Bail and Parole in the Time of COVID-19

Some individuals are particularly vulnerable to Covid 19 as a result of underlying health conditions.  It is crucial for such individuals to minimize contact with others to avoid serious illness and reduce the spread of COVID-19, and yet it is “difficult, if not impossible” for them to practice social distancing while they are in custody.

See Kazaman, 2020 ONCA 251, at para. 17.

The Ontario Court of Appeal has accepted that the COVID-19 pandemic is a factor that may be considered on a bail pending appeal application. The weight to be given to this factor depends on the circumstances of each case.

See Kazaman, 2020 ONCA 251, at paras. 17-21 [bail granted];

R. v. Omitiran, 2020 ONCA 261, at para. 26 [bail denied]; 

R. v. Jesso, 2020 ONCA 280, at para. 36.

Where counsel wishes to argue that the applicant’s special medical vulnerability within the context of his/her incarceration during the COVID-19 pandemic favours release, counsel should ensure that the court has the facts on which it can make an informed assessment. 

The evidentiary record should include information about the specific risk faced by applicant, his/her health vulnerabilities, and what steps have been taken by the custodial institution to mitigate the risk during the COVID-19 pandemic.    

COVID-19 & Parole

The health-risk posed to the offender by the COVID-19 pandemic may also be relevant to federal parole decisions, including the granting of parole to an offender not yet eligible for day and/or full parole (what is sometimes known as “parole by exception”).

As summarized on the Parole Board of Canada’s website: “The law requires the PBC to take into consideration all relevant available information related to the offender’s case, including the offender’s health or health-risk posed by the COVID-19 pandemic.”

See section 121(1) of Corrections and Conditional Release Act;

Parole Board of Canada, Decision-Making Policy Manual for Board Members, section 4.3, online: https://www.canada.ca/en/parole-board/corporate/publications-and-forms/decision-making-policy-manual-for-board-members.html;

Parole Board of Canada, online:https://www.canada.ca/en/paroleboard/services/coronavirus-covid-19.html

 

Stuart O’Connell (Barrister/Solicitor)


Location: Toronto, ON, Canada

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