who must be housed in the institutions (because there are no other reasonable options), those who work in the institutions (because they perform an essential service), and our whole community (because we can ill-afford to have breakouts of infection in institutions, requiring increased correctional staffing, increased medical staffing, and increased demand on other scarce resources).
On the same date, Justice Goodman released R. v. King (sub nom T.K.) referred to above. In addition to expressing agreement with the decision of Justice Copeland in R. v. J.S. (supra), Justice Goodman went further and held that risk from COVID19 to detained inmates awaiting trials which are being deferred for an unknown length of time is relevant to the secondary ground. Justice Goodman also noted the decision in R. v. Nelson (supra) and also took note of the Report of the World Health Organization (WHO) March 15, 2020 report entitled: Preparedness, prevention and control of COVID-19 in prisons and other places of detention: Interim guidance:
People deprived of their liberty, such as people in prisons and other places of detention, are likely to be more vulnerable to the coronavirus disease (COVID-19) outbreak than the general population because of the confined conditions in which they live together for prolonged periods of time. Moreover, experience shows that prisons, jails and similar settings where people are gathered in close proximity may act as a source of infection, amplification and spread of infectious diseases within and beyond prisons. Prison health is therefore widely considered as public health. The response to COVID-19 in prisons and other places of detention is particularly challenging, requiring a whole-of-government and whole-of-society approach...
1.Widespread transmission of an infectious pathogen affecting the community at large poses a threat of introduction of the infectious agent into prisons and other places of detention; the risk of rapidly increasing transmission of the disease within prisons or other places of detention is likely to have an amplifying effect on the epidemic, swiftly multiplying the number of people affected.
2. Efforts to control COVID-19 in the community are likely to fail if strong infection prevention and control (IPC) measures, adequate testing, treatment and care are not carried out in prisons and other places of detention as well.
3. In many countries, responsibility for health-care provision in prisons and other places of detention lies with the Ministry of Justice/Internal Affairs. Even if this responsibility is held by the Ministry of Health, coordination and collaboration between health and justice sectors are paramount if the health of people in prisons and other places of detention and the wider community is to be protected.
4. People in prisons and other places of detention are already deprived of their liberty and may react differently to further restrictive measures imposed upon them.
Further discussion has continued. More courts have accepted that the pandemic is a material change in circumstances, justifying a review of detention under s.520. The extent to which evidence must be called, or the extent to which a particular accused must demonstrate some particular vulnerability, continued to be hotly contested. In R. v. Cain 2020 ONSC 2018 Justice London-Weinstein held that:
I take judicial notice of the fact that this virus is contagious before a person demonstrates signs of infection and that persons can be asymptomatic, yet highly contagious. These are facts which are well known in the community given the proliferation of media coverage on the subject of the virus. I note also, how rapidly events have changed from week to week, with a corresponding rise in the numbers of individuals who are infected.
I also take judicial notice of the fact that recommended social distancing and frequent hand washing which are required as protection against the virus, are not readily available while a person is in custody at the Ottawa Carleton Detention Centre (“OCDC”). This is not a criticism of the facility, it is merely a statement of the fact that prisoners cannot adequately socially isolate, nor wash their hands with frequency in the jail.
This position has not been universally accepted. The Newfoundland decision in Alexander is noted above, and more recently, the Justice Feth of the Alberta Court of Queen’s Bench delivered a decision on a bail review application in R. v. G.T.B. 2020 ABQB 228 (delivered 3 April 2020). Although ultimately granting release, Justice Feth took issue with the Courts in J.S., Cain, T.K., C.J. and T.L. on the basis that these decisions demonstrated an improper over-extension of the doctrine of judicial notice and that, absent evidence about counter-measures employed by correctional authorities, and the efficacy thereof, he could make no finding as to the extent to which the global pandemic posed a threat to the health or safety of the applicant.
Justice Feth did accept the existence of the pandemic as a fact, and that it was relevant to the tertiary ground. Noting the applicant’s strong release plan and aboriginal heritage, release was ordered.
Similarly, in R. v. Jeyakanthan 2020 ONSC 1984 (released 31 March 2020) Justice McWatt expressly rejected the holding in J.S. and held that it was based on speculation, rather than evidence, and that the applicant bore an onus to lead evidence of particular medical vulnerability. In fact, the Court here went so far as to hold that COVID19 was not even a material change in circumstances, the only court in Canada to so hold (to date).
As the above demonstrates, courts have been somewhat divided in the approach to the effect of the COVID19 pandemic on judicial interim release. It appears that the weight of authority is building toward a position to the effect that the global pandemic cannot be ignored, that it constitutes a material change in circumstances, and (for most courts) amounts to a free-standing reason to consider or re-consider release. All courts commenting on the issue thus far have been consistent in holding that public safety and traditional bail considerations cannot be overwhelmed. The pandemic, in other words, cannot become a panic, and is not a “get-out-of-jail-free” card.
Most provincial corrections authorities have issued public statements regarding steps taken to combat the spread of the novel coronavirus. It is submitted that it would be a proper and reasonable application of the doctrine of judicial notice for any court to accept, without evidence, the following facts:
• The world is in the midst of a global pandemic, caused by the COVID19 coronavirus;
• The mortality rate is approximately 1%, or ten times that of common influenza;
• The virus is highly contagious;
• Governments around the world are taking extraordinary measures to combat the spread of the virus, including the forced closure of many businesses, travel restrictions, bans on public gatherings, and other measures;
• As recognized by the WHO, jails and prisons are highly vulnerable to infection;
• All of the foregoing amounts to a material change in the circumstances of any detained person, justifying a review of detention pursuant to s.520;
• New social realities are to be weighed as part of the tertiary ground, and balanced against other considerations, including public safety and public confidence in the administration of justice.
COVID-19 and the Tertiary Ground, 2020 CanLIIDocs 676
Author(s) :Paul L MoreauPublisher(s) :CanLII Authors Program Copyright :© 2020, Paul L MoreauLicense :This work is licensed under the CanLII user license which includes the right of the User to make copies of the work for legal research purposes, in the practice of law or in the exercise of their legal rights.Citation :Paul L Moreau, COVID-19 and the Tertiary Ground, CanLII Authors Program, 2020 CanLIIDocs 676, <http://www.canlii.org/t/ss69>, retrieved on 2020-05-11