Sentencing In the Time of COVID (Part 1/2) - Caylene Foley

In March of 2020, the world was hit by a global COVID-19 pandemic. This pandemic has affected every aspect of human life. Freedoms were restricted to help reduce the spread of the virus; people began working from home; and life became virtual for many, including the Canadian judicial system. The whole world needed to pivot to learn how to live within this new reality. The COVID-19 pandemic forced the courts to pivot and change how they operated; moving from an in-person system to a hybrid system of call-in, virtual, and limited in-person sittings. The pandemic has materially impacted the administration of justice.[1] For a period of time, due to the closure of courts, sentencing hearings where an offender was facing incarceration were postponed. The focus of this article is on how COVID-19 has impacted sentencing in the Canadian judicial system. From research on COVID-19 and sentencing, the impact of COVID-19 on sentencing appears to be considered in three main ways: as a mitigating factor, an exceptional circumstance, and a collateral consequence.

Focusing on these three areas, this article will look at what sentencing judges have considered in regard to a fit and proper sentence, and how COVID-19 played a role in crafting such sentences. This article will examine how the COVID-19 virus impacted conditions in Canadian correctional facilities and whether sentencing judges used this information when crafting a sentence.

The global pandemic forced drastic changes in the way people live their lives. People were required to wear masks and social distance, limits were placed on how many people could gather, and, at the beginning of the pandemic, there were lockdowns to try and reduce the spread of the virus. For the past two years, the world has been navigating how to deal with this virus. In penal institutions, many measures such as social distancing, proper hygiene, and mask wearing were almost impossible to implement. In order to keep inmates safe and socially distanced, many institutions had to implement lockdown measures and two-week isolation periods for new inmates, as this was the only way to attempt to mitigate the spread of the virus in an institutional setting.[2] This created harsher conditions in institutions; an effect that sentencing judges generally heard nothing about prior to the pandemic and, therefore, did not consider when crafting a sentence. Certain variables in relation to the experience of imprisonment on the offender were not on a judge’s radar; now, due to the pandemic, they are.[3]

In this author’s opinion, COVID-19 has led to inconsistencies in sentencing. There does not appear to be a standard for which COVID-19 has been used when it comes to sentencing offenders in Canada. Courts across Canada have considered COVID-19 in many ways; the most common ways, in this author’s opinion, are as a collateral consequence, a mitigating factor, or as an exceptional circumstance. A collateral consequence is an outcome that impacts the offender in a manner that was not originally intended. A mitigating factor is something a sentencing judge can consider in sentencing an offender to lessen a sentence. Exceptional circumstances are situations that are beyond unusual and can be considered during sentencing to create sentences outside of the normal range.

None of these applications are correct on their own, as COVID-19 can fall into any of these categories. It falls into the exceptional circumstance category, as the virus and how it has impacted the entire world is beyond normal and very unique. COVID-19 could also be a mitigating factor when it comes to sentencing and trying to craft a just and fit sentence for a particular offender. COVID-19 can also be a collateral consequence, as it is a consequence that impacts the offender and the type of sentence they will serve. COVID-19 can correctly fall into any of these categories, which is why COVID-19 has been applied so differently across Canada; it really depends on the judge sentencing the offender and the jurisdiction they are in.

This article will first look at sentencing principles in general as set out in the Criminal Code of Canada (Code) at section 718. Next, I will examine how courts have defined and used each category as outlined above (collateral consequences, exceptional circumstances, and mitigating factors) when it comes to sentencing offenders during a global pandemic. Finally, this author will discuss how the COVID-19 pandemic has changed sentencing in Canada and has allowed judges more creativity in the sentencing process.

Sentencing Principles

Sentencing in Canada is an individualized process guided by the principles of sentencing codified in section 718 of the Criminal Code of Canada.[4] The fundamental purpose of sentencing includes:

(a) the denunciation of unlawful conduct,

(b) the deterrence of the offender and other individuals from committing offences,

(c) separating the offender from society where necessary,

(d) assisting in the rehabilitation of the offender,

(e) providing reparation for harm done to the victims or the community, and

(f) promoting a sense of responsibility in offenders and an acknowledgment of the harm done to victims or the community.[5]

The sentencing of an offender is not an exact science. It is not a mathematical equation, but rather it is an art.[6] The determination of a sentence that is just and appropriate in a given case is a highly individualized exercise that takes into account many factors.[7] Each sentence must be fashioned in such a manner as to take into account the circumstances of the offence, the circumstances of the offender, the moral blameworthiness of the offender, the principles of sentencing, and proportionality to the offence and the offender.[8] Mitigating and aggravating factors are part of sentencing considerations and can affect the sentence of the offender.[9] Sentencing judges across Canada have considered the COVID-19 pandemic when sentencing offenders. However, COVID-19 appears to be considered at different stages of sentencing depending on the jurisdiction in which the offender is being sentenced.[10]

Sentencing judges have wide discretion in sentencing offenders; this discretion is fettered partly by general sentencing ranges for particular offences and principles enshrined in the Code. These are guidelines and not hard and fast rules. A judge can order a sentence outside the general range as long as it is in accordance with the principles and objectives of sentencing. Regard must be given to all the circumstances of the offence, the offender, and the needs of the community when crafting a fit and proper sentence.[11] The law of sentencing in Canada is largely concerned with duration. Whether framed as starting points or sentencing ranges, the task of the sentencing judge in most serious cases is to identify an approximate number of months or years for a sentence range, given the nature of the offence and aggravating and mitigating factors particular to the case before them.[12]

COVID-19 in Sentences

The COVID-19 pandemic has impacted sentencing in Canada. A search on CANLII using the search parameters “COVID-19 and sentences” produced over 1900 cases in October 2021. For March of 2022, the number of cases that mention COVID-19 and sentencing climbed to 2422.[13] Upon reviewing some of these cases, it became apparent that COVID-19 is viewed differently depending on the jurisdiction and presiding judge.[14] Many cases reviewed were for offenders who served pretrial custody and were credited for time served at a 1.5 to 1 ratio. In some cases, more time-served credit was added due to COVID-19 and the related time spent locked down.[15] In sentencing offenders during COVID, it appears sentencing judges became more creative by sentencing offender to time-served for “close calls”; using suspended sentences without the usual “exceptional circumstances” and making more use of conditional sentences, where allowed to do so. Judges used information about COVID-19 to craft creative sentencing options, allowing for sentences that might not have been accepted pre-COVID-19.

The pandemic does not do away with the well-established statutory and common law principles. However, the pandemic may impact on the application of those principles. It may soften the requirement of parity with precedent. The current circumstances are without precedent. Until recently, courts were not concerned with the potential spread of a deadly pathogen in custodial institutions. COVID-19 also affects our conception of the fitness of sentence. Fitness is similar to proportionality, but not co-extensive with it. Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.”[16]

In general, sentencing principles are not disregarded, but how COVID-19 will affect the offender personally and their time incarcerated generally now seem to be part of the sentencing equation. A sentencing judge must not simply look at the length of a sentence, but also to the conditions under which it is served and what effect the sentence will have on the offender. In doing so, this allows the judge to assess whether the sentence would have a more significant impact on the offender because of their unique circumstances, such as health conditions in a pandemic.[17]

This can be seen in the sentencing of Mr. Stevens, an immune compromised inmate who served pre-trial detention. While in pre-trial detention, Mr. Stevens expressed that he was not given a mask or a face covering when he asked for one. He was told that masks or face coverings were only provided when necessary; necessary was never defined. The second explanation was that masks or face coverings were too expensive to provide.[18] In this case, the judge found that there needed to be transparency in COVID-19 numbers in jails. Furthermore, it was determined that PPE should be supplied to inmates to protect them and the general population from COVID-19. The sentencing judge found that COVID-19 was something that needed to be considered when imposing a sentence.[19] A suspended sentence was imposed, followed by probation after considering all the facts including the COVID-19 pandemic and the effect the pandemic could have on the offender; and individual who was immunocompromised and fearful for his health and safety if incarcerated during the pandemic.[20]

Sentencing judges are being asked to consider the potential risk offenders could face if incarcerated during this pandemic. To help assess the risk faced by an accused, Ontario courts have provided a list of factors to consider:

1. Recent reliable data regarding the general risk to the Canadian/Ontario/local population of being infected by COVID-19 and the related risk of serious illness/death.

2. The specific risk of an accused due to his/her age and underlying medical conditions.

3. The specific risk of an accused in a particular institution.

4. Any medical evidence particular to an accused’s physical and/or mental health.[21]

Over the last twenty-five months, there appears to have been a slight shift when it comes to sentences judges are imposing on offenders.[22] Judges, while still following sentencing principles, now have to take into consideration something they did not have to consider before: how an extremely infectious virus impacts the conditions of correctional institutions and what this means in relation to an offender’s sentence. Sentencing judges have been taking into account the effect that COVID-19 is having not only on the community at large, but also in corrections systems where social distancing is very difficult to maintain and inmates are at a greater risk of infection.[23] Infections in prisons add to the risk of infection in the greater community.[24] Trying to stop the spread of COVID-19 in prisons, however, has led to harsher sentences compared to pre-COVID sentencing due to greater restrictions on inmates.[25] Due to these perceived harsher conditions, some sentencing judges have taken a more “robust judicial approach or appreciation of remand in the time of COVID-19”; that if an offender has served a significant amount of time in remand, the offender be released with a sentence equal to the credited remand time.[26] If a just and fit sentence is close to the time served by the offender in pre-trial detention, judges are sentencing them to time served.[27] There appears to have been a move towards decreasing the inmate population during the pandemic by releasing offenders with creative sentences that avoid incarceration.[28]

When an offender is sentenced to incarceration or remanded in custody, they must go through a 14-day isolation period.[29] This process was done in hopes of lessening the spread of the virus in correctional facilities. The practice, however, could be viewed as making custody harsh and should be considered by a judge when making a just and fit sentence. When considering the impact of COVID-19 on sentencing, can judges take judicial notice or is evidence, such as medical evidence, needed?

Judicial Notice vs Medical Evidence

Judicial notice refers to the acceptance of a matter of fact or law by the court without the necessity of formal proof in the form of evidence adduced by one of the parties.[30]Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. It is the only exception to the general rule that cases must be decided on the evidence presented by parties in open court.[31] Facts that are judicially noticed are not proved by evidence under oath; nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict. A court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy.[32] The essential basis for taking judicial notice is that the fact involved is of a class that is generally known such that it gives rise to the presumption that all reasonably intelligent persons are aware of it.[33] The question becomes: does COVID-19 pass the strict threshold that judicial notice can be taken; not just of the virus itself, but the impact the virus has on sentencing and an offender’s time in custody?

It can be argued that COVID-19 in the past two years is notorious or generally accepted (its existence anyway), but there is debate among reasonable persons about COVID-19 and how to best live with the virus; topics include getting vaccinated and the wearing of a mask. COVID-19 is also not supported by immediate and accurate sources of indisputable accuracy; this is because the virus is still relatively new and our understanding of it is continually evolving. Judicial notice has been taken of the existence and transmission of COVID-19.[34] The question is, should judicial notice be taken in considering how COVID-19 has affected prisons in Canada?

Judicial notice is hard to take in regard to correctional facilities, where there are conflicting reports about the effect COVID-19 has had on prisons. Some reports have claimed that 87% of prison populations are infected with COVID-19, while other reports say that COVID-19 infections in prisons are similar to that in the general Canadian population (much lower than 87%).[35] There is a lack of data when it comes to COVID-19 in prisons.[36] However, is the little information that is available enough to establish a judge’s ability to take judicial notice of these conditions?

The information available about COVID-19 changes as more is discovered and learned about this virus and the impact it has on people around the globe. In R v Baidwan, caution was stressed against the use of judicial notice in the COVID-19 context given the doctrine’s strict threshold and “general lack of accepted facts, as this was a new and very fluid crisis.”[37] Was that Ontario court right? With this ever-evolving knowledge of COVID-19, should judicial notice not be taken, as it does not pass the test? Or is the approach in Barry Matthews correct where it was stated that “judicial notice has been taken that the presence of COVID-19 worldwide and the prevalence of it in the prison population is a collateral factor that must be considered in fashioning a fit and just sentence.”[38] Or, is it more appropriate for a sentencing judge to have evidence introduced that illustrates for a particular offender how COVID-19 would affect them personally?

The Ontario Court of Appeal stated, “it will not be inappropriate for judges to take judicial notice of the COVID-19 pandemic, its impact on Canadians generally and the current state of the medical knowledge of the virus, including its mode of transmission.”[39] Other courts have asked for medical evidence that demonstrates that the defendant’s health concerns are real, significant, and that a sentence would result in the defendant being at higher risk for contracting COVID-19 or suffering more serious consequences.[40] Sentencing judges cannot seem to agree on whether judicial notice can or cannot be taken. There needs to be some clear rule established about whether or not COVID-19 can be judicially noticed or if medical evidence is required, as there is too much confusion currently; even the same provincial courts cannot agree on how to view COVID-19.

This author submits that a sentencing judge should be able to take judicial notice of the COVID-19 virus and the impact it could have on offenders who are serving a sentence during this pandemic. A reasonably informed person knows that COVID-19 is highly contagious and spreads rapidly, especially in situations where physical distancing is impossible to maintain. Medical evidence can be introduced to help a sentencing judge understand the likely impact on an offender if they were to serve a custodial sentence, but such evidence should not be a requirement. COVID-19 should pass the strict requirements of judicial notice even though our knowledge of the virus is still evolving. It is well known that the virus exists and that it spreads easily; common sense dictates that in an institutional setting where physical distancing cannot be maintained, the virus could spread rapidly. Persons in prison; jails; or other detention facilities, including inmates and staff, are at heightened risk for person-to-person transmission of various diseases (including COVID-19) because of the compulsory enclosed environment.[41] The inmate population, in general, is more vulnerable due to their overall health tending to be worse than the general population, making them a particularly vulnerable population given the current pandemic.[42]

Continued in Part 2.

[1] R v Bains, 2022 ONCJ 16 at para 24 [Bains]. [2] Terry Skolnik, “Criminal Law During (and After) COVID-19” (2020) 43:4 Man LJ 145 at 165. [3] Chris Rudnicki, “Confronting the Experience of Imprisonment in Sentencing: Lessons from the COVID-19 Jurisprudence” (2021) 99: 3 Can Bar J 469 at 473. [4] Criminal Code, RSC 1985, c C-46, s 718 [Code]. [5] Ibid. [6] R v Young, 2021 BCPC 6 at para 111 [Young]. [7] R v Rusk, 2021 ONCJ 343 at para 125 [Rusk]. [8] Young, supra note 6 at para 111. [9] R v Holmgren, [1995] OJ No 286 (Ont Gen Div) at para 56. [10] When considered as an exceptional circumstance, reduced for time served credit, as a collateral consequence. See cases below for examples. [11] R v Nasoguluak, 2010 SCC 6 at para 44. [12] Rudnicki, supra note 3 at 472. [13] CanLII search conducted on October 22 produced over 1900 hits with 1755 of those cases addressing COVID-19. [14] R v Stevens, 2020 ONCJ 616 [Stevens]; see R v Lemmen, 2020 BCPC 67 [Lemmen]; see Young, supra note 6. [15] Skolnik, supra note 2 at 174; see also footnote 179. [16] R v Hearns, 2020 ONSC 2365 at paras 15-16 [Hearns]. [17] R v Barry Matthews, 2020 ONSC 5459 at para 44 [Barry]. [18] Stevens, supra note 14 at paras 50-51. [19] Ibid at para 53; the accused in this case got a suspended sentence with probation. [20] Ibid at para 67. [21] R v Hannaford, 2020 ONSC 3665 at para 39 [Hannaford]. [22] This is a personal observation from a review of current case law looked into. More empirical studies would need to be done to see if there is any accuracy to this statement. The current sample looked at, without a control group of variables, makes this a personal thought, not an accurate statement of facts. However, it could be an interesting avenue to pursue in the future to see the true extent the COVID-19 pandemic had on sentences in Canada as compared to pre-pandemic sentences, and to see if there was a shift in sentencing; see also Skolnik, supra note 2. [23] Young, supra note 6 at para 59; see R v Pangon, 2020 NUCJ 30 at para 2 [Pangon]. [24] Pangon, supra note 23 at para 2. [25] Ibid at para 3. [26] Ibid at para 7. [27] Ibid at para 7; see R v Parasmothy, 2020 ONSC 2314 at para 140 [Parasmothy]. [28] Parasmothy, supra note 27 at para 140. [29] Pangon, supra note 23 at para 81; see also Skolnik, supra note 2. [30] Allan R Flanz, “Judicial Notice” (1980) 18:3 Alta L Rev 471. [31] David M Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020) at 573 [Paciocco]. [32] R v Find, 2001 SCC 32 at para 48. [33] "Weighing Evidence - Chapter 10: Judicial notice and specialized knowledge”, online: Immigration and Refugee Board of Canada <irb.gc.ca/en/legal-policy/legal-concepts/Pages/EvidPreu10.aspx>. [34]Barry, supra note 17 at para 51. [35]Louis Plottel, “Uncovering the impact of COVID-19 in Canadian prisons” (25 February 2021), online: CTN <hivnet.ubc.ca/news/2021/02/determining-the-impact-of-covid-19-in-canadian-prisons>. [36] Ibid. [37] R v Baidwan, 2020 ONSC 2349 at paras 41-44 [Baidwan]. [38] Barry, supra note 17 at para 51. [39] R v Morgan, 2020 ONCA 279 at para 8. [40] R v Dakin, 2020 ONCJ 202 at para 32 [Dakin]. [41] R v KTS, 2020 ONSC 2672 at para 71 [KTS]; from the World Health Organization. [42] Skolnik, supra note 2 at 166; footnote 132.