COVID-19 not a get-out-of-jail-free card for Sask. inmates

It's a tale of two appeals.

Saskatchewan Court of Appeal Justice Georgina Jackson heard two cases this month where COVID-19 emerged as part of a release argument.

One man was released. One is still behind bars.

So what happened?

"COVID-19 is not the only factor that's being considered," said Lisa Watson, co-president of the Saskatoon Criminal Defence Lawyers Association.

"These are cases that are moving forward with very strong release plans for accused persons, they have safe places to reside, they have good plans for their future."

Watson and other lawyers who track these cases say that COVID-19 can be a legitimate part of a release proposal, but that an inmate claiming they want release because of general concerns around the virus's impact on a closed population, like a jail, is simply not enough. They must show that they are personally at risk.

There are a handful of points in the judicial process where the arguments are being made.

These include at an accused's initial appearance in provincial court. Or, once in custody, at their bail hearing. There are also cases where bail has been denied and that decision later appealed at Court of Queen's Bench.

There are also cases featuring convicted individuals who are applying for bail while awaiting the outcome of their appeal.
Such was the case with 69-year-old John Shingoose. He had been convicted in February of drunk driving and causing bodily harm. He applied for interim release because of health concerns.

• Sask. judge releases 69-year-old from jail over fears of COVID-19

Shingoose is a diabetic and in failing health.

Jackson agreed to his release. In her written decision, she did not dispute that significant steps have been taken in all jails to encourage social distancing and keep the jails clean. Further, the jails are not as overcrowded as in the past.

"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," Jackson wrote.

"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."

Jackson also heard the case of a 41-year-old man convicted of assault and sexual assault. He is seeking release while awaiting his appeal. He cannot be named to protect the identity of the complainant.

He cited COVID concerns as part of the reason for wanting out.

"He is justifiably concerned about COVID-19 for personal reasons concerning his future and that of his family," Jackson wrote dismissing the application.

"Unfortunately, however, his concerns in that regard would apply to the whole of the inmate population without distinction."

Saskatoon lawyer Kathy Hodgson-Smith appeared in a Court of Queen's Bench this week to make a bail application for Erin Straightnose, who is charged with first-degree murder in connection with a December death in Saskatoon. 

"There's a balance here, to protecting the public and a broader view that makes the court have to balance this elevated risk of keeping people in prisons where we could find alternative release plans but still maintain public protection," Hodgson-Smith said.

She said COVID is not the only factor to consider, but said proper weight should be given to how all society benefits from getting people out from behind bars during a pandemic.

People who contract the virus while in jail could end up in hospital, taking beds from other sick people, she said.

Justice Ron Mills reserved his decision on Straightnose's bail.