R v JR (ONSC)
[April 20, 2020] Judicial Interim Release – Evidence – COVID-19 - 2020 ONSC 1938 [The Honourable Justice P.A. Schreck]
AUTHOR’S NOTE: Here, the accused brought an application for his detention to be reviewed pursuant to s. 525. The Crown was opposed to release on the secondary and tertiary grounds. When considering the tertiary ground, Justice Schreck determined that the statutory factors favour detention. However, as those factors are not exhaustive, Justice Schreck determined that the COVID-19 pandemic and the passage of time were also relevant factors to consider. Justice Schreck reviewed the affidavit of Dr. Aaron Orkin (filed by the Defence) and the “Response to COVID-19 Information Note” (filed by the Crown), finding the affidavit of Dr. Aaron Orkin persuasive. Justice Schreck further determined that an applicant is not required to adduce evidence that he is more susceptible to the disease than others. When considering all of the factors, Justice Schreck ordered the accused to be released on bail.
 J.R. is charged with a number of very serious firearms and drug offences. He has a lengthy criminal record and was detained following a bail hearing. Because he has been in custody for more than 90 days, he is entitled to have his detention reviewed pursuant to s. 525 of the Criminal Code.
 The applicant is charged with numerous firearms possession offences, discharging a firearm, possession of cocaine for the purpose of trafficking and possession of proceeds of crime. Because the applicant is yet to be tried and there has been an order made pursuant to s. 517(1) of the Criminal Code, I will not set out the allegations in detail. They are extremely grave. The applicant is alleged to have discharged a firearm in a public place while in a motor vehicle in circumstances where death or serious injury to another person was likely but fortunately did not occur. He is also alleged to have been in possession of a loaded prohibited firearm and several rounds of ammunition that were seized during the execution of a search warrant. Also seized were several grams of cocaine, a digital scale and a quantity of cash.
The Tertiary Ground
 Both counsel made extensive submissions about the strength of the prosecution's case which I will not discuss in detail because of the publication ban. There appear to be significant shortcomings in the Crown's case with respect to the allegation that the applicant discharged a firearm in public. However, the Crown's case with respect to the possession charges is, in my view, strong, although there are certainly triable issues.
 The remaining factors set out in s. 515(10)(c) all favour detention. The offences are very grave. The circumstances surrounding their commission involve the use of a firearm and endangerment of the public. If convicted, the applicant is liable to a very lengthy penitentiary sentence.
 However, as noted earlier, the factors set out in subsections (i) to (iv) are not exhaustive: R. v. St. Cloud, at paras. 66-71. In this case, there are two additional factors which, in my view, are relevant to the tertiary ground: (1) the COVID-19 pandemic; and (2) the passage of time.
Affidavit of Dr. Aaron Orkin
 On this application, the applicant filed an affidavit by Dr. Aaron Orkin, a physician and epidemiologist. Dr. Orkin's credentials are impressive. In addition to a medical degree, he holds a graduate degree in public health and is a doctoral candidate in clinical epidemiology. He practices emergency medicine at two Toronto hospitals and is the Medical Director of the St. Joseph's Health Centre COVID-19 Assessment Centre. He is also responsible for planning a COVID-19 response strategy for Inner City Health Associates, an organization which provides health services to people experiencing homelessness. He has authored and co-authored numerous peer-reviewed publications, including several relating to health care for individuals in prison. Dr. Orkin was not cross-examined and his evidence was not challenged by the respondent.
 In his affidavit, Dr. Orkin discusses COVID-19 outbreaks in what he refers to as "congregate living facilities", a public health care term that refers to settings where many people live together, such as long-term care facilities, homeless shelters, and correctional institutions. Dr. Orkin states:
Preventing outbreaks in congregate living facilities is a top priority for a flatten-the-curve strategy, for four reasons:
(1) First, outbreaks in tight spaces happen extremely quickly and are near-impossible to control once they occur. Global experiences with cruise ships are a case-in-point.
(2) Second, people living in congregate living facilities tend to have underlying comorbidities that make them more prone to serous adverse outcomes (ICU admission or death) from COVID-19. This is true in long-term care facilities, homeless shelters, and prisons.
(3) Third, outbreaks in congregate living facilities can overwhelm health care systems, meaning that scarce resources are consumed by local congregate living outbreaks before the epidemic takes hold in the general population.
(4) Fourth, outbreaks in congregate living facilities serve as tinder for the fire in more generalized outbreaks. Unlike cruise ships, people in congregate living settings including the staff who work there transfer disease into the general population.
Therefore, preventing disease in congregate living facilities is critical for flattening the curve across the entire population. All this means that protecting congregate living settings and preventing outbreaks there is about protecting the health of the entire population.
 In Dr. Orkin's view, the degree of physical distancing required to reduce COVID-19 transmission is simply not possible in a correctional institution because of the space constraints. As he puts it, "This is a geometry problem, not a policy or strategy problem." As a result, "it is extremely likely that a COVID-19 outbreak will occur in correctional facilities", which would put the health of inmates, the staff and the public at risk.
 Dr. Orkin recognizes that courts must take several considerations into account is determining whether an individual should be released, but states that from a public health perspective:
... [e]very person who is discharged from a correctional facility to a private residence is an opportunity to flatten the curve and improve health for the individual involved, other inmates in the facility in question, staff at the facility in question, and the public.
The "Response to COVID-19 Information Note"
 The respondent relies on a document entitled "Response to COVID-19 Information Note" (the "Information Note"). It is dated April 7, 2020 and the author is listed as being "Institutional Services Division, Assistant Deputy Minister's Office." While it is not apparent from the note, I assume that this refers to the Deputy Minister of the Ministry of the Solicitor General ("MSG"). I was advised during submissions that one of the authors of the document is a strategic advisor employed by the MSG who does not have a medical background. While the Crown has called this person as a witness during other proceedings, it did not do so before me. The identity and qualifications of the other author or authors was not disclosed to me.
 The Information Note states that "we are confident in the care we are providing our inmate population." It states that as of April 7, 2020, there were 6,096 inmates in custody at 25 Ontario institutions. Of those, 103 had been tested for COVID-19 and 63 had negative results, five had positive results, and results were pending for 38. Three of the positive cases were at the TSDC, where the applicant is incarcerated.
 The Information Note also states that two correctional staff members, one of whom worked at the TSDC, also tested positive. According to the Information Note, all positive cases were responded to "in accordance with operating procedures."
 The steps the MSG has taken in order to prevent the spread of COVID-19 include suspending personal visits for inmates (although visits from lawyers and spiritual volunteers continue), screening every staff member and inmate entering the institution and minimizing the number of court appearances and inmate transfers. Facilities are cleaned "regularly and/or as required." The extent to which these procedures have been successfully implemented is not discussed.
 The Information Note also states that a proper handwashing and cough and sneezing protocol has been communicated to all Ontario inmates and that all of them are provided with soap. This was contradicted by the applicant, who states in his affidavit that the TSDC has run out of soap and that inmates can only wash their hands with water or with shampoo from the shower when they have access to it. On this issue, I accept the evidence of the applicant over that contained in the Information Note, which does not identify the source of its information.
 Dr. Orkin reviewed the April 7, 2020 Information Note and earlier versions of it that had been used in other proceedings. He concluded that they do not affect or change his opinion.
 There are several reasons why I attach little weight to the Information Note. First, its authors are not identified. There is no indication as to what qualifications they have to express an opinion on the adequacy of the measures undertaken by the MSG to control the spread of COVID-19 or whether they are justified in being "confident in the care we are providing our inmate population."
 Second, I accept the evidence of Dr. Orkin, who stated:
COVID-19 is an absolutely unprecedented threat in Ontario's health history. This is no ordinary outbreak.
. . . . .
In my opinion, no expert public health or health care practitioner can be "confident" in the care we are providing to any population or sub-population in Ontario. This is equally true at the public health units, the emergency department, the prisons and homeless shelters, and in any place where health and confinement intersect. In my professional opinion, at this moment in history, an expression of bald "confidence" in the safety of a group living in a congregate setting suggests a serious deficiency of public health expertise.
40 Third, while counsel for the respondent relies on the fact that there are only five confirmed cases of COVID-19 out of 6,096 inmates, only 103 inmates, or less than two percent, have been tested. Of these, results are pending in 38 cases. This may not give an accurate picture about the prevalence of COVID-19 within correctional institutions, especially since some people who are infected with the virus show little or no symptoms.
41 Fourth, the information in the Information Note was a week old at the time of the hearing. Between March 29 and April 11, 2020, the rate of confirmed cases of COVID-19 in Canada doubled every five to eight days. This shows how quickly information about the rate of infections can become outdated. Indeed, it appears that since this application was argued, an Ontario correctional facility is being closed down because of a new COVID-19 outbreak in which at least three staff members and possibly a number of inmates have contracted the disease.
42 Fifth, for the reasons explained earlier, I reject the assertion in the Information Note that all inmates are provided with soap. This calls into question the reliability of some of the remaining information in the Information Note, which I am concerned may be more aspirational than factual.
43 I recognize that some courts have found comfort in the assurances provided by the Information Note, although I note that none of them had the benefit of Dr. Orkin's evidence: R. v. Jeyakanthan, 2020 ONSC 1984, at para. 31; R. v. Budlakoti,  O.J. No. 1352 (S.C.J.), at para. 14; R. v. Phuntsok, 2020 ONSC 2158, at paras. 26, 29. Respectfully, I do not share that view.
The Applicant's Health
 The Crown submits that there should be scepticism about the applicant's assertion that he has "severe asthma" because the letter from his physician, which is attached to his affidavit, simply refers to him having asthma and does not use the adjective "severe."
 While the applicant's physician's letter does not refer to his asthma as being severe, she does state that the applicant is "at increased risk of severe illness during the current COVID pandemic because of asthma." I accept that the applicant has a medical condition which places him at increased risk if he contracts COVID-19.
 In any event, for the reasons outlined earlier, reducing the inmate population does not only benefit the inmate being released but, rather, the community as a whole. It follows from this that in considering whether bail should be granted, the accused's health, while relevant, is by no means dispositive. I must respectfully disagree with decisions such as Jeyakanthan, at paras. 33-35; R. v. Nelson, 2020 ONSC 1728, at para. 41; and R. v. Brown,  O.J. No. 1432 (C.J.), at para. 59, which suggest that there is some type of onus on an applicant seeking release because of the risk of COVID-19 to adduce evidence that he is somehow more susceptible to the disease than others: C.J., at para. 9; Cain, at para. 11.
 For the foregoing reasons, the applicant was ordered released on a recognizance in the amount of $90,000 with four named sureties. Among other conditions, he is to remain in his residence at all times unless in the company of a surety, not to possess any weapons and is subject to electronic monitoring.
R v Hearns (ONSC)
[April 17, 2020] Sentencing – Time Served – COVID-19 - 2020 ONSC 2365 [The Honourable Justice Renee M. Pomerance]
AUTHOR’S NOTE: Here, the in-custody accused was sentenced after pleading guilty to aggravated assault. The Crown and Defence jointly proposed a sentence of time served (the equivalent of 33 months, 11 days) plus a term of probation. Justice Pomerance took judicial notice of the fact that inmates are at a greater risk of infection. Justice Pomerance also examined the impact of COVID-19 on sentencing principles, concluding that it affects our conception of the fitness of sentence. Consequently, Justice Pomerance agreed with the joint position and sentenced the accused to time-served and a period of probation.
 The accused, Robert Hearns has pleaded guilty to an aggravated assault of Haifa Gebrail. The offence is a serious one. The accused struck the victim in the head with a bat, fracturing her skull and lacerating her scalp. She required surgery and remained unconscious for several weeks. At the time of the incident, the accused had consumed crystal methamphetamine to which he was then addicted.
 I must determine the sentence to be imposed. I have concluded that a sentence of time served plus probation is appropriate having regard to several factors, including the global COVID-19 pandemic and the increased risk of infection faced by inmates in Canadian jails.
 The accused has served a substantial period of pre-sentence custody. He has served 667 real days in jail. With credit on a 1.5 to 1 basis, he has credit for a total of 1001 days (the equivalent of 33 months, 11 days)
 Counsel jointly propose a sentence of time served plus a term of probation. For the reasons to follow, I agree that this disposition is appropriate given the current social and medical context.
Judicial Notice of COVID-19
 The gravity of the crime committed by the accused, and his long criminal record call for a substantial term of incarceration. In normal circumstances, the period of pre-sentence custody, while significant, might be seen by some to fall short of reflecting the seriousness of the offence and moral blameworthiness of the offender. However, we are not presently in normal circumstances. At the time of this hearing, the COVID-19 pandemic is sweeping the globe. This was a factor leading to the joint position taken by counsel.
 The risk of infection is, by necessity, higher in custodial institutions, where conditions — cramped quarters, shared sleeping and dining facilities, lack of hygiene products — make it difficult, if not impossible, to implement social distancing and other protective measures. This is not to say that the virus is rampant in jails, or that government officials are not trying to protect inmates. It is only to say that, as a matter of logic and common sense, the risk of contracting the virus is higher in an environment where people are forced to habitually congregate with one another.
 There is no suggestion that Mr. Hearns has any enhanced vulnerability flowing from age or underlying medical conditions. This does not negate the concern. The virus does not discriminate. There are reports of otherwise healthy individuals succumbing to severe illness and, in some cases, death. We must assume that no one is immune from the disease or the full range of potential consequences.
 Fortified by these authorities, I take judicial notice of the fact that: we are experiencing a worldwide pandemic; that control of the pandemic requires that individuals practice social distancing; that social distancing is very difficult to maintain in custodial settings; that inmates are consequently at a greater risk of infection; and that the risk of COVID-19 in prison settings translates into an increased risk for the community at large.
Sentencing Principles and COVID-19
 How does all of this impact the fitness of sentence? Clearly, 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.
 The "specific circumstances of each case" would, in today's environment, include the ramifications of the current health crisis.
 In the current context, the issue is not state misconduct. No one is to blame for the pandemic. I accept that those in charge of jails are doing their best to control the spread of infection. Nor does the issue fall neatly into the category of collateral consequences. There is nothing collateral about the conditions of imprisonment — they are as direct a consequence as one can imagine. Yet, the impact of the pandemic is a matter that is extraneous to the pillars of proportionality — the gravity of the offence and the moral blameworthiness of the offender. The point to be taken is this: a sentence may be reduced where it is necessary to denounce state conduct, or where it is necessary to account for other punitive consequences, or where the sentence would have a more significant impact on an offender. In this case, the impact is not attributable to the characteristics of the offender, though in some cases there may be heightened vulnerability. The impact is attributable to the social conditions of the time, which are very different than those in the past. COVID-19 is not a mitigating factor in the classic sense. However, it adversely affects conditions of imprisonment, and increases health risks for those in jail. On that basis, it is an important part of the sentencing equation.
 I offer two caveats to this analysis.
 First, I am not suggesting that the offender receive more than the statutory credit for pre-sentence custody. The accused is entitled to credit on a 1.5 to 1 basis and that is what he will receive. I am not at liberty to assign credit beyond that prescribed in the Code. The question is not whether, looking backwards, the offender is entitled to more credit. The question is whether, looking forward, the pandemic warrants reduction of the sentence yet to be served. The question is whether the sentence already served, calculated with 1.5 to 1 credit, is a sufficient penalty. Given the pandemic, it may be that a sentence of shorter duration is not only tolerable, but appropriate, in the interests of personal and public safety.
 Second, I am not suggesting that the pandemic has generated a "get out of jail free" card. The consequences of a penalty — be they direct or collateral — cannot justify a sentence that is disproportionately lenient, or drastically outside of the sentencing range. It cannot turn an inappropriate sentence into an appropriate one or justify dispositions that would place the public at risk. See: R. v Day, 2020 NLPC 1319A00658 at para. 1. It is ultimately a question of balance. As noted by A.J. Goodman J. in R. v. T.K., 2020 ONSC 1935, at para. 74:
In summary, even in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in the various institutions, while at the same exercising the balancing required to sustain its fundamental role in the administration of justice and protection of the public.
 That balance is best informed by our collective approach to these issues. During these challenging times, people are being asked to call upon their sense of community, decency and humanity. That humanity must obviously extend to all individuals, including those incarcerated due to criminal charges or convictions. There will be cases where release from custody is not a viable option. There must be consideration of the safety of the community and the need for a proportionate sentence. Where, however, a period of time served can address sentencing principles, even imperfectly, our sense of humanity tells us that release from prison is a fit and appropriate response.
 On the basis of the above analysis, I find that the pre-sentence custody in this case is sufficient to warrant a time served disposition, followed by a term of three years probation. By ensuring a prolonged period of community supervision, the probation order reinforces the objective of protecting the public.
R v Shingoose (SKCA)
[April 17, 2020] Judicial Release Pending Appeal – Public Interest – COVID-19 - 2020 ONSC 2365 [The Honourable Justice Jackson]
AUTHOR’S NOTE: Here, the applicant sought bail pending his appeal pursuant to s. 679(1)(a). Justice Jackson determined that the appeal was not frivolous and that while Mr. Shingoose's criminal record raises public safety concerns, they were not sufficient to deny release on that ground alone. When considering the public confidence component, Justice Jackson concluded that the potential effect of COVID-19 on Mr. Shingoose's health meant that a reasonable member of the public would agree that his detention pending his appeal is not necessary in the public interest.
 John Shingoose was charged with operating a motor vehicle on December 2, 2016, while impaired by alcohol and causing bodily harm to Chelsey Whitehawk as a result, contrary to s. 255(2) of the Criminal Code. Ms. Whitehawk, who is a friend of the Shingoose family, was in a truck allegedly being driven by Mr. Shingoose when it left the road and became stuck in a ditch. At some point, when Ms. Whitehawk was out of the truck, whoever was driving it ran over her leg.
 Mr. Shingoose filed a notice of appeal from both conviction and sentence on March 11, 2020. On March 31, 2020, Mr. Shingoose applied for judicial interim release under s. 679(1)(a) of the Criminal Code pending the hearing of his appeal. It is this application that is before me. Mr. Shingoose does not apply for relief from the imposition of the driving prohibition.
 As part of his case for release, Mr. Shingoose submitted affidavit evidence regarding his medical condition and the impact of COVID-19 on prison facilities. The Crown has submitted affidavit evidence with respect to some of the actions the Ministry of Corrections and Policing has implemented to mitigate the risk of COVID-19 transmission within custodial facilities.
 On the question of public confidence in the administration of justice, in addition to the required factors, I have considered the evidence placed before me with respect to COVID-19. I accept that the Ministry of Corrections and Policing is taking a number of steps to protect the general inmate population. However, Mr. Shingoose presents a particular case.
 In Mr. Shingoose's case, I find on the basis of the evidence placed before me that he is particularly vulnerable to the risks posed by COVID-19 in the prison facility. He is 69 years old. He is diabetic and his condition appears to have worsened in custody. The evidence presented to me with respect to what is transpiring in the correctional facility does not specify any special care that is being taken in relation to Mr. Shingoose.
Public Interest and COVID-19
 As I have indicated, Mr. Shingoose was sentenced on February 13, 2020, before Saskatchewan's first case of COVID-19 and some considerable time before the first public health directive regarding social distancing was issued on March 17, 2020. The trial judge could not have been expected to take this factor into account. Put simply, when he was sentenced, Mr. Shingoose's compromised immune system was not an issue for the purposes of sentencing. The sentencing judge did not mention that aspect of the pre-sentence report that described Mr. Shingoose as diabetic and nor did he need to do so. He did, however, mention the impact that the residential school system has had on Mr. Shingoose and the link between that experience and his alcoholism. The sentencing judge also mentioned in his reasons that eight of Mr. Shingoose's siblings had died from alcohol related illnesses and two had died of complications from diabetes. What is significant about all of this for my purposes is that it cannot be said that Mr. Shingoose's present assertion of concerns about his health is of recent origin. What is recent is the link between his health and COVID-19 and its present importance for this application.
 I agree with Crown counsel that it is not necessary for me to receive Dr. Orkin's affidavit in order to take judicial notice of the pervasive threat of COVID-19 and its implications for someone like Mr. Shingoose in the prison setting. However, I do not agree that the Ministry reports presented to me eliminate all concerns in relation to COVID-19 as it could conceivably affect the public interest as regards Mr. Shingoose. I say this because nothing in these reports is directed to the specific issues that Mr. Shingoose presents. They are directed, and rightly so, to the protection of the inmate population as a whole.
 Specifically, from the appellate context, two decisions were presented to me: R v Myles, 2020 BCCA 105 [Myles], cited by the Crown, and R v Kazman, 2020 ONCA 251 [Kazman], cited by Mr. Shingoose.
 In my view, Myles is readily distinguishable from the facts in this case. In Myles, the appellant had not met the burden that he would surrender himself into custody in accordance with the terms of any release order - a point that the Crown has conceded has been met in Mr. Shingoose's case. Further, the appellant in Myles did not have a release plan that adequately addressed issues of public safety. Nonetheless, in addressing the appellant's concerns regarding COVID-19, Justice DeWitt-Van Oosten made these helpful observations:
 I am alive to the concerns surrounding COVID-19; however, I have received no information about the specific level of risk faced by Mr. Myles in his current circumstances, health vulnerabilities he may have, or steps taken by the custodial institution to mitigate the risk. As a result, I have no evidentiary foundation, particular to Mr. Myles, from which to make an informed assessment of the impact that this factor should appropriately, and realistically, have on the bail analysis in this case.
 In the application before me, counsel has presented me with evidence regarding Mr. Shingoose's health vulnerabilities and the generic steps taken by the custodial institution to mitigate the risk particular to him. Moreover, Crown counsel does not contest that Mr. Shingoose's continued detention, in light of his medical condition, places him at a higher risk of adverse consequences than the general inmate population, if he were to become infected by COVID-19.
 In that regard, I find Kazman to be of greater relevance to this application. In Kazman, the applicant for release, pending an appeal to the Supreme Court, provided evidence as to his age (64 years old) and his medical condition (he suffers from asthma, respiratory issues causing shortness of breath and a heart condition). According to the evidence, it was "crucial for him to minimize contact with others in order to avoid a serious illness and to reduce the spread of COVID-19, but it is impossible for the applicant to self-isolate in custody" (at para 8). In her analysis, Justice Harvison Young observed: …
 The similarities between Mr. Kazman and Mr. Shingoose are obvious: older applicants with underlying medical conditions and each having presented the Court with a proper release plan. It, however, must be noted that unlike Mr. Kazman, Mr. Shingoose does have a significant record that must be considered as I balance all of the factors.
 In this case, applying s. 679(3)(c) and s. 515(10)(c), as this clause is modified in the appellate context, including the potential effect of COVID-19 on Mr. Shingoose's health, a reasonable member of the public would agree that his detention pending his appeal is not necessary in the public interest. Any residual concerns about public safety can be overcome by his undertaking and the affidavits filed by his son and granddaughter.
 It is for these reasons I have concluded that Mr. Shingoose should be released from custody. I would make one change to the release order. A clause should be added to it requiring that once the transcript is prepared, Mr. Shingoose should undertake to file his factum within 60 days thereafter, unless otherwise ordered.
 The application for judicial interim release is allowed.