Is COVID-19 taken into account when it comes to sentencing? Well, it depends. This is because courts throughout Canada have taken different approaches to considering COVID-19 in their sentencing decisions.
Some courts, adopting a strict approach, have been willing to take the pandemic into account only when provided with “an evidentiary basis supporting the impact COVID-19 may have on an individual” . Under this strict approach, if an individual is concerned that they might be negatively impacted by the pandemic during an anticipated period of incarceration, it is up to them to convince the court that their concern is justified. Presumably, the court would be looking for concrete evidence to suggest, among other things, that there is a real risk of COVID-19 entering nearby federal or provincial prisons. Other courts, adopting a lenient approach, have been willing to take judicial notice of the “heightened risk for people housed in jails” . Under this lenient approach, courts will automatically factor COVID-19 into their sentencing decisions.
Earlier this month (March 2021), in R. v. Fairrae, the Nova Scotia Provincial Court endorsed the lenient approach, stating that any decision relating to sentencing “must surely include the reality of a pandemic” . Given this reality, individuals awaiting sentencing will be under no obligation to present “evidence of any particular hardship in the case of COVID-19 and the new variants” . In other words, courts are to automatically consider COVID-19 when it comes to sentencing.
In justifying its decision to adopt the lenient approach, the Court placed considerable emphasis on the fact that a surge in COVID-19 variants will continue to pose a distinct risk to those residing in prisons until vaccinations are distributed en masse . Moreover, if an outbreak were to occur in a prison, those potentially exposed to COVID-19 or its variants would include not only inmates, but also staff members and the families they go home to each night . The Court thus concluded that, in the “interest of personal and public safety,” COVID-19 should factor into decisions relating to sentencing .
What is the significance of the Court’s decision to endorse the lenient approach? To put it simply, “[t]aking the pandemic into account may result in a shorter sentence” . This seems to have been the actual result in Fairrae. After sentencing the defendant to 220 days of incarceration, the Court explained that this 8-month sentence represented “less than the amount of time [the defendant] could have expected in non-pandemic times” .
In light of the Fairrae decision, defendants in Nova Scotia may have an easier time arguing for reduced sentences on the basis of COVID-19 (at least until vaccinations are completely distributed). However, it must be kept in mind that the pandemic does not guarantee a shorter sentence. Courts are still required to balance a variety of factors, in addition to COVID-19, when deciding on a “fit and proper” sentence for a particular defendant .
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC
 Ibid at para 51.
 Ibid at para 52.
 Ibid at paras 54, 65.
 Ibid at para 65.