COVID-19 'tipping the balance' as judges ponder bail for accused criminals

Members of B.C.'s legal community say bail is more likely for accused lawbreakers as COVID-19 has become a major consideration in Canada's justice system.

While those who represent an immediate threat to the community are still being locked up pending trial, lawyers say both prosecutors and judges are reluctant to confine people on less serious charges if they don't have to.

"It's there. It's a consideration at the end," said defence lawyer Leo Fumano, who had several clients scheduled for bail hearings last week.

"And it's tipping the balance on many close calls."

'An unprecedented time'

B.C.'s courts have suspended operations for all but the most urgent matters in order to curb the spread of COVID-19. The few matters that are still going ahead include bail hearings, at which all parties are required to appear by telephone or video.

Fumano said he had one client, an accused fentanyl trafficker, who was accused of violating terms laid out in at least five other bail hearings. In normal circumstances, he said the young man's chances of getting another break would be extremely remote.

But a judge released him.

"I've had a couple of clients in the past week that would have faced a serious uphill battle getting out," Fumano said. 

"It's a balance. And the chief judge basically says this is an unprecedented time and there's always the rule of law, but they're having to balance the rule of law against public health and safety."

'Neither extreme ... is appropriate'

Bail decisions in Canada are made according to the consideration of three sets of factors. The primary ground is whether detention is needed to ensure an accused will attend court. The secondary ground is to protect public safety. And the third ground includes the strength of the Crown's case and the consideration of other circumstances surrounding a case.

A pair of decisions in Ontario's courts from the past few weeks highlight the decisions judges are having to make in regards to the third factor.

In one, Nathaniel Nelson, an accused in the armed robbery of a jewellery store, argued that the heightened risk of getting COVID-19 in a pretrial setting meant he should be a candidate for electronic monitoring.

The judge noted that Nelson's own lawyer "conceded that but for the virus, he fully recognized that the new plan of release was not one that had much, if any, chance of success."

He also said that he fully expected to see more applications for bail as the health crisis worsened.

"I am more than satisfied that the prevailing health crisis required this court to consider whether Mr. Nelson should be released from custody into house arrest," the judge wrote. 

"The real issue is where the court should draw the line. At one extreme we simply keep everyone who is already locked up pending their trial locked up. At the other extreme, we release everyone for fear their continued incarceration would be little different from being a passenger on a cruise ship, albeit a cruise ship behind bars. Neither extreme, in my view, is appropriate."

'A new set of circumstances'

Nelson lost his bid for bail. 

The judge balanced the seriousness of the charges against him, his prior criminal record, the weakness of his plan for release and "the absence of medical evidence demonstrating that the 27-year-old was at any heightened risk of contracting the virus or succumbing to it."

But a judge of the same court let an accused street-level trafficker out on bail a week earlier, noting that "the risks in health from this virus in a confined space with many people, like jail, are significantly greater than if a defendant is able to self-isolate at home."

Vancouver defence lawyer Sarah Leamon said the extraordinary situation has left B.C.'s legal system with no choice.

"The courts are essentially adapting to a new set of circumstances that just a couple of months ago would have been completely foreign to them," she said.

"We're trying to find release conditions for particularly non-violent offenders so that they can be released into the community rather than sitting in custody during the pandemic. And one of the reasons for that is that the threat of a viral infection if it was to occur in a jail setting would be extremely heightened and very difficult to control."

Fumano said he feels prosecutors are also weighing very carefully whether to proceed on new charges, simply because of the enormous backlog of cases that have been adjourned to June while the court awaits the resumption of normal operations.

"There's talk of even sitting in night court and weekend court just to deal with the backlog," he said.

Despite the Ontario cases and the anecdotal observations of lawyers, a spokesperson for the Crown said in a statement there have been no changes in policy related to COVID-19.

"Crown counsel in B.C. continue to exercise their prosecutorial discretion in these areas on a case by case basis in accordance with the principles set out in the Criminal Code and the guidance provided by our policies."