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Imprisonment during the Covid-19 Pandemic

By: Alberta Legal Team

Impacts of the Covid-19 Pandemic on Imprisonment

How has the Covid-19 pandemic impacted offenders who are imprisoned during the pandemic? The pandemic has impacted offenders imprisoned during the pandemic. Provincial Health Orders require physical distancing of a least two metres because of the sheer impossibility of this requirement, many incarcerated individuals have been put a form of solitary confinement for quarantine purposes. The other impacts have included:

• No family or professional visitation;
• Increased lockdowns;
• Restricted access to legal counsel and family by phone;
• Lack of programming for substance abuse, housing and counselling; and
• Limited access to religious services.

While many of these restrictions are being reduced due to the current stage of the pandemic, the impacts on incarcerated individuals have had immeasurable effects.

What Can a Lawyer Do For an Inmate Imprisoned During the Pandemic?

What can be done legally for inmates who have been incarcerated during the Covid-19 pandemic? Your criminal lawyers in Calgary can and should ensure an application is made for enhanced credit for any pre-trial detention time. Enhanced credit pursuant to section 719(3.1) of the Criminal Code allows courts to grant up to 1.5 times the time served in custody so long as “the circumstances justify it”. The individual who applies for enhanced credit must establish that the circumstances justify the enhanced credit on a balance of probabilities. There are two main rationales for granting enhanced credit. The first is that since an incarcerated individual will be eligible for earned remission once he or she is sentenced. If the person serves at a provincial facility, then they will only serve approximately two-thirds of the actual sentence. The rationale for enhanced credit with respect to earned remission is that the sentence should be the same amount regardless of whether it is pre-trial detention or post-conviction. The second reasoning for enhanced credit takes into account the fact that detention centres (remand facilities) cannot or do not provide any type of programming for education, training or rehabilitation.

A commonly asked question we get is whether we can ask for enhanced credit beyond the 1.5 days currently outlined. Unfortunately, the answer is no. Historically, enhanced credit could be much greater sometimes 3 days for every one day served. The law has changed and has prohibited enhancement beyond 1.5 days credit.

Another commonly asked question is about mitigating factors and whether the impacts of the pandemic can be viewed as mitigating. Mitigating factors work to drive sentences (criminal penalties) down. Aggravating factors work to increase or drive sentences up. A recent case from the Alberta Court of Appeal, R v McDonald, 2021 ABCA 262 considered the mitigating effects of the harsh protocols in place due to the Covid-19 pandemic. The Court of Appeal considered the mitigating effects of imprisonment during the pandemic and said:

[31]  Due to COVID-19 protocols, Mr McDonald spent a full month in quarantine (which involved 23-hour-a-day lockup). He was then moved to a different remand facility and placed in quarantine for a further month, although the extent of his lockup on this occasion is unclear. The second quarantine prevented him from being able to attend his originally scheduled trial date two months prior to his guilty plea.

[32]  Mr McDonald draws on the decision of R v Gordey, 2020 ABQB 425 [Gordey], in support of his submission that harsh pre-trial conditions resulting from COVID-19 protocols may be considered mitigating. Gordey is easily distinguishable. The robust evidentiary record in that case (including viva voce evidence about specific hardship) is absent here.

[33]  A further comment must be made. Typically, the decision to award enhanced remand credit beyond the statutorily prescribed 1.5 to 1 is grounded in a proven Charter breach. In Gordey, the sentencing judge dismissed the Charter breach and determined he was therefore precluded from granting further enhanced credit. The judge proceeded, however, to address the matter indirectly, by reducing the total sentence, in light of the “mitigating circumstances” surrounding the COVID-19 protocols. The question of whether a sentencing judge retains residual discretion to provide enhanced credit, directly or indirectly, for harsh remand conditions absent a proven Charter breach is best left for another day. The fact remains that the evidentiary record in Gordey and the present case are vastly different. Here, little more was said than a passing reference to COVID-19 and resulting periods of quarantine. The most generous interpretation of Gordey does not stand for the proposition that a blanket reference to Covid-19 protocols will affect sentencing.

What the Court of Appeal is stating here is that while the harsh protocols may impact sentencing, sentencing judges do not have “blanket” discretion to reduce a sentence. There must be an evidentiary basis or a Charter violation so that the Court may provide another remedy.

This means that your lawyer can argue for a sentence reduction based on a successful application and finding of a Charter breach. Section 12 of the Charter states that “everyone has the right not to be subject to cruel and unusual punishment” The Court of Appeal decision form R v Adams, 2019 ABCA 149 is informative on this basis. The accused argued his time in the Edmonton Remand Centre was “qualitatively more harsh than would ordinarily be expected”. The Court upheld the decision that the accused’s section 12 rights had been violated. The remedy was a reduction in the sentence to account for the violation. In order to be eligible for a sentence reduction under section 24 (1) of the Charter, an accused must bring proper notice of their intention pursuant to the Constitutional Notice Regulation, which requires that a written application be made in accordance with the timelines set out in the Rules of Court before the sentencing hearing. It is a two-part test, first the trial judge must conclude there is a violation of the section 12 right. The second part of the test is that the remedy pursuant to section 24(1) is the appropriate and just remedy.

Other Information – How Your Lawyer Should Help You

The lawyers at Alberta Legal defend serious allegations in court every single day. If you are being sentenced during the Covid-19 pandemic it is important to discuss with your lawyer what impacts the current protocols that are in place will have on your anticipated sentencing. Your lawyer can collect information that will help strategically build a case to argue that your time in custody was subject to cruel and unusual punishment or alternatively that the mitigating factors that must be considered in order to reduce your overall sentence.

Contact Alberta Legal for serious lawyers who defend serious allegations every single day.