Bail, COVID-19, and the release of inmates detained on the “tertiary ground”

A large number of Canadians are currently in custody in this country despite being factually innocent and having already been found not to pose a risk to public safety.  We should get those particular people out of jail and into their own homes, immediately.  En masse.

COVID-19 is on a collision course with Canadian jails.

coronavirus covid bail canadaIt is not a matter of if, but when the coronavirus will spread though our correctional facilities.  It is not a question of if people will lose their lives, but how many.  It is not a question of whether this will exacerbate the current public health crisis generally, but how badly.

Justice system participants in all roles recognize the impending situation and have been working tirelessly to determine who can and should be released from custody and getting them out of harm’s way.  In doing so, defence lawyers, Crown attorneys, judges, justices of the peace, and hard-working court staff are also making the situation within the jails more manageable for those that remain.

Who is presently being released in response to COVID-19 and why it is not enough

There are four basic prototypes for the in-mates we are releasing: (a) people nearing the end of custodial sentences for crimes of which they have been found guilty; (b) people who have not yet been found guilty or not-guilty, were ordered detained awaiting trial, but whose cases are now being re-considered in the circumstances; (c) people who have not yet had a bail hearing to determine whether they should await trial in custody or out of custody, and (d) any person who has not yet had a trial, but is willing to plead guilty and be sentenced to no further jail time.

The process for determining the releasability of any of these four prototypes is arduous.  With courthouses running at a fraction of their normal capacity and a tremendous number of in-mates that likely should be released, each in-mate is being assessed on an individual basis.  Which seems necessary.  Not every person can or should be released from custody.  Professionals must determine whether they should be released or not.

But if a certain category of in-custody persons can be determined “releasable”, we could provide massive relief and save untold lives in one fell swoop.

The release of inmates detained on the tertiary ground

One such category of persons that should be released immediately is anyone who was detained in-custody awaiting their trial based only on the “tertiary ground”.

What is the “tertiary ground”?  It is one of three reasons a person is ordered to stay in jail while waiting for their trial.

There are three reasons a person – presumed innocent – can be ordered detained in custody pending trial.  One, (the “primary ground”) if they are a sufficient risk to flee or not show up to court; two, (the “secondary ground”) if they are a risk to public safety, or; three, (the “tertiary ground”) if they are neither of the first two, but the public would lose its faith in the judicial system if the person were released pending trail.

Many think of the “secondary ground” as the proper reason to keep somebody in custody.  Even if they are presumed innocent, if there is a substantial likelihood they will put the public at risk, they must be kept in custody with apologies to the presumption of innocence.   The “primary ground” is sensible as well: that a person facing serious criminal charges must not be allowed to escape justice by becoming a fugitive.

For those who were ordered by a justice to remain in custody for one of those two reasons, we ought to continue what we are doing currently: assessing on an individual basis whether the change in circumstances of our present crisis still requires their detention.

But, for those who have been determined already to not present a risk to the public, and not present a flight risk, their continued detention in light of the COVID crisis is not sensible.  This is anyone whom a justice detained on the tertiary grounds alone.

Some considerations that lead to the detention of accused persons on the tertiary grounds  include: the seriousness of the charge, the strength of the Crown case, the involvement of a firearm, and the likelihood of a lengthy prison sentence if eventually found guilty.

But none of those are valid reasons to leave a person in custody, in the path of the oncoming train.  It is cruel to the accused person and it is self-destructive considering the broader impact it will have on our already-strained capacity to fight COVID.

Courts are starting to recognize the applicability of COVID-19 to the tertiary ground in considering bail

Superior Court Justices in Ontario have already declared that the reality of the COVID crisis favours release on the tertiary ground.  For obvious reasons: the reasonable and informed public that might normally be offended by the release of an accused charged with a serious crime is likely to feel very differently knowing how dire the situation is about to be when COVID hits our jails.

If nothing else, the more people there remain in custody – all at very high risk to contract the virus – the more in-mates there will need to be hospitalized, thus taking up ICU beds and ventilators needed for the rest of us.  This is to say nothing of the fact that reasonable members of the public do not wish the coronavirus upon still-innocent accused persons (or anyone for that matter).

So, if an informed justice has already determined that such a person is not detainable on either the primary or secondary grounds, what good does it serve to have these people exposed to – and contribute to – the horror that is about to befall our jails. 

The inevitable harm on individuals and the justice system

All that stands in the way of the release of these people is the theoretical public sentiment that although no actual harm will result from this person’s release, and real harm will result from their continued detention, and even though I know they will be properly and fully punished if found guilty, I don’t much like the thought of this person not being in jail.

The moral soundness of the tertiary ground is questionable in normal circumstances.  But these are not normal circumstances.  We are all sacrificing for the good of public safety and to save lives.  Any member of the public who is still so troubled by the idea of a person who may be guilty being on house arrest instead of in a jail, despite the impending public-health disaster that is about to consume our jails … well, that person is just going to have to sacrifice a little bit as well.

Justice delayed, for the purpose of handling a public health crisis, is not justice denied.

To be very clear, this is not a call for these people to be excused of their charges.  Of course not.  These people will face trial, they will face jeopardy, they will serve long – in certain cases lifetime sentences if found guilty.  Once the crisis has subsided, the courts will re-open and trials will resume.  We are not keeping these persons out of custody indefinitely.  We are simply allowing them to sidestep the cruel consequences of being stuck in an overcrowded jail with hundreds of other people, while the rest of us are socially distancing to save our own lives and those of our fellow Canadians.