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Ontario and Canada
Appeal Court Dicta

COVID - Criminal

. R. v. Robinson

In R. v. Robinson (Ont CA, 2023) the Court of Appeal grants a sentencing appeal due to harsher incarceration conditions caused by COVID:
[8] Based on our review of the fresh evidence, we are satisfied that the impact of the COVID‑19 pandemic and the restrictions that were imposed resulted in the appellant experiencing, for a little over two years while incarcerated, significantly harsher conditions than would otherwise have been the case. This does not reduce the appellant’s moral blameworthiness or the seriousness of the crimes that he committed. But it has resulted in the appellant experiencing harsher conditions than were anticipated at the time he was sentenced. Having considered the circumstances of the offences and the offender, in particular his early guilty plea which resulted in the pandemic being an unknown factor at sentencing, we are satisfied that reducing the sentence as proposed will not give rise to an unfit sentence.

[9] In the result, leave to appeal sentence is granted, the appeal is allowed, and the appellant’s sentence of imprisonment is reduced by 18 months. All other terms of the sentence imposed shall remain in full force and effect.
. R. v. Kazman

In R. v. Kazman (Ont CA, 2020) the Court of Appeal granted bail pending the outcome of a leave to appeal to the Supreme Court of Canada, largely on grounds that the appellant faced risk from COVID-19 if incarcerated:
[15] With regard to the reviewability interest, I cannot say any more than the merits, while not frivolous, are weak. As the applicant submits, the SCC has granted leave
in cases involving the interpretation and clarification of R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. However, it is not at all clear that the SCC is likely to grant leave here.

[16] That said, the particular circumstances of this case justify release. The applicant’s crimes were serious but not violent. These offences were the first offences with which he has been convicted. There are no lingering public safety or
flight risk concerns that weigh in favour of immediate enforceability.

[17] Further, the applicant’s health conditions, which were well documented in the record before the court, as well as his age, place him within a vulnerable group that is more likely to suffer complications and require hospitalization if he contracts COVID-19. It is necessary for him to practice social distancing to lower the risk of contracting COVID-19. Being in jail will make it difficult, if not impossible, to practice such social distancing.

[18] As the public health authorities have emphasized at this time, the need for social distancing is not only a question of protecting a given individual but also the community at large. In the prison context, a COVID-19 outbreak may turn
into wider community spread as prison staff return home. As we are repeatedly hearing during this pandemic, the wider the spread, the greater the pressure will be for scarce medical resources.

[19] For these reasons, and in light of all of these factors together, the applicant’s release for a limited period would not undermine a reasonable and informed person’s confidence in the administration of justice.

[20] I emphasize that this does not mean that bail will be granted in any case where COVID-19 is raised as an issue. In R. v. Morgan (31 March 2020), Toronto, M51470 (C67536) (Ont. C.A.), bail pending appeal was denied due to the applicant’s
risk of reoffending and the inadequacy of his sureties to supervise against further offending.

[21] However, the particular circumstances of this case justify release. Given the applicant’s health issues amidst the COVID-19 situation, and the limited bail period sought, I am persuaded that the applicant’s detention is not necessary is in the public interest.


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