Judicial Interim Release in the COVID-19 Era

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Concerns over Canadian correctional facilities have been voiced since the state of emergency was first called in March 2020.  The Government of Canada’s website states that as of February 14, 2021 there was 35,984 active cases and a total of 825,785 documented cases since the pandemic began. With over 38,500 prisoners under its care, the Government of Canada has been called upon to improve health conditions in prisons to protect the health of vulnerable prisoners.

Correctional Services Canada (“CSC”) has implemented several methods to protect the health of both inmates and staff. CSC has suspended visits – cutting off important connections to prevent large outbreaks in its facilities. In response, CSC has waived telephone charges to facilitate connection with family, friends and support networks. (see what else Correctional Services Canada has been working on throughout the pandemic – https://www.csc-scc.gc.ca/001/006/092/001006-1017-en.pdf)

COVID-19 has impacted those incarcerated in other ways including their ability to be released from custody when appealing a prison sentence. Pursuant to subsection 679(1) of the Criminal Code, judges may release a prisoner pending the determination of the prisoner’s appeal. Judicial interim release pending appeal from a conviction has been addressed on two occasions by the Saskatchewan Court of Appeal. Following the recent decisions in R v Shingoose (2020 SKCA 45) and R v Bear (2020 SKCA 47), it now appears COVID-19 can serve as a reason for releasing a prisoner pending his or her appeal – but COVID-19 isn’t the “get out of jail free card” it appears to be.

Shingoose, 69 and in poor health, had been convicted of causing bodily harm while drunk driving, but soon after appealed his sentence. He asked to be released from prison and stay at his farm while waiting for his appeal to be heard. Pursuant to subsection 679(3) of the Criminal Code, judges must consider three things before releasing an individual from custody: the appeal cannot be “frivolous”; the court must be satisfied the individual will surrender himself into custody when required; and, it is not in the public’s best interest to have the individual remain in custody. The Court of Appeal was satisfied of all three requirements and found Shingoose’s vulnerability to the health risk posed by COVID-19 while in the prison facility demanded his release.

An individual will not always be released from correctional facilities because of the risks posed by COVID-19. It was Shingoose’s poor health and, most importantly, his short and less serious offence that supported the finding that it was not within the public’s best interest for him to remain in custody while awaiting his appeal. The Saskatchewan Court of Appeal has decided differently in cases where the individual poses a significant public safety risk due to the seriousness of his or her offence. Bear, 41 and in overall good health, was denied his request for judicial interim release pending appeal from conviction. The fear COVID-19 would affect his family was viewed as a less pressing reason than the health risks in Shingoose. Most importantly, Bear had been convicted for sexual assault which is a serious offence. The Court of Appeal stated the seriousness of his offence meant it was actually in the public’s best interest to have the individual remain in custody.

The risks posed by COVID-19 appear to constitute a material factor in the consideration of a prisoner’s application for judicial interim release pending appeal from conviction. The Court of Appeal has considered the effects of COVID-19 when determining whether or not it is within the public’s interest for a prisoner to remain in custody and in doing so has upheld prisoners’ rights to life and security of person. The risks posed by COVID-19, however, are simply one factor in the overall analysis. The ultimate decision is always grounded in sections 679(1) and 679(3) of the Criminal Code, meaning COVID-19 hasn’t necessarily given prisoners the freedom it appears to have given.



This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.