Some people have complained on social media that COVID-19 is being used as a get-out-of-jail-free card by criminals who deserve to be behind bars. Such pronouncements are far too simplistic, with no regard for the harsh realities of the bail system in Canada.

Many people are unaware that roughly half of all inmates inside Ontario jails are not serving a sentence. That is, while half the prison population is incarcerated because they were either found guilty following a trial, or because they plead guilty to an offence, the other half have not been found guilty of anything. They have simply been charged with an offence, and if they were denied bail, they must remain in jail until their trial, despite their innocence.

Most people are familiar with the phrase “innocent until proven guilty.” That said, abstractly thinking about principles of justice is not the same as thinking about them as they apply to a real person. Imagine an actual person, with a family, friends, maybe a job, responsibilities, likes and dislikes. They are charged with an offence and exercise their right to a trial. Pre-COVID, if this individual had been denied bail, they would wait a minimum of 6-12 months for a trial. During COVID, the same person will wait in jail for an indefinite amount of time, considering that all trials have been cancelled, and courts are not even currently setting dates for trials (and haven’t been doing so since mid-March).

Jails are harsh places, which are often plagued with deaths, overcrowding, and other human rights violations. Jails were a terrible place to be before COVID. But since COVID, jails have cancelled inmates’ visitation with family and friends; cancelled all group activities such as religious worship or therapy, and what little free time inmates had pre-COVID has also been restricted further, especially if the inmate is under quarantine for suspected or confirmed COVID. These inmates get a half-hour a day out of their cell.

Most importantly, incarceration means an almost complete inability to practice social distancing, which medical experts have identified time and again as the best method for halting the spread of the virus. Due to COVID, individuals who were denied bail and need a trial end up maintaining their innocence at potentially the cost of their own life. Is this a reason to grant someone bail when they might otherwise not get bail? From a moral standpoint, the answer is yes. The answer is many times also yes from a legal standpoint.

Judges do not make legal decisions based on how they feel. They make legal decisions by applying the law to a specific accused. In the law of bail, an accused can only be denied bail for one of three reasons (or combination thereof). The “primary ground” refers to concerns about the accused fleeing. The “secondary ground” refers to concerns that there is a substantial likelihood the accused would re-offend if released AND the offence would endanger the safety of the public. “The tertiary ground” considers whether releasing the accused would cause the public to lose confidence in the administration of justice. The tertiary ground looks at things like the seriousness of the offence and how strong the evidence is against the accused.

In the law of bail, details about the accused’s life and the proposed plan for release must be considered when referring to any of the three grounds. Details about the accused include things like whether the accused has any addiction issues, mental health issues, whether they are Indigenous or a Person of Colour, or whether they have any dependents. This is not an exhaustive list. Details about the proposed plan for release include things like whether the proposed surety would actually report the accused to the police if the accused breached their bail terms, and whether the surety and accused even have the type of relationship where the accused would listen to the surety. The point is that, even before COVID-19, judges had to consider many factors.

In the COVID bail context, judges are taking into consideration the global pandemic when determining if an accused ought to be given bail. But they are doing so because, from a legal standpoint, they have to. Judges are not simply saying “COVID is bad, so you’re free to go.” A legal analysis is undertaken in every case. In the borderline cases where the law, applied to the particular accused, does not lean largely toward detention or release, the health pandemic factor may tilt the balance toward release. But that balancing of factors is what the law of bail is all about and has always been about. And despite COVID, some people are still being denied bail.

If you or someone you know has been charged with an offence or is currently incarcerated and would like to try for bail or a bail review, please reach out to the team at DeMelo Law as soon as possible.