Mar 22, 2020

R. v. J.S., 2020 ONSC 1710 - Detention review during a pandemic

R. v. J.S., 2020 ONSC 1710 (CanLII)

When a person is denied bail, or is released with conditions they consider excessive, they can apply to a judge to review the initial decision under section 520 of the Criminal Code. To succeed, the accused must show cause (s. 520(7)e) C.C.). The section itself does not, however, explain how that can be done. The courts, notably in R. v. St-Cloud, 2015 SCC 27, have held that this section does not provide for an unfettered discretion to review the initial order. Intervention by the reviewing judge is only possible if it contained an error of law, was clearly inappropriate, or if the accused can show a material change of circumstances that would warrant intervention.

In this case, the accused had initially remained detained under the tertiary ground found in s. 515(10)c) C.C. [par. 6], that is, that it was "necessary to maintain confidence in the administration of justice, having regard to all the circumstances". The Code provides that those circumstances include:

"(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."

Here, the Crown had a strong case under these factors [par. 12]. However, following her review of the detention order, Justice Jill Copeland released the accused under strict house arrest conditions. In doing so, she considered two material changes in circumstances: new proposed sureties, and the current coronavirus outbreak [par. 5]. Indeed, "even if all four of the criteria are met, the court must consider all of the circumstances, including the proposed release plan" [par. 9, referring generally to St-Cloud, par. 37-88.]

The accused was proposing new sureties, which addressed a fear expressed by the justice of the peace that kept them detained, regarding the ability of the initial surety to supervise them [par. 7-8]. Justice Copeland held that the "new proposed plan of release is sufficient to address the tertiary ground" [par. 14].

That may have been sufficient to dispose of the review. However, she went on to provide guidance on an issue of larger importance. The current COVID-19 pandemic weighs on the result of this decision. That is because "all the circumstances" include the well-being of the accused [par. 16, referring to the mention at par. 71 of St-Cloud of the personal circumstances of the accused, including their physical or mental condition]. As such, "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." [par. 18]

As Justice Copeland explains, "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." [par. 19] Detention is almost an infection sentence, given the likelihood of contagion. More, it can easily become a death sentence, given that healthcare in jails is problematic.

She also "note[s] that this factor concerns not only [the accused'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." [par. 19] We would also add to the larger impact on society the boomerang effect of contamination cases in detention: the increased chances of contamination in the cramped conditions detainees are kept in make the guards, in turn, more susceptible to the virus. They then become vectors of contagion, by being a link between the highly infected inside and the at-risk outside. Keeping jails full during an outbreak makes our entire society more susceptible to succumb to the virus.

These personal and public health concerns are but a factor to be balanced against the others to determine public confidence in the administration of justice [par. 20]. Here, combined with the proposed release plan, they prevailed.

It would be easy to think of this decision as being limited to a narrow set of facts, i.e., when an accused is not a flight or recidivism risk (the primary and secondary grounds at s. 515(10)a) and b) C.C.), and as such when the decision between detention and release turns only on the tertiary ground. But that would be irresponsible.

This decision is a welcome recognition that keeping people detained, exposing them and the public to a deadly virus, can shock the conscience of the collectivity and bring the administration of justice into disrepute. There is no reason to limit this principle to s. 515(10)c) C.C. alone.

In the context of a pandemic, we should be detaining as few people as possible. That can be done, as here, by reviewing accused people's detention orders to release them. This is required for those who have been ordered detained before the outbreak. But the same arguments apply to bail hearings held during the pandemic, and also to sentencing hearings. The criminal justice system should do everything it can right now to not only release the already-incarcerated, but also to not grow their numbers by sending new people to jail. Hopefully, judges will look at Justice Copeland's reasoning and apply it in other contexts where they have the means to avoid putting the accused and the public at risk.

Léo Fugazza commented
See also, for an Australian case supporting a similar conclusion, Re Broes [2020] VSC 128 (19 March 2020), especially par. 35 ff.: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC//2020/128.html