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COVID-19 poses access to justice hurdles for accused in Alberta custody

Tuesday, June 16, 2020 @ 1:06 PM | By Heidi J.T. Exner

Heidi J. T. Exner %>
Heidi J. T. Exner
Like the rest of Canada, Alberta’s provincial courts and the Court of Queen’s Bench made drastic changes to their operations when health authorities directed suspension of regular business activities to prevent the spread of COVID-19. Since March 17 of this year, judges in provincial courts have only heard cases according to schedule if an accused was in custody.

Other matters have only been heard when they have been urgent criminal issues, or family issues in which there have been threats of violence or if they have been related to child protection. Accused who have been in custody have been prioritized for bail hearings, preliminary inquiries, trials and sentencing hearings, in that they have still been heard as usual. Individuals who have not been held in custody, however, have not been required to attend their proceedings; most of their criminal trials since March 17 have been put on hold. Alberta Queen’s Bench justices have continued detention or bail review orders and arrest warrants, virtually uninterrupted.

Gilliana Shiskin, of Craig Hooker Shiskin Criminal Defence in Calgary, has seen the chaos of this transition from both the courthouses and the facilities in which her clients are held. “Incarcerated persons already live under tense conditions. There are often tensions with other inmates, correctional officers and a general lack of control over their daily lives and conditions.” Shiskin said the pandemic amplified all of these problems.

Additionally, rumours about the impact COVID-19 would have on their health and safety exacerbated mental health challenges. “I had clients telling me they felt like rats trapped on a sinking ship — they just assumed it was only a matter of time until COVID-19 got into their facility and that once it did, they would all get it,” said Shiskin. “Within the prison population itself, paranoia developed; if anyone coughed or sniffled, the group would turn on them, shun them, yell and be angry and be afraid of them.”

When asked how the pandemic has impacted the ability of legal counsel to perform for their in-custody clients, Shiskin provided thoughtful insight. She said the best way to connect with clients — to ask them difficult questions and have them share confidential information and deeply personal stories — is via face-to-face interviews. “Without this option it was very difficult to build trust, or to get the information I needed, or for them, the advice they needed.” She said it has been “difficult to feel I was doing my due diligence to inform, advise and prepare my clients — for court appearances in particular but also with respect to developing Agreed Statements of Facts, bail plans and early case resolution discussions.”

Amidst the mad scramble to adjust, Alberta’s justice system has been tasked to balance the severity of a charge or conviction, in the interest of enforceability, and the health and safety of those who are remanded in custody and awaiting trial or a hearing at a later date. Individuals in Alberta’s facilities are acutely vulnerable to COVID-19, as close quarters and poor living conditions can make for rapid spread in these types of institutional settings. Aware of the shortcomings of Alberta’s facilities, and the potential for catastrophe, this balancing act has produced mixed messaging.

According to Ian Savage of Calgary’s Criminal Defence Lawyers Association, from the outset of the shutdown, Alberta’s federal and provincial Crown prosecutors were directed to be as “liberal” as possible when considering non-custodial options for those who stood accused of criminal offences. The aim of this instruction was to reduce inmate populations in an attempt to prevent spread, but prosecutors were expected to prioritize the public’s safety with this concern to varying degrees, when responding to requests for consented bail releases.

At about the same time, Public Prosecution Service of Canada circulated a directive in which prosecutors were instructed to factor the implications of COVID-19 on inmates when determining their position on bail.

In May, the defence counsel for convicted murderer Kyle Ledesma took some of these directives to mean that a delay in his client’s scheduled conviction appeal hearing from April to November, paired with the threat of COVID-19, constituted a material change in circumstances and that Ledesma was entitled to a review of his detention in light of the health risk. Court of Appeal Justice Patricia Rowbotham disagreed. In her written decision, Rowbotham placed emphasis on his application’s failure to establish that he was at a higher risk than his fellow inmates. In other words, the pandemic alone was not enough to constitute a change in circumstances for this convicted killer.

Jared Craig, also of Craig Hooker Shiskin Criminal Defence, sought respite for his client, Gilbert Robinson, in the current circumstances. “In these challenging times people are called on to invoke their sense of compassion and humanity. And in navigating these difficult issues it is truly a reflection of the state of our culture and society,” he said. Rowbotham’s comment about the “emerging trend” in Canadian courts — to consider release only if an inmate can establish greater risk of infection, or complications from infection than the general prison population — was put to the test with Robinson, who is convicted of second-degree murder and awaiting his appeal in October.

Unlike Ledesma,  Robertson is 64, and suffers from underlying cardiac dysfunction and respiratory problems. If exposed to COVID-19, he is at a significantly higher risk than others. Robinson does not pose a substantial risk to public safety; he has no history of violent offences and he has demonstrated compliance with the justice system for over four years. His risk of flight is minimal. On May 29, Robinson’s application for judicial interim release was dismissed by Justice Thomas W. Wakeling. To arrive at this decision, Wakeling circumvented the balance of public interests and private health risks by placing his focus almost entirely on the convicted man’s grounds for appeal. Craig notes that “[i]n the context of persons convicted of crimes, you are no longer dealing with persons who enjoy the presumption of innocence. But they are human beings.”

In the event of a second wave, or looking forward in time to sentencing trends that emerge from the pandemic, one thing is clear: consistent messaging from the Crown is a necessity. It is impossible to adapt to the circumstances of a pandemic with ease, but justice is even further from reach when the messaging from our legal system is a moving target.

Heidi J.T. Exner is a JD/MBA candidate at the University of Calgary. She is a published academic, freelance journalist, editor of the Moot Times and she sits on the board of Calgary Legal Guidance. She can be reached on LinkedIn or follow her @theheidikins

Photo credit / Valerii Evlakhov ISTOCKPHOTO.COM

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