A few months ago, stories began appearing in the news about the influx of criminals being released due to the possible spread of the COVID-19 in correctional institutions. Concern and fear were expressed that violent offenders would be roaming the streets with the unfettered ability to commit more crimes. From these stories, it would seem that veritable bogeymen are now free to do whatever they want. Frankly, this fear is unwarranted and these concerns are overblown. This thinking misunderstands the principles of bail as well as how the justice and corrections systems function—and how they should respond to a global pandemic.
Over the last six months, everyone has been affected by COVID-19 in some way. It has changed our daily lives. The justice system has also had to adapt to this new reality. That, however, does not mean that judicial officials are now playing fast and loose with the safety of victims and the community. The system dictates that justices of the peace and judges must follow procedures that have been set in place. They also must provide cogent reasons for their decisions. If they believe that an individual is a true threat to the public, and a bail plan that can diffuse the threat is not available, then it is the presiding justice’s duty to deny bail. No matter how much COVID-19 has changed things, this duty has not been altered in any way. What has also not changed is that this duty must be balanced with an individual’s right to reasonable bail. This right is guaranteed by the Canadian Charter of Rights and Freedoms under section 11(e). The evaluation of reasonableness also includes the actual granting of bail itself. If there is reason to believe that an accused individual will follow the conditions of their release and there is no pressing reason as to why they should remain in custody, they must be given bail. It is categorically wrong to think that COVID-19 has turned the bail system into a free for all.
It is also important to remember that every person charged with an offence is presumed to be innocent. As with the principle of reasonable bail, this presumption is also enshrined in the Charter under section 11(d). You must ask yourself whether it is in the accused’s interest, the public’s interest, and in the administration of justice’s interest to take the freedom away from someone who has not been convicted of any crime and confine them to a place that is likely to be a breeding ground for the virus during a global health crisis. Recall the old adage: It is better to have ten guilty people go free than let one innocent person suffer. It has been clear for centuries that negating the presumption of innocence can have detrimental effects on a good day, let alone during a pandemic.
Now, turning to offenders who have already been sentenced, the provincial and federal governments announced that they would be releasing low-risk (read: non-violent) offenders who were nearing the end of their sentences in order to combat the spread of COVID-19. Those convicted of violent crimes would not be considered for early release. While the population has decreased in provincial jails since March, it is most likely due to a number of factors—not simply COVID-19-specific releases. One report from April stated that only ten low-risk offenders had been released using this new mechanism. Although initial reports said that hundreds of inmates had been released from federal penitentiaries, it turns out that figure represented the number of individuals released overall; once again, not specifically due to COVID-19. In fact, it appears that the number of individuals released was on par with the previous year. As one can see, it is definitely not the dystopian situation that has been painted by some.
Even if there had been far more offenders released as a result of the pandemic, it would still not be a nightmarish scenario. The majority of the population will luckily never have to set foot in a jail. Many will never know what it is like to be incarcerated. Correctional institutions often suffer from overcrowding and lack basic sanitation; they represent the perfect storm for transmission of a virus that can be deadly. A sentence for a non-violent offence should not be a death sentence. In fact, most of the individuals housed in provincial jails are not even serving a sentence. Furthermore, correctional officers and individuals serving intermittent sentences or who are on day parole move between facilities and the outside world thus presenting a far greater threat to the broader public than the minimal chance of reoffending. Coming up with ways in which to lower the population in correctional facilities during a dire public health crisis should be applauded, not vilified. We need to have realistic conversations about these issues without the hyperbole and hysteria.
