Put pros­e­cu­tion of petty crim­i­nals off to the side

Now is not the time to fill up our jails, Joe Kil­lo­ran says.

Vancouver Sun - - OPINION - Joe Kil­lo­ran is a crim­i­nal de­fence lawyer with Jensen Law in Kam­loops. He also serves on the board of direc­tors of Kam­loops El­iz­a­beth Fry So­ci­ety, a group which ad­vo­cates for the rights of fe­males in the crim­i­nal jus­tice sys­tem

Across the coun­try, Cana­di­ans are mak­ing ex­tra­or­di­nary ef­forts to prac­tise phys­i­cal dis­tanc­ing to slow the spread of the COVID-19 virus. Un­for­tu­nately, th­ese prac­tices are im­pos­si­ble to im­ple­ment in Canada’s jails and pris­ons where crim­i­nal­ized peo­ple are grouped to­gether in small ar­eas.

Con­se­quently, it should sur­prise no one that the virus has spread among prison em­ploy­ees and staff. The first case in a B.C. jail was iden­ti­fied this week, sev­eral in­mates and cor­rec­tional of­fi­cers have tested pos­i­tive in Que­bec and On­tario, and more are al­most cer­tain to fol­low. While Cana­dian jails and pris­ons have al­ways been in­ef­fec­tive in their goal of re­ha­bil­i­tat­ing in­mates and in­hu­mane in their treat­ment of pris­on­ers, they now con­sti­tute a clear and present dan­ger to the health of the public.

B.C. Cor­rec­tions has just be­gun to re­lease some low-risk in­mates who are close to the end of their sen­tences. This is a wise and nec­es­sary step but the jus­tice sys­tem must take fur­ther mea­sures to en­sure the safety of pris­on­ers, cor­rec­tions em­ploy­ees, and the Cana­dian pop­u­la­tion. With that in mind, po­lice should avoid ar­rest­ing any­one who is not a dan­ger to the safety of another hu­man be­ing. Catch­ing drug users and pre­vent­ing crimes against prop­erty must take a back seat to pro­tect­ing public health. When po­lice of­fi­cers must make an ar­rest, they should con­sider re­leas­ing ac­cused peo­ple on the scene when­ever pos­si­ble.

Sim­i­larly, po­lice and prose­cu­tors should have to meet a higher stan­dard for charge ap­proval. For ex­am­ple, in B.C., Crown coun­sels must al­ready con­sider whether pur­su­ing a charge is in the public in­ter­est. During this cri­sis, they should re­ceive di­rec­tion that petty thefts and drug of­fences should not be charged and that th­ese low-level of­fend­ers must not be jailed. The crim­i­nal code al­ready pro­vides prose­cu­tors with the op­tion of pur­su­ing al­ter­na­tive mea­sures such as resti­tu­tion, a let­ter of apol­ogy, or re­fer­rals to spe­cial­ized pro­grams such as coun­selling. While th­ese mea­sures are of­ten lim­ited to young or first-time of­fend­ers, their use should be ex­panded for this emergency.

The public in­ter­est de­mands jail be used as a last re­sort. The pros­e­cu­tion of petty crim­i­nals, of ques­tion­able value at the best of times, is ter­ri­ble public pol­icy during a pan­demic. Th­ese of­fend­ers, many of whom have ex­ist­ing health prob­lems, are of­ten in jails or cor­rec­tional cen­tres for short sen­tences or pe­ri­ods of time prior to their bail hear­ings. This make them ideal can­di­dates to spread the virus and means their move­ments be­tween jail and so­ci­ety are dan­ger­ous.

More im­por­tantly, while many peo­ple imag­ine “crim­i­nals” as depraved and di­a­bol­i­cal mas­ter­minds, the truth is most petty crim­i­nals are among the most bro­ken, abused, ad­dicted, men­tally ill, and vul­ner­a­ble mem­bers of our so­ci­ety. None of them de­serve a pos­si­ble death sentence for man­i­fest­ing the en­tirely pre­dictable con­se­quences of the trauma they have ex­pe­ri­enced. In the case of In­dige­nous pris­on­ers who make up a hugely dis­pro­por­tion­ate per­cent­age of peo­ple in Cana­dian jails, this trauma is usu­ally the re­sult of Canada’s op­pres­sive colo­nial poli­cies.

If ar­rests must be made, then the grounds for seek­ing bail must be amended for the du­ra­tion of this cri­sis. Crown coun­sels can seek some­one’s de­ten­tion on three grounds: 1) They are un­likely to at­tend their next court ap­pear­ance; 2) they are likely to re­of­fend; 3) their de­ten­tion is nec­es­sary to main­tain public con­fi­dence in the jus­tice sys­tem. Go­ing for­ward, de­ten­tion should only be sought when the ac­cused is deemed to be a threat to the phys­i­cal safety of another Cana­dian, and the onus ought to be on the Crown to prove this threat. Given the emergency cir­cum­stances, it is dan­ger­ous to risk spread­ing this virus in or­der to de­tain sho­plifters or peo­ple with drug ad­dic­tions, even if they are likely to con­tinue us­ing drugs, shoplift, miss court dates, or breach pro­ba­tion con­di­tions.

All Cana­di­ans are en­ti­tled to “se­cu­rity of the per­son,” ac­cord­ing to the Char­ter of Rights and Free­doms. In prac­tice, this means the gov­ern­ment is not per­mit­ted to take actions that threaten an in­di­vid­ual’s health or bod­ily in­tegrity. It is dif­fi­cult to imag­ine a graver vi­o­la­tion of this right than forc­ing Cana­di­ans to face a height­ened risk of se­ri­ous ill­ness or death. Per­haps the “rea­son­able lim­its” clause of the Char­ter could be em­ployed to make the ar­gu­ment that mur­der­ers or other dan­ger­ous of­fend­ers must be con­fined to pro­tect the public. How­ever, it is un­con­scionable that petty crim­i­nals must en­dure th­ese risks and the dread that ac­com­pa­nies in­car­cer­a­tion at this time.

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