Recent B.C. sentencing sheds light on justice under the pandemic

Sentencing under COVID-19

The recent sentencing of an armed robber in Prince George, who's now moving to the Okanagan, shines some light on how judges are balancing concerns over COVID-19 in Canadian prisons with the need to separate offenders from society.

This week, Judge Cassandra Malfair accepted a joint submission from Crown and defence counsel, sentencing 24-year-old Kyler Stevens to time served for robbing a man and woman inside a Prince George hotel room with a hammer and imitation gun in December 2018, injuring the victims in the course of the robbery. He was on probation at the time.

With enhanced credit for just under two years of time served, Stevens was released from custody on three years probation that sees him banned from being within 100 kilometres of Prince George. As a result, Stevens told the court he would move to Penticton to live with a family member.

While Judge Malfair said a fit sentence for Stevens, given the crime and his significant criminal record, would usually start at four years of incarceration, he ultimately accepted a joint submission that's significantly lower. While Stevens' defence and the Crown argued the risk posed by COVID-19 in some of Canada's prisons warranted the reduction in sentence, Judge Malfair rejected this rationale.

In her reasons for sentencing, Judge Malfair referenced a letter from the Assistant Deputy Minister of Public Safety and Solicitor General.

“The letter explains that inmates are likely more vulnerable than the general population of contracting or transmitting COVID-19 due to the confined conditions of jail,” Judge Malfair said. “B.C. Corrections is taking a number of steps to mitigate this risk through the imposition of a number of protocols, but seeks co-operation from other participants in the criminal justice system to reduce the prison population by considering alternatives to incarceration for individuals who are not a public safety risk.”

Judge Malfair said Stevens, who she considers “a public safety risk,” does not have any particular health issues that would make a prison sentence during the current pandemic “unduly harsh or punitive.”

In her reasonings, Judge Malfair referenced an Ontario Supreme Court judge who said in late March that COVID-19 has not created a “get out of jail free card,” but that sentencing during COVID-19 becomes “a question of balance.”

“Even in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in the various institutions, while at the same exercising the balancing required to sustain its fundamental role in the administration of justice and protection of the public," Ontario's Justice Andrew Goodman said.

Despite rejecting the COVID-19 reasoning, Judge Malfair accepted the joint submission of time served, equalling just under two years with enhanced credit.

“I cannot reject the joint submission only because the proposed sentence is not fit,” she wrote. “I may only depart from the joint submission if the proposed sentence is contrary to the public interest or would bring the administration of justice into disrepute.”

Stevens will be under probation conditions for the next three years while living in Penticton. These conditions include a curfew between 10 p.m. and 6 a.m. for the first year, and avoiding a 100 km radius from the Prince George. Stevens was also handed a lifetime firearms prohibition.

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