A 20-year-old was arrested on drug trafficking charges, but in court he argued he should be released on bail because coronavirus had made Ontario prisons too dangerous.

The court agreed.

“The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells,” the judge ruled.

In Canadian courts, the COVID-19 pandemic has become a new line of argument for accused criminals seeking to be released from custody to await their trials.

Over the past two weeks, a handful of cases have dealt with requests by those charged with sometimes serious offences, making the case they should not be detained because of the heightened risk to prison inmates.

There have been few confirmed infections in Canada’s prisons so far, among them an Ontario corrections worker and a Toronto South detention centre inmate. The Correctional Service of Canada said none of its inmates had tested positive.

But concerns about the pandemic and its potential impact on prisons are now surfacing in both criminal and immigration courts, as judges are being asked to factor COVID-19 into their detention decisions.

On March 20, the Ontario Superior Court ruled that the “greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on house arrest” was a factor in whether to grant bail.

The case concerned a suspected drug dealer identified only by the initials J.S. The Crown opposed releasing him, but the court ordered house arrest in Scarborough and $15,000 in bonds.

“I want to be clear that I am not suggesting any failure of the correctional authorities to take appropriate steps to attempt to keep inmates healthy, and to attempt to limit the spread of the virus,” the judge wrote.

“But I take notice of the fact, based on current events around the world, and in this province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home.”

Without social-distancing or self-isolation, the virus is “clearly easily transmitted,” the judge wrote, adding it was also “clearly deadly to a significant number of people who it infects.”

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“I note that this factor concerns not only Mr. S’s own health, but also the preservation of scarce hospital resources to treat patients. If more people are infected, those resources will be more strained.”

Three days later, the court dealt with the same question once again as a judge weighed in on whether to release a 27-year-old held at the Central East Correctional Centre in Lindsay, Ont., for allegedly robbing a jewelry store.

“At one extreme we simply keep everyone who is already locked up pending their trial locked up. At the other extreme, we release everyone for fear their continued incarceration would be little different from being a passenger on a cruise ship, albeit a cruise ship behind bars.”

“Neither extreme, in my view, is appropriate.”

The judge accepted that Nelson faced a heightened risk because it was impossible to practice social distancing while living in a provincial jail cell with double or triple bunking.

But the judge also said Nelson was also young and had no pre-existing physical or mental health conditions that would place him at risk of death. The charges were also serious, and Nelson had a prior criminal record.

As a result, “I am not satisfied that there would be confidence in the administration of justice if Mr. Nelson was released from jail,” the judge wrote in dismissing the application for bail.

Meanwhile, COVID-19 has now appeared for the first time in a case concerning an immigration detainee.

At the Federal Court, the judge cited concerns about the safety of Ontario prisons amid the COVID-19 pandemic in a ruling in which he urged the release of a violent offender “as soon as possible.”

Although the judge overturned a decision to release the Filipino national, deemed a danger to the Canadian public, he also said he hoped the parties could quickly reach a “suitable alternative to detention.”

“Uncertainty abounds with the declaration of medical emergencies. Concerns are being raised about the safety of Ontario’s correctional institutions, including for immigration detainees,” he wrote.

The case concerned Andrew Taino, who is under a deportation order after accumulating what the court described as “multiple convictions involving violence or weapons” since his arrival in Canada in 1997.

The last time Taino was released from immigration detention in 2018, he pointed a gun at a woman in a Goodlife Fitness centre parking lot and tried to steal her car, according to the court.

“At this moment when the COVID-19 pandemic is making the future very precarious for many, including Mr. Taino, it behooves all those involved in the oversight of his matters to ensure a just and expeditious outcome, such that he is released as soon as the one basis for his detention – the danger to the public – has been adequately mitigated by a suitable alternative to detention,” the judge wrote.

The Immigration and Refugee Board said it was “open to decision-makers” to consider any relevant factors, including COVID-19, when deciding whether to detain a foreign national facing deportation.

“In this regard, counsels are making submissions and bringing forward evidence in relation to the risks posed by COVID-19 which are being considered by decision-makers,” said IRB spokesperson Anna Pape.

The IRB “is entertaining requests from parties for early detention reviews, for example, to consider alternatives where the person detained may have a vulnerability that places them at elevated risk from the virus or any cases with an alternative to detention,” she said.

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