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| Lee Chapelle |
Spring 2020: In the earliest stages of the COVID-19 pandemic, quick action was taken by Ontario’s Ministry of Attorney General (MAG) in the form of revisiting bails and pretrial custody decisions. Further, all sentencing matters from mid- to late March 2020 onward were put down and adjourned indefinitely, with just cause.
Judges, justices of the peace, Crowns, defence counsel, generally working in tandem, came together to reduce pretrial custody numbers in Ontario provincial jails. With the growing awareness of the inherent dangers posed by COVID-19 within congregate living settings, thresholds were lowered, somewhat. Flexibility was applied, rightly and effectively; e.g., Superior Court of Ontario in R. v. Cain 2020 ONSC 2018.
At the same time, credit was given to Ontario’s Correctional Services and the Ministry of the Solicitor General (SOLGEN) for further reduction of numbers in Ontario provincial jails. However, this was largely a misnomer.
SOLGEN did halt those already sentenced to intermittent sentences from attending institutions to serve their weekends. Additionally, a SOLGEN announceable depopulating Ontario provincial jails initiative indicated non-violent offenders may qualify for release under the Temporary Absence Program (TAP).
Unfortunately, it was a farce. The method entailed pulling files of sentenced inmates for review, at the institutional level, when the inmate was down to 30 days left prior to their statutory release date (SRD). Then, if they determined the stringent criteria were met, the file was forwarded on to corporate headquarters pending rubber-stamp approval. The process resulted in approximately one dozen inmate releases — in total — on an average of five to seven days ahead of scheduled statutory releases. Finally, this practice, like much of the early pandemic precautions put in place within the community in March/April/May 2020, went by the wayside by early summer 2020 and has not been revisited since.
At the onset of the global pandemic, my firm had close to a dozen clients facing imminent terms of incarceration. The vast majority were first time offenders, on bail, or their own recognizance. This was typical, for years, without issue, while proactively addressing mitigating/risk factors in advance of sentencing. This is the nature of the work Canadian Prison Consulting Inc. does with our client base.
Yes, we prepare clients for the dynamic elements of incarceration. However, more importantly, we work with our clients and their community supports, essentially in a case management capacity, to build strong foundations for early conditional release aspirations. Examples include treatment referrals, tutelage on allocutions, support letters, creation of structured release plans, provision of full orientation from custodial intake, the parole process, culminating in parole hearings and representation therein.
Our client base faced sentencing ranges of six months to 10 years — though most were looking at provincial or low-end federal terms, for non-violent offences. Guilt or innocence were no longer up for debate, conviction(s) registered. Now, they’re at the last phase of the court process, awaiting sentencing. In simple terms, the process of justice now reduced to making payment on the outstanding “debt owed to society,” in adherence with case law and precedents.
To be clear, I am not minimizing the important aspect of sentencing and the purpose and principles of sentencing. Rather, now well into year two, and the third and deadliest wave of the pandemic, my intent is solely to raise discourse and debate on the subject as we continue to find ourselves entrenched in unprecedented (modern) times as result of a serious public health crisis. As such, it seems to me age-old precedents, applicable as recently as early 2020, now require legitimate consideration, review and, hopefully, adaptation, when circumstances permit.
I raise this because by early fall 2020, Ontario courts revisited sentencing matters and began clearing the dockets. With one stand-alone exception, all sentencing matters referenced on my caseload — initially adjourned in the spring of 2020 — have now been sentenced to custodial terms, all while we continued living under one state of emergency after another, with clear direction to keep social distance and not congregate. Yet, we regressed to sentencing people in direct correlation with the worst phases of the COVID-19 pandemic, second and third waves with increasing perilous variants. Knowing full well the virus impacts congregate settings disproportionately.
And I, for one, am incredulous. Yet, to be fair, leaving sentencing matters pending indefinitely does not embody fundamental fairness, either. So, where does that leave us?
The catalyst for societal change, historically, stems from major societal adversities. An example? The great Depression led to the birth of social assistance or “pogey” as it was then known. In this instance, due to the realities of the pandemic, are we not obligated to reassess the purpose and principles of sentencing, through a different — the new reality of an ongoing pandemic — lens? With a strong look at increasing the use of electronic monitoring and/or conditional sentencing, in lieu of custodial terms. Not for all. Not violent, subculture entrenched repeat offenders.
Public safety remains paramount. No argument from me on that front. However, to adequately assess public safety today requires inclusion of overall public health considerations comprising offenders and prison staff. Further, denunciation, deterrence, along with the application of precedents and case law, require revisitation and reinterpretation, in light of the alarming realities of incarceration and the pandemic. Frankly, more often than not, denunciation and deterrence have proven to be nonstarters; for example, look at the war on drugs.
The threat posed by the inability to self-isolate also raises concerns regarding the guarantee to security of the person, as guaranteed by s. 7 of the Charter. It would seem to me in many instances, tertiary ground concerns clearly can be met through the introduction of alternative sentencing plans proposed, particularly with non-violent, first-time offenders who’ve established long periods of proven compliance, post arrest.
One possibility falls under s. 718.2 (b) of the Criminal Code “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” It would seem, circumstances, by definition, are not similar today to any time prior to March 2020.
If now is not the time for flexibility and increased use of alternative sentencing means that allow for following the new, increasingly important, societal norms of social distancing, then will that time ever come?
In closing, corrections continues to inherit increased numbers while placing focus entirely on mitigating the spread of the virus, resulting in backlogs and nothing but, potentially literally, deadtime. Rehabilitation and/or productive use of incarceration time is just not available while we remain under the grips of the pandemic.
In my next piece, I will provide a summary on the state of corrections in Canada today, while detailing the stories and experiences of clients now sentenced, referenced here.
Lee Chapelle is founder and president of Canadian Prison Consulting Incorporated.Through extensive firsthand experience and knowledge of the justice system and correctional process, he provides a concentrated and comprehensive informational experience that assists clients prepare for the huge transition of serving time. He also builds proactive game plans designed to lower sentences and lay the foundation for early release.
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