A Quebec court recently decided to deny bail to an 18-year old man after finding, in part, that he had not respected social distancing rules prior to his arrest.
The 18-year old accused had been detained since April 7th, 2020. He had been charged with various counts, including: possession of a firearm, extortion and conspiracy to commit extortion. In addition, he was charged with contravening a firearms prohibition order, as well as breaching a probation order by failing to complete the required hours of community service. He was charged along with three other men in what amounted to a dispute over $2500 with the victim.
Before his arrest on April 6, 2020, the police observed the accused visit at least two addresses other than his own by car. According to the police, he first went to the home of the sister of one of the co-accused. Subsequently, he allegedly picked up another co-accused and drove him home.
Because of the COVID-19 pandemic, upon his arrival at the detention centre, the accused was isolated from the rest of the prison population for 14 days.
His bail hearing was conducted by audio-conference.
The prosecution objected to his release, arguing that his detention was necessary for the protection or safety of the public.
The defence submitted to the court an open letter addressed to the federal and provincial governments, dated April 6, 2020 and co-signed by 123 health professionals, university professors and students. In the letter, the signatories submitted that the risk of the spread of COVID-19 in prisons is increased by the very nature of the institutions. The letter urged governments to release as many prisoners as possible as soon as possible.
The court’s decision was released on April 15, 2020.
The court reviewed legal principles relating to the accused’s release, finding that the accused had a high risk of reoffending if he was released based, in part, on his criminal history.
The court also addressed the issues raised surrounding the COVID-19 pandemic.
First, the court acknowledged the admissibility of the letter submitted by the defence relating to the release of prisoners. However, it also stated that the letter discussed generalities that would not necessarily apply to all detainees, explaining:
“Despite the unquestionable seriousness of the pandemic, there is no need to abolish prisons or pre-trial detention.” [translated]
The court then noted that not only did the accused drive to two different homes prior to his arrest, but that by driving one of the co-accused home, the two men did not respect the authorities’ directives to stay at least two metres apart from others.
It was the court’s opinion that the accused had deliberately ignored the government’s clear directives regarding the COVID-19 pandemic. The court then stated that such behaviour further confirmed the accused’s attitude of indifference and recklessness with respect to orders issued by authorities.
The court acknowledged that the remand of the accused in custody would potentially increase his risk of contracting COVID-19, because social distancing would be more difficult within the detention facility.
However, the court noted that while he was outside of prison, the accused had also not respected directives surrounding social distancing.
The court then stated:
“There is nothing in the evidence to suggest that the accused has a precarious state of health. Although citizens of all ages are likely to be infected with COVID-19, at the age of 18, they are less likely to develop symptoms severe enough to require hospitalization.” [translated]
The court further found that no specific evidence had been presented alleging that there was a particular problem at the accused’s detention facility with respect to crisis management. It found that a generalized risk alone was not sufficient to justify the release of the accused.
Finally, given the court’s other conclusions regarding the risk presented by the accused and his likelihood to commit a crime if released, the court found that the pandemic factor had little impact in its analysis.
As a result, the court found that the accused had not meet his burden of demonstrating that his detention was not justified and that it was in fact necessary for the protection and safety of the public for him to remain in detention.
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