Finding Justice in Sentencing during the Pandemic

Henry Hagnäs from Turku, Finland, CC BY 2.0 , via Wikimedia CommonsHenry Hagnäs from Turku, Finland, CC BY 2.0 , via Wikimedia Commons

Ontario prisons are places of forced congregation, cramped quarters and shared facilities. Add COVID-19 and these living conditions are not only unpleasant but have become a threat to the health of prisoners and society at large.

Ontario judges have been taking into account these conditions in determining appropriate sentences for offenders. This was the case in a recent decision of Justice Pomerance of the Ontario Superior Court of Justice.[1] The case was one involving aggravated assault by an accused person with a substantial criminal record.[2] Justice Pomerance took judicial notice of the pandemic and consideration of health weighed heavily in the sentencing decision – which was to limit the sentence to one of time already served plus probation.[3]

In the judgment, the court reviewed recent Ontario cases that considered the pandemic in sentencing. In R v JS, the court considered the unique health circumstances of the accused, as well as the potential impact on hospital resources if a prison outbreak occurred.[4] In R v Rajan, the court took note of the inherent danger for all in prison settings.[5] In R v TL the court stated that custodial sentences should only be imposed out of necessity and when there are no other options.[6] In R v Kandhai, the court granted early release due to the drastic increase in hardship in jail during the pandemic.[7] And in R v Kazman, the Ontario Court of Appeal took into account the accused’s health conditions, his age, as well as how his custodial sentence would impact society at-large.[8] Ontario courts are therefore considering the pandemic in deciding appropriate jail time. As the court stated in Kandhai, “the [pandemic]…is bound to increase day to day hardship in prison and the general risk to the welfare of prison inmates.”[9] A jail is a “state mandated congregation of people” – a forced gathering, in a time where the entire country is being told to stay at home.[10]

However, not only has the pandemic factored in the sentencing decision in these particular cases, Justice Pomerance in Hearns tells us how the pandemic is also impacting sentencing principles more broadly. In Hearns, the court notes how the pandemic may “soften the requirement of parity”.[11] Parity is one of several sentencing principles in the Criminal Code which says that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.[12] The court in Hearns also noted the effect of the pandemic on the fitness of the sentence.[13] Whether a particular sentence is “fit” for the offender and the crime will depend on the length of the sentence and the conditions under which it is served.[14] Consideration of the harsher prison conditions caused by the pandemic could therefore call for a sentence that departs from the usual range.

This is exactly what happened in the recent Ontario case of R v Forrestall.[15] In June 2020, a young woman was driving to her babysitting job in the morning.[16] Along her route, her vehicle struck a 55-year-old man from behind who was enjoying a morning bike ride.[17] He succumbed to his significant injuries almost immediately.[18] Forrestall knew she had struck a person – nevertheless, “she did not stop and remain at the scene nor offer any assistance”.[19] Throughout the day, she relayed a concocted story about how her vehicle had been hit by a truck in a Tim Horton’s parking lot to her mother, employer, insurance company and later the police.[20]

When it came to deciding her sentence, the unique circumstances of the pandemic weighed heavily. Ms. Forrestall had asthma, placing her in a “higher risk category for COVID-19 infection”.[21] Given that social distancing in jail is “largely impossible”, the court determined that a fit sentence would be 12 months custody at home.[22] She will spend the first six months living under strict house arrest, and the remaining six months she will live under house arrest with a curfew from 9:00pm to 6:00am. She will be permitted to drive again after three years.[23] The victim’s family was outraged by the sentence, which they feel is unfair.[24]

And they have a point. Over the last 12 months, almost all Canadians have been ordered by the government to stay home. Canadians everywhere have suffered lockdown measures and only left the house for the necessities of life. Forrestall’s sentence is only a slightly stricter version of this. Forrestall’s health conditions place her in a higher-risk category, making prison a more dangerous place for her than other inmates without health concerns. However, it begs the question whether house arrest is an appropriate alternative. Hit-and-runs are devastating, and both families involved have been impacted forever. Is a sentence of home arrest enough of a deterrent?

Courts across Canada have been considering this question. Another PBSC student wrote an engaging piece stemming from a British Columbia court about the same issue. Time in jail is clearly a risk to health. But is a sentence at home the appropriate alternative?

 

[1] R v Hearns, 2020 ONSC 2365, 2021 CarswellOnt 5089.

[2] Ibid, at 4.

[3] Ibid, at 2.

[4] R v JS, 2020 ONSC 1710, at 19.

[5] R v Rajan, 2020 ONSC 2118 at 55 and 56.

[6] R v TL, 2020 ONSC 1885, at 36.

[7] R v Kandhai, 2020 ONSC 1611, at 7.

[8] R v Kazman, 2020 ONCA 251

[9] Supra note 7, at 7.

[10] Ibid.

[11] Supra note 1, at 15.

[12] Criminal Code, RSC 1985, c C-46, s718.2(b).

[13] Supra note 1, at 16.

[14] Ibid.

[15] R v Forrestall, 2021 ONCJ 121, 2021 CarswellOnt 2920.

[16] Ibid, at 4.

[17] Ibid, at 5.

[18] Ibid, at 5.

[19] Ibid, at 7.

[20] Ibid, at 9-11.

[21] Ibid, at 67.

[22] Ibid, at 70.

[23] Ibid, at 70.

[24] Catherine McDonald, “Woman sentenced to house arrest for fatal hit-and-run of Markham cyclist”, (March 4, 2021) Global News online: https://globalnews.ca/news/7676500/alexandra-forrestall-markham-cyclist-death-safet-tairowksi/

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