Memorandum - COVID 19: Bail and Resolution Principles

Purpose

The purpose of this memorandum is to provide guidanceFootnote 1 to assist counsel as they review prosecution files for purposes of formulating bail and resolution positions that are principled, operationally sensitive and accountable during and in anticipation of the effects of the COVID-19 pandemic on the administration of justice. The guidance is not a fundamental change in the approach to bail or sentencing principles. It recognizes that we are in exceptional circumstances that require a response to particular extraordinary circumstances.

This guidance addresses two specific COVID-19 related issues:

  1. The reduction to the extent possible, in a principled manner, of the detention populationFootnote 2 during the pandemic period; and,
  2. The reduction of the accumulated case load that is not being addressed during the temporary reduced operation of the courts so that the highest priority cases can be prosecuted effectively on the resumption of full court operations.

Prosecutors should apply the following principles in resolving cases before the courts. Chief Federal Prosecutors may choose to provide additional specific guidance to counsel in their regions.

Context

For members of the public, including those who are victims of crime, there is the expectation that decisions about bail, incarceration, and resolution offers will occur in a principled manner that takes into account two realities:

  1. the effects of the pandemic; and
  2. the need for the rule of law even during a pandemic.

The effects of the COVID-19 pandemic are multi-faceted. There are the potential risks to the health of incarcerated persons. Prison staff face health risks from dealing with detained persons, including transporting them for video or telephone appearances.  Family members of incarcerated persons may not benefit from their assistance with the added family responsibilities during the pandemic.

At the same time, prosecutors are expected to respond to the societal interests reflected in the primary, secondary and tertiary grounds for denial of bail, as well as the sentencing principles that address public safety and restorative justice through specific and general deterrence, rehabilitation, and denunciation.

General principles applicable to bail and sentencing

To the extent possible, those incarcerated during the pandemic should be the most serious offenders and/or those who have committed the most serious offences. Recognizing that such determinations are heavily dependent upon the facts of each case, the following considerations may assist counsel to make those determinations:

Is the accused likely to receive a penitentiary sentence or 2 years less a day?

If a penitentiary sentence is the appropriate result in normal circumstances, the offence should be considered serious.

Is the criminal record one that tends to a less serious characterization of the accused from a public safety perspective? Is the record of limited relevance or dated?

Are the offences on the criminal record by and large not related to the criminality for which the accused is before the courts?  Related criminality may not necessarily be the same type of crime but may be relevant due to its connection to violence or to a clear profit motive. Offences on a record may be of the same type but related to another circumstance such as a substance use disorder that may suggest that incarceration is not productive or necessary during this time.

Are the offences largely administration of justice offences that may have been addressed differently in light of the newer approaches to such offences represented by the judicial referral hearings created in s. 523.1 of the Criminal Code?

Although the offences may be repeated and related, are they generally of a low level of severity such as simple possession or low level trafficking or related to a substance use disorder?

Do the facts support possession for the purpose of trafficking?

Counsel should ensure that charges of possession for the purpose of trafficking are cases where the circumstances, including the quantity, are not merely consistent with hoarding or other steps related to a person attempting to secure a quantity of controlled substances particular to concerns about shortages from safe suppliers during the pandemic period.

Does the offence involve violence or other significant aggravating factors?

Offences that involve violence, or have significant aggravating factors associated with them relating to the exploitation of positions of trust, or pose risks to the health or safety of vulnerable persons, including young persons, will, absent exceptional circumstances, be characterized as serious ones.

Counsel should consider whether the continued incarceration of persons with particular health vulnerabilities that may put them at greater health risks during the pandemic is in the public interest and if a greater discount or exceptional sentence such as suspended sentence is appropriate.

Counsel may also consider the impact of a particular hardship on the accused’s family related to the pandemic.

Counsel should provide notes to file in respect of each bail or resolution decision where COVID-19 factors were relevant, in order to explain how such factors were considered in the exercise of their discretion.

Considerations specific to bail

For the less serious offenders held on the less serious offences, there is a strong likelihood that some form of release, whether through a personal undertaking or a surety bail – with or without deposit – will be appropriate.

Where possible, conditions requiring travel or in person reporting should be avoided to reduce the possibility of unnecessary contact.

Counsel should avoid release of offenders upon conditions that require heightened monitoring and/or a rapid response for breach of conditions (e.g., electronic bracelets)

Considerations specific to resolution positions for sentencing

Counsel should consider giving greater credit to pre-sentence incarceration as of February 2020. The period of detention during the pandemic can properly be taken into account as meriting greater credit when calculating credit for pre-sentence in custody time. This enhanced credit should apply regardless of when the plea of guilt is entered.

Where the accused would have to continue to be incarcerated for a period of a few months to meet the lower end of the range of a sentence to which they would ordinarily be liable on a guilty plea, even with the enhanced credit for pre-sentence custody time, counsel may, if other circumstances do not require incarceration, consider a sentence of time served.Footnote 3

There is a value to the administration of justice in resolving as many cases as possible in a principled manner before the resumption of the full operation of the courts. Therefore, counsel may enter into resolution agreements that might ordinarily be exceptional, but (appropriate in arriving at a just sentence in this particular context.

To reduce the backlog, counsel may consider a resolution that provides a greater reduction for a guilty plea now than would ordinarily apply. For example, if the ordinary reduction for an early guilty plea is generally 25%, in these circumstances it could be increased beyond that level. Serious offender or offences cases, particularly those relating to violence, endangering life or safety or involving organized crime, should not be dealt with in this manner.

There is a value to the administration of justice in focusing judicial resources on the cases where the reasonable prospect of conviction is assessed as being strongest. Therefore, counsel may determine that, as part of their caseload management, including the resolution of files with multiple counts and accused, that counts with less clear prospects of conviction should be withdrawn or stayed in order to dispose of the case or promote a global resolution. Counsel must consider, however, whether the overall public interest, including the effective administration of justice and the protection of the public, are best served by such a withdrawal or stay.

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