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The COVID-19 pandemic has undoubtedly impacted the lives of inmates who are incarcerated during the COVID-19 pandemic. Most apparent is the fact that, despite a Provincial Health Order for the mandatory physical distancing of at least two metres, inmates are most often detained in a cell within close proximity to a revolving door of other inmates.

In addition to being unable to physically distance from other inmates, the COVID-19 pandemic has further affected inmates’ time in custody in the following ways:

  • Increased lockdowns;
  • No family visitation;
  • Restricted access to legal counsel;
  • Reduced access to telephones;
  • Lack of programming for substance abuse, housing and counselling; and
  • Limited access to religious services.

A commonly asked question that Calgary criminal lawyers get during this time is: what remedies are available to an inmate who has been incarcerated during the COVID-19 pandemic?

What the Criminal Code says about Enhanced Remand Credit

Section 719 (3.1) of the Criminal Code, permits the court to grant enhanced remand credit of up to 1.5 times the time served (“1.5:1”) so long as the “circumstances justify it”. The cap on enhanced remand credit is 1.5:1 This was established by the Supreme Court of Canada decision of R v Summers, 2014 SCC 26.

The party applying for enhanced credit must establish, on a balance of probabilities, that the circumstances of their detention justify enhanced remand credit. Justification is commonly held under the following two rationale:

1. Since an inmate is eligible for remission once sentenced, an inmate usually serves only two-thirds of their sentence if serving in a provincial facility. One rationale for enhanced remand credit is to ensure that an inmate who is released after serving two-thirds of his or her sentence serves the same amount of time in jail, whether or not he or she was subject to pre-sentence detention.

2. The second rationale for enhanced credit accounts for the fact that remand detention centres tend not to provide the educational, retraining, or rehabilitation programs that are generally available when serving a sentence in corrections facilities. Additionally, remand detention centres tend to be subject to overcrowding and higher inmate turnover.

What this means is that you cannot ask the court to grant you enhanced remand credit above 1.1:5 even during the COVID-10 pandemic.

Eligibility for a Sentence Reduction pursuant to Section 24(1) of the Canadian Charter of Rights and Freedoms due to the COVID-19 Pandemic.

Section 12 of the Charter states that “everyone has the right not to be subjected to any cruel and unusual treatment and punishment.” In the Alberta Court of Appeal decision of R v Adams, 2019 ABCA 149, the accused argued that his time in the Edmonton Remand Centre was “qualitatively more harsh than would ordinarily be expected” (para 66). The Court held that the accused’s s.12 Charter rights had been breached. As a result, the court reduced the accused’s overall sentence to account for the fact that his experience in Remand custody was “worse than the norm” (para 96).

In order to be eligible for a sentence reduction under s.24 (1) of the Charter, an inmate must bring proper notice of their intention pursuant to the Constitutional Notice Regulation, which requires that a written application be made no later than 14 clear days before the sentencing hearing.

Section 718.1 of the Criminal Code: Is the impact of COVID-19 a Mitigating Factor on Sentence?

In the Alberta Court of Queen’s Bench Decision of R v Gordey, 2020 ABQB 425, the court reduced the accused’s overall sentence as the court held that the accused’s time in remand custody was a mitigating factor on sentence due to the COVID-19 pandemic.

Section 718.1 of the Criminal Code permits an offender’s sentence to be reduced if there are mitigating circumstances that relate to the offender or the offence. The court in R v Gordey held that adverse remand conditions during the COVID-19 pandemic fell short of a breach of the accused’s s. 12 Charter rights, however, held that the impact of the COVID-19 pandemic did rise to “level of mitigating circumstances” (para 66).

In R v Gordey, the court granted a further “credit of 112 days by way of acknowledging the mitigating circumstances surrounding approximately 90 days that the Accused was subject to the COVID-19 restrictions while in remand” (para 73).

How can a Criminal Defence Lawyer Assist?

If you are being sentenced during the COVID-19 pandemic make sure to discuss with your lawyer what, if any, impact the COVID-19 pandemic will have on your sentence. Consult with a Calgary criminal attorney early on to ensure that you comply with any statutory requirements. An affidavit outlining your experience in remand custody may also be required.

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