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.

By |2021-03-18T14:09:48+00:00September 1st, 2020|Criminal Defence|

About the Author:

Igor Vilkhov is the principal lawyer and founder of Vilkhov Law Professional Corporation.Igor’s legal career began in 2009 when he interned as a summer associate at a criminal defence firm in Toronto. Since then, he graduated from the University of Windsor Law School where he specialized in criminal law and family law.
Criminal Lawyers Association
Toronnto Lawyers Association
Law Society of Ontario
Criminal Lawyers Association
Toronnto Lawyers Association
Law Society of Ontario

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Thanks Igor for all your help throughout my criminal process. I have never been charged before and I think Igor really helped ease my nerves through the entire process. When I was initially charged I called a couple of other firms but I ended up retaining Igor because when we spoke on the phone he spent a lot of time to explain what I was charged with and what it all means, I felt the most comfortable when talking to him. As my case progressed, he really took the time to explain my options and the probability of each one, so I really appreciated that and I felt less confused with all the various legal proceedings.
My son was charged with DUI and I hired Igor to represent his matter. Overall, my experience with Igor was great and my son felt really comfortable working with Igor as well. As a parent, I was really concerned about the entire process and even though my son is considered an adult, I was extremely involved the entire time. I really liked that Igor respected my concerns as a worried parent and always ensured any meetings or conversations were held with me present as much as possible, if I wasn’t available to attend a meeting and only him and my son were able to meet, Igor would reach out to update me. I would most definitely recommend Igor to others.
He is caring, honest, and highly knowledgeable in his field. I was charged with domestic assault a few months ago, I was initially with another lawyer but got fed up with the unresponsiveness (didn’t answer my calls or emails), I decided to look for someone else. Igor came highly recommended from a friend and I’m glad I went with him. He knows his stuff and fought hard for my case. Compared to other lawyers I’ve dealt with, day and night.
I cannot recommend Igor Vilkhov enough. I was charged with possession and trafficking, I was going through a tough time in my life at the time and I am glad I was able to find a lawyer who is genuinely passionate about what he does. I was kept consistently updated throughout the entire process and I couldn’t believe the positive outcome. While reviewing my case, he located a significant error on the part of the police. I can honestly say that his work is meticulous and his ability to negotiate is something else. If you are looking for a quality criminal defence lawyer, I can’t say enough good things about Igor.

TESTIMONIALS

Thanks Igor for all your help throughout my criminal process. I have never been charged before and I think Igor really helped ease my nerves through the entire process. When I was initially charged I called a couple of other firms but I ended up retaining Igor because when we spoke on the phone he spent a lot of time to explain what I was charged with and what it all means, I felt the most comfortable when talking to him. As my case progressed, he really took the time to explain my options and the probability of each one, so I really appreciated that and I felt less confused with all the various legal proceedings.
My son was charged with DUI and I hired Igor to represent his matter. Overall, my experience with Igor was great and my son felt really comfortable working with Igor as well. As a parent, I was really concerned about the entire process and even though my son is considered an adult, I was extremely involved the entire time. I really liked that Igor respected my concerns as a worried parent and always ensured any meetings or conversations were held with me present as much as possible, if I wasn’t available to attend a meeting and only him and my son were able to meet, Igor would reach out to update me. I would most definitely recommend Igor to others.
He is caring, honest, and highly knowledgeable in his field. I was charged with domestic assault a few months ago, I was initially with another lawyer but got fed up with the unresponsiveness (didn’t answer my calls or emails), I decided to look for someone else. Igor came highly recommended from a friend and I’m glad I went with him. He knows his stuff and fought hard for my case. Compared to other lawyers I’ve dealt with, day and night.
I cannot recommend Igor Vilkhov enough. I was charged with possession and trafficking, I was going through a tough time in my life at the time and I am glad I was able to find a lawyer who is genuinely passionate about what he does. I was kept consistently updated throughout the entire process and I couldn’t believe the positive outcome. While reviewing my case, he located a significant error on the part of the police. I can honestly say that his work is meticulous and his ability to negotiate is something else. If you are looking for a quality criminal defence lawyer, I can’t say enough good things about Igor.

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