The Pains of Imprisonment in a Pandemic.

• Date: 22 March 2021
• Author: Kerr, Lisa

Introduction I. The Search for an Underlying Condition II. Bail in a Pandemic: Debating Vulnerability A. Position One: Recognize Systemic Impacts B. Position Two: Look for Individual Vulnerability C. Court of Appeal for Ontario: Evidence of "Particular Risk" Required III. Pretrial Credit: Add the Pandemic to the Mix of Enhanced Credit IV. Sentencing: COVID-19 Is Relevant to Proportionality Conclusion Introduction

Overcrowding, communal spaces, and unsanitary conditions mean that it is always difficult to contain the spread of infectious disease in custody. The pandemic has raised the stakes of this challenge and has intensified the risks and severity of confinement in both provincial jails (1) and federal prisons. (2) Measures implemented to mitigate the spread of COVID-19 include cancelled visits, suspended programming, and prolonged isolation in cells--all of which serve to make custodial life harder while delaying and impairing access to parole. This article tracks how judges have responded to the impact of COVID-19 in three aspects of the law of punishment: access to bail, calculation of credit for pretrial custody, and sentencing generally. This is a story of significant variation in terms of judicial willingness to recognize how the pandemic has intensified the pains of imprisonment.

In the context of bail, the COVID-19 factor has been treated inconsistently. Some judges have asked whether accused are particularly vulnerable to COVID-19 by requiring evidence of individual, heightened vulnerability to serious illness. These judges seem keen to draw a neat line between those we must carefully protect from state custody during the pandemic and those we need not. Requiring evidence of an underlying health vulnerability to COVID-19 is a tempting halfway measure, but we argue that it fails to address the full range of concerns that the pandemic raises, including the impact of infection control measures on prison conditions generally.

In the context of calculating credit for pretrial custody, some judges have been willing to recognize COVID-19 as a factor that properly bears upon the analysis. Harsh pretrial confinement, including routine lockdowns and other serious deprivations, has long been a basis for enhanced credit at sentencing. (3) We discuss the case of R v Abdella, which adds COVID-19 as an additional ground for credit with reasoning that makes clear that individual, heightened vulnerability to illness is far from the only concern. (4) We compare the case of R v Baptiste from Quebec, which recognizes but refuses to respond to the impact of the pandemic on our institutions of detention and punishment. There the judge concedes that courts must "react appropriately to important changing conditions in extraordinary times". (5) But the court suggests, wrongly in our view, that "adherence to the established laws of sentencing" is incompatible with that task. (6)

Many other courts have been willing to recognize the relevance of the effects of COVID-19 to established legal principles of sentencing. We discuss the leading case of R v Hearns, in which Pomerance J accepts that the pandemic has deepened the severity of the sanction of confinement. (7) Largely by way of judicial notice, she recognizes that a "government-enforced congregation of people" during COVID-19 interacts with sentencing principles like proportionality and parity. (8) Her concerns are not limited to cases where a defendant has a specific underlying condition that renders them vulnerable to serious illness or death from COVID-19. (9)

There is no question that pretrial detention and a sentence of custody may be warranted notwithstanding the pandemic, but we are critical of those decisions that minimize the risks or dismiss the effects of COVID-19. Many bail judges in particular purport to assign responsibility for the pandemic response entirely to corrections, in decisions that implicitly presume correctional expertise in public health and disavow the legal relevance of penal severity. In these approaches, we see an old trope of judicial deference that sees jails and prisons as "beyond the ken of courts". (10) We conclude by suggesting a different perspective: that the pandemic is an occasion to deepen our recognition of the risks and effects of detention generally, many of which are graver than that posed by COVID-19.

1. The Search for an Underlying Condition

   Discussion of individual vulnerabilities to COVID-19 has been prominent since the early days of the pandemic when we learned of the "underlying" or "pre-existing" conditions thought to render some more likely to experience severe symptoms from COVID-19. Disability and policy scholars Thomas Abrams and David Abbott tracked the constant "reassurance" in media that serious illness and death happen largely to elderly people and those with underlying health conditions. (11) When the first death of a child was reported in the UK, there was "a clamour to establish whether they had an underlying health condition. Parts of the nation breathed easier when this was confirmed, much like when natural disaster is announced: 'But wait, it's not here, it's somewhere else, somewhere foreign.'" (12)

   In responding to the profound anxieties of this pandemic, we seem to be keen to draw lines between those who will be affected and those who will not. Abrams and Abbott argue that these same lines are a troubling reverberation of a pre-pandemic reality as to whose lives are "expendable and not to be counted". (13) There is an "underlying casual brutality" to this discourse which partly serves to comfort the majority: we can breathe a sigh of relief to know that only those who are already sick or vulnerable will really be affected. (14)

   In some of the pandemic bail cases, there is a similar attempt to draw lines around the vulnerable, but to a different end. We see judges search for underlying vulnerability as a way to decide when pretrial detention is risky or not. This search enables judges to avoid three difficult facts: (1) that COVID-19 can deliver lasting harm to individuals who have no other health conditions, (2) that imprisonment is far more difficult during the pandemic for reasons that have nothing to do with individual vulnerability to COVID-19, and finally, (3) that inmates face considerable risks in detention apart from the pandemic. Rather than recognizing how the pandemic adds to a system of pretrial detention that was already unacceptable, judges who seek--and fail to find--evidence of a serious underlying condition are able to breathe a sigh of relief about their decision to detain.

2. Bail in a Pandemic: Debating Vulnerability

   When a person is charged with an offence, a decision must be made whether to release or detain them pending trial. Access to bail is a highly consequential decision for an accused person, for a number of reasons. First, conditions in pretrial custody are often very difficult--and it does not include any of the programming that is available to sentenced inmates. Second, those who are held in custody often struggle to prepare for trial, and they are unable to take the rehabilitative steps in the community that might assist their case at a sentencing hearing. Finally, the accused is presumed innocent, such that a decision to deprive them of liberty is a significant measure that must be justified.

   A decision to detain pending trial must rest on at least one ground of detention set out in the Criminal Code: the primary ground, which is meant to ensure appearance in court; the secondary ground, which is aimed at protecting public safety; and the tertiary ground, which is concerned with maintaining confidence in the administration of justice. (15) The pandemic bail cases help to underscore the extent to which the application of these grounds is highly discretionary.

   The pandemic tested the bounds of bail law by importing a novel issue into an already difficult balancing exercise. We have closely tracked the lower court caselaw that unfolded in the early months of the pandemic in another article. (16) We found two prominent lines of cases. One recognized the heightened risks and severity of confinement for all inmates during the pandemic and permitted consideration of COVID-19 in bail applications largely through the doctrine of judicial notice. A second line of cases required that each individual accused point to evidence of an underlying or pre-existing health condition that made them particularly vulnerable before COVID-19 could weigh strongly in favour of release.

   1. Position One: Recognize Systemic Impacts

      Early on, many superior courts quickly accepted the pandemic as a "material change in circumstances" sufficient to trigger a bail review. (17) In an influential March 20, 2020 decision, Copeland J treats the pandemic as a standalone material change on the tertiary ground. (18) She takes...