While health and legal professionals continue to urge governments to depopulate jails and prisons, Ontario judges are struggling to decide how much the COVID-19 pandemic should influence their decisions to release or detain people accused of and convicted of crimes.

This is a once-in-a-lifetime event and there isn’t a body of case law to help judges navigate the issue, said Daniel Brown, a Toronto defence lawyer and vice-president of the Criminal Lawyers’ Association.

And a review of recent bail decisions in Ontario exposes a “momentous divide” within the judiciary, he said.

“Some judges have rightly recognized that otherwise healthy inmates are at risk of catching and spreading the virus within the jails, while others are demanding proof that a prisoner is at a higher risk... due to their age or health, before considering the virus as a factor favouring their release.”

Earlier this week, Ontario Superior Court Justice David Harris, who sits in Brampton, needed no convincing about the potential lethality of COVID-19 when he ordered release on bail for a man accused of criminal harassment, assault threatening death, discharge a firearm and break-and-enter. Leaving that man in jail would put him in “one of the most dangerous places imaginable” during the pandemic, he said.

Harris wrote that he made his decision — which followed an audio-conference last week — with “considerable reluctance.” On three prior occasions, the man’s request for release had been denied.

The Crown continued to oppose the man’s release. He had been in custody for 17 months and his trial is scheduled for September.

Details of the allegations against him are covered under a publication ban.

COVID-19 has “radically altered” the proper application of the Criminal Code’s “touchstone” tertiary ground to refuse bail when releasing an accused might undermine public trust in the system, Harris wrote.

“The Canadian public understands the momentous nature of this crisis,” he wrote. “In the public’s mind, the real and tangible threat of contracting the virus may well supplant the otherwise negative reaction to the release of an accused person.”

Harris acknowledged that he had considered the contents of a briefing note Crown attorneys have been filing in such detention-related cases. The briefing note, prepared and regularly updated by the Ontario Solicitor General, sets out what measures have been taken to combat the virus inside the province’s jails, and gives a summary of testing and cases inside.

The April 1 note said Ontario had implemented several strategies “to limit the effects of COVID-19 on our inmate population and correctional staff.” Those included reducing the number of people locked up by 24 per cent by April 1, a reduction of more than 2,000 inmates.

After summarizing the testing numbers, the memo states: “Given the size of our population, this is currently a very small risk factor.”

Those efforts, Harris wrote, “however laudable they may be, cannot change the high level of risk within a correctional institution. That there are not many cases yet is of little consequence. The virus starts in one person but then can run like wildfire through an entire population. It can then be carried outside of the institution by the staff. That is the nature of a pandemic and of contagion. It can take hold at any time.”

In a separate decision also released this week, an Ottawa judge released a female prisoner after finding she did not need to demonstrate “that her particular circumstances put her at greater risk in the jail than other inmates.”

But, as Brown noted, other judges are looking for evidence that a person is vulnerable to the disease before granting bail.

Last week, after a two-day teleconference hearing, Superior Court Justice Faye McWatt refused to release an imprisoned man facing firearms offences.

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While noting that COVID-19 is seriously affecting this community, she disagreed that inmates were at a more elevated risk of contracting the disease than the general population, calling those conclusions “based on speculation and not on evidence.”

The judge, who also considered the Ontario Solicitor General briefing note, found it “incumbent” that someone seeking bail should file at least rudimentary evidence that he or she suffers from underlying health conditions that would make him or her more susceptible to the virus.

Another decision last month, by Superior Court Justice Mark Edwards in Newmarket, also rejected a coronavirus-related bail application from an accused robbery suspect, noting that he did not have any underlying health conditions and was relatively young.