Bail in the COVID-19 Era - Kay Greene
In the new era of COVID-19, society has undergone many changes in its day-to-day operations. Some of these changes will disappear as society eagerly awaits a return to our ‘old’ normal. However, a number of these changes will stick around long after the COVID-19 era, such as the influx of businesses opting for a ‘work from home’ environment. One aspect of society that has had to undergo numerous COVID-related changes is the criminal justice system, particularly, the bail system.
It is no secret that jails across Canada were strapped for space long before COVID-19 made its way to Canada. The denial of bail is a contributing factor to the overcrowding within these facilities, as each time someone’s bail is denied that is one more person in custody awaiting a resolution of their case. Due to its crowded nature, jails have become a breathing ground for the spread of COVID-19, as demonstrated in Manitoba with COVID-19 rapidly spreading through correctional facilities across the province. Jails provide little to no opportunity to socially distance or self-isolate; this has without a doubt left many of those in custody fearful of potential exposure. One way to attempt to combat the spread of COVID-19 through jails, and reduce the overcrowding, is by granting bail and bail review applications, allowing many to serve their pre-trial time safely outside of a facility.
As noted by Justice Andrew Goodman, and many other players within the criminal justice system, COVID-19 is not a “get out of jail free card.” However, COVID-19 has become a compelling factor in the bail consideration process. As set out in R v St-Cloud, upon a bail review application under s. 520 or s. 521 of the Criminal Code, “ the reviewing judge may vary the initial decision if [the] evidence shows a material and relevant change in the circumstances of the case.” It seems likely that one could assume that when first declaring a ‘material change’ as a factor in the bail review process, a worldwide pandemic was not on everyone’s mind as a potential material change, but here we are. Since the onset of COVID-19, there has been an influx of bail review applications requesting bail be granted because of a material change in circumstance.
One of the first cases to deal with a bail review application on the grounds of COVID-19 was R v J.S. In J.S. it was found that COVID-19 did in fact constitute a material change in circumstance under a bail review application. In coming to this conclusion Justice Copeland stated “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 light of the other factors of the case. This determination in J.S. has been considered in a number of cases across Canada as the pandemic continues to spread rapidly across the country, and where the importance of social distancing is being realized more and more each day.
As COVID-19 has been a key player in granting bail review applications, it has also played a key role in re-defining the tertiary grounds for pre-trial detention under s. 515(10)(c) of the Criminal Code. As stated under s. 515(10)(c), “the detention of an accused in custody is justified … 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 … and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment … .” Set out in R v St-Cloud the four listed factors under s. 515(10)(c) are not the only factors to be considered under tertiary grounds, they are “simply the main factors to be balanced by the justice, together with any other relevant factors, in determining whether ... detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice.” Prior to COVID-19, in analyzing the public’s confidence in the administration of justice little regard was given to the impact of pre-trial detention on the defendant.
However, now in the midst of the COVID-19 era, the circumstances considered in analyzing the tertiary ground for pre-trial detention have been changing. In reviewing tertiary grounds for detention, it is now taken into consideration “whether a reasonable member of the community, aware of the imminent threat that COVID-19 poses to the health of inmates and staff in our detention centres, would lose confidence in the administration of justice if the accused was detained, even where the other factors favour detention.” This approach demonstrates that in the eyes of the public it would be a miscarriage of justice to unnecessarily subject a person to potential COVID-19 exposure, by subjecting them to the cramped quarters of our overcrowded jails. The impact of awaiting trial while in custody is increasingly receiving more consideration than ever before.
Taking into consideration the impact of pre-trial detention, with the onset of COVID-19, on the defendants, the result has been that more bails are being granted and more and more defendants are awaiting their trials from the safety of their homes. As of yet, there have been no reports of a grave danger caused by the increase in defendants awaiting their trials out in the community, with set restrictions, rather than in custody. This begs the question as to whether, in a post-COVID-19 world, the interests of the defendants should remain a key factor in the bail process. Not only would this help to combat the overcrowding plaguing our jails it would also ensure “pre-trial custody was truly a last resort.”
1 Ryan Flanagan, “Canadian courts are granting bail to some accused criminals because of COVID-19”, CTV News (08 April 2020), online: [perma.cc/D8HZ-GM4L].
2 R v St-Cloud,  2 SCR 328 at para 121.
3 R v J.S.,  OJ No 1206, 2020 CarswellOnt 3993 at para 18 [J.S.].
4 Criminal Code, RSC 1985, c C-46, s 515(10)(c).
5 R v St-Cloud,  2 SCR 328 at para 69.
6 Terry Skolnik, “Criminal Law During (and After) COVID-19” (2020) 43:4 Man LJ at 171 (WL).
7 Lisa Kerr & Kristy-Anne Dube, “Adjudicating the Risks of Confinement: Bail and Sentencing During COVID-19” (2020) 64 CR-ART 311 at 313 (WL).
8 Terry Skolnik, “Criminal Law During (and After) COVID-19” (2020) 43:4 Man LJ 145 at 173 (WL).