Recent sentences reflect pandemic concern as legal system deals with COVID-19

A Sault Ste. Marie judge imposed reduced jail sentences in two recent court cases because of the COVID-19 pandemic that is expected to cause thousands of deaths in this country.

Ontario Court Justice Romuald Kwolek sentenced one man to a further four months in custody for offences that included an unprovoked attack that knocked the victim unconscious, giving him a concussion.

A second man received a sentence of time served for property offences — mostly petty thefts.

Kwolek also placed the offenders on the lengthiest period of probation permitted under the Criminal Code of Canada.

In both cases, he said "those locked up in close quarters will be at risk if an outbreak occurs in an institution."

He noted "there appears to have been a concerted effort to release from custody those individuals who do not pose a risk to the safety of the public."

The two hearings were conducted earlier this month via teleconferencing, lawyer Bruce Willson, who represented both accused, said in an interview.

The judge was in a courtroom, while the accused was linked to the proceedings by video from the Algoma Treatment and Remand Centre.

The Crown and defence participated from locations where they were social distancing.

Kwolek later issued written decisions.

The "sentences were reduced considerably" from what the Crown was seeking "due to COVID," Willson said.

The veteran defence lawyer said the courts are trying to deal with people who are in custody in the jail waiting to plead or be sentenced. 

On April 3, Joshua Wilson, 25, pleaded guilty to a number of counts, including the most serious offences of assault causing bodily harm and unlawfully being in a dwelling house.

The court heard he entered the victim's residence, hit the man on the left side of the head. The victim fell and struck his head on a TV stand.

Assistant Crown attorney Stuart Woods called for an 18-month sentence, less credit for five months pre-sentence custody, and a period of probation.

Willson suggested that his client should be sentenced to time served, plus a conditional sentence, which would be served in the community, and probation.

He told Kwolek that Wilson, who has been in custody since Nov. 25, was being housed in the west wing of the jail, where inmates are double bunked.

The defence argued that although a lengthier period of incarceration may normally be warranted, "we are in exceptional circumstances due to COVID-19 and any jail sentence should consider the pandemic as a factor."

Kwolek said that given the aggravating factors — a crime of violence that caused the victim to suffer a concussion in an unprovoked  assault in his home — it is clear a period of incarceration is necessary to denounce the accused's actions, to deter others and to protect the public. 

Considering all the factors and "the current world crisis regarding COVID," he said he was imposing nine months, less credit for five months pre-trial custody and a lengthier period of probation (the maximum of three years).

Jordan McConnell, 28, pleaded guilty to 10 Criminal Code and three drug offences on April 7.

Kwolek heard the Wawa detachment of the Ontario Provincial Police were called to an auto dealership, where someone had broken into a cruiser on Nov. 16.

A number items, including handcuffs and a DNA kit, were taken.

McConnell was subsequently connected to a number of other thefts and when he was arrested he had small amounts of clonazepam and methamphetamine.

Prosecutor Karen Pritchard sought a 15-month jail term, less credit for pre-sentence custody, and probation.

Willson maintained a sentence of time served (just short of seven months), plus probation, was appropriate.

In his decision, Kwolek noted the Crown had provided the court with an April 6 document, described as "Information Note"-Institutional Services response to COVID-19.

"The document is at best a snapshot in time, assuming such document is accurate, about the state of correctional facilities and COVID," he said.

"It does indicate a minimum number of positive test results for inmates and staff at that date."

The document pointed out there has been a reduction of inmates in custody at provincial institutions, "describing a 26-per-cent reduction, over what time period is not clear," the judge said.

"There have reportedly been concerted efforts to reduce individuals incarcerated including proactively attempting to release inmates who have less than 30 days remaining in their sentence."

Kwolek said the document also reports that "when safely feasible, non-custodial options are considered by the court for individuals charged with non-violent or less serious offences."

He questioned whether further incarceration is necessary for McConnell at this time.

The accused's offences are many, but are mostly petty thefts from vehicles and were part of a 24-hour spree fueled by addiction, the judge said.

He is being "sentenced in the middle of pandemic for property offences," Kwolek said.

Kwolek imposed time served (the equivalent of seven months) and the maximum three-year probation period.

"Courts have taken the view, given the risk faced by individuals who are incarcerated, those who do not pose risk to society should be released if such a disposition is possible and appropriate," he said.

Given McConnell has no history of violent offences, and has already spent seven months in jail, "there is nothing to be gained and much to lose by continuing his incarceration," Kwolek concluded.