Time Served in Criminal Sentences and COVID-19

Published On: Mar 27,2020

COVID-19 and Early Release from Custody
COVID-19 and Early Release from Custody

In Regina v. Kandhai2020 ONSC 1611, the accused pled guilty to possession of a prohibited firearm with accessible ammunition and breach of a s.109 firearms prohibition. The COVID-19 pandemic led the judge to bring the matter forward.

The court observed that jail was a “state mandated congregation of people” and the COVID-19 pandemic was a significant factor in sentencing. Justice required this matter to be brought forward immediately to impose the time served sentence. The Court made the following comments:

[7]         Hardship in serving a jail sentence has always been a proper consideration in crafting an appropriate sentence. There is no specific evidence before me as to the effects on Mr. Kandhai, but there need not be. It is obvious at least up to a certain degree. The entire country is being told to avoid congregations of people. A jail is exactly that, a state mandated congregation of people, excluded from the rest of the population by reason of their crimes or alleged crimes. The situation, which has led to drastic measures in society at large, is bound to increase day to day hardship in prison and the general risk to the welfare of prison inmates.  Given how much time he has served thus far in custody, it is in Mr. Kandhai’s interest and the public’s interest as well, that he be released at this point in time.  

[8]         Furthermore, given my approach to the relevant sentencing principles in this instance, finalizing the disposition now rather than on March 30, 2020 has obvious logical advantages. Other factors which have led to this disposition will be spelled out in my full reasons. In a non-exhaustive summary, they include the need for enhanced credit to recognize lockdowns to which Mr. Kandhai has been subjected, his guilty plea to the two counts which counsel agreed should be deemed to be early pleas, and an assault suffered by Mr. Kandhai at the hands of other inmates on February 19, 2020 at the Toronto East Detention Centre. I have viewed this troubling incident on the videotape exhibit supplied by the defence.

The judge exercised discretion under s.650(2)(b) to impose the sentence in the accused’s absence, “on such conditions as the court considers proper” on the basis of the exceptional circumstances brought about by COVID-19 and the virtual closure of the Superior Court.  Criminal lawyers in Alberta have also recently called for the early release of prisoners from custody (See: https://globalnews.ca/news/6727714/prison-covid-19-measures-alberta/)

If you have been charged with a criminal offence or are currently in custody awaiting your sentence, contact Mr. J.S. Patel, Barrister at 403-585-1960.