Nunavut judges disagree on how to sentence amid pandemic
Jail conditions harsher due to virus
• Three Nunavut judges, including the territory’s chief justice, are at odds over whether harsher prison conditions caused by the COVID-19 pandemic should be considered in sentencing.
One of them wants Ottawa to weigh in.
“Parliament’s inaction on the pandemic sentencing issue has led to judges stepping into the void,” Justice Paul Bychok wrote in the Nov. 17 sentencing of Karpik Kolola, a man convicted of sexual assault.
“Three Nunavut judges have now published three different opinions on this subject. This situation does nothing to provide certainty
and consistency to the law.”
Bychok rejected a request from Kolola’s defence lawyer to consider the effects of the pandemic in sentencing. She had argued that her client would experience custody “more harshly than it would have been had he been sentenced in a pre- pandemic world.”
When the pandemic start
ed, Nunavut’s territorial jails suspended all outside visits and were closed to the public. All new inmates had to complete 14 days of isolation when starting their sentences. The measures were lifted in June, but were reinstated Nov. 18 when increasing COVID-19 cases prompted a shutdown.
As of Friday, there were no cases in Nunavut’s jails. But offenders sentenced to more than two years are sent to a federal prison outside the territory. The Correctional Service of Canada has said 476 federal inmates in the country have tested positive for COVID-19 and two have died.
Bychok argued that without direction from Ottawa, judges don’t have any way to consider COVID-19 in sentencing.
“Parliament bears the responsibility to alter the law pertaining to pandemic- era sentencing if it deems it advisable and necessary. Nine months into the pandemic, Parliament has chosen not to do so,” Bychok wrote.
The office of federal Justice Minister David Lametti did not provide comment.
Bychok’s decision followed a September ruling from Chief Justice Neil Sharkey in the case of Gordon Pangon, which said that while the pandemic should be taken into account in determining a fit sentence, it should not automatically reduce it.
Sharkey ruled that people in custody waiting for a court appearance during the pandemic should not receive additional credit, because the Criminal Code doesn’t allow it.
The chief justice did urge judges in Nunavut to take COVID-19 into account when fixing a sentence. “This is not just the decent and humane thing to do, it also speaks to public health concerns — one less person in remand translated to less risk to the community.”
In August, Justice Susan Charlesworth took 60 days off Robert Campbell’s sentence for assault and drug-related offences because of conditions in the Baffin Correctional Centre, a medium-security jail in Iqaluit.
Other courts across the country are also grappling with the issue. A Superior Court of Ontario decision from Justice Renee Pomerance in April ruled that COVID-19 and “the increased risk of infection faced by inmates in Canadian jails” should be considered when sentencing.
“COVID-19 is not a mitigating factor in the classic sense. However, it adversely affects conditions of imprisonment, and increases health risks for those in jail. On that basis, it is an important part of the sentencing equation,” Pomerance wrote.