The courthouse in Iqaluit is shown on Wednesday, Oct. 7, 2020. Three Nunavut judges, including the chief justice, are at odds over whether prison conditions caused by the COVID-19 pandemic should be considered when sentencing offenders in the territory. THE CANADIAN PRESS/Emma Tranter

Nunavut judges disagree on how to sentence offenders during pandemic

IQALUIT — 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 started, 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 pandemic conditions in the Baffin Correctional Centre, a medium-security jail in Iqaluit.

Other courts across the country are also grappling with sentencing during the pandemic.

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.

Lisa Silver, a law professor at the University of Calgary, said it’s a judge’s job — not Parliament’s — to consider factors such as COVID-19.

Judges have the power to factor in “extraordinary circumstances,” Silver said.

“On one hand, (judges) have the circumstances of the case and the seriousness of that case and the culpability of an offender as it relates to what they did. But they also have to consider, who is this person before me in the court and what effect will this sentence have on them?

“Parliament looks to judges to exercise their discretion because they have that person before them. They have the circumstances of the case before them. They have counsel’s submissions before them. And they should be aware of what public interest is.”

Joao Velloso, a law professor at the University of Ottawa, said the answer is in Section 718.2 of the Criminal Code that deals with sentencing: “An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.”

“I think it’s quite explicit, not only due to COVID, but it’s something that’s quite usual to see in sentencing,” Velloso said.

He also disagreed with Bychok that Parliament should provide direction over pandemic sentencing.

“There is no void. Judges, in theory, should take into consideration the alternatives to incarceration, especially considering the circumstances.”

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

RCMP have charged a Sylvan Lake man for allegedly defrauding five people of more than $100,000.
Advocate file photo
20-year-old woman killed in collision: Blackfalds RCMP

A 20-year-old woman was killed in a collision on Saturday, says Blackfalds… Continue reading

Patrick Malkin, co-owner of The Granary Kitchen, says he wants the provincial government to lift COVID-19 restrictions that shutdown in-person dining. (File photo by Advocate staff)
Red Deer restaurant owner ‘frustrated’ in-person dining restrictions are still in place

Dr. Deena Hinshaw announced the restrictions won’t yet be eased this past Thursday

As of Friday, Alberta has under 10,000 active COVID-19 cases. (Image courtesy CDC)
Alberta identifies 573 new COVID-19 cases, 13 deaths on Saturday

There are currently 9,727 active cases of the virus in the province

A firetruck sits in front of a home on Harvey Close in Red Deer Saturday afternoon. (Photo by Sean McIntosh/Advocate staff)
Firefighters respond to Red Deer fire

Red Deer firefighters responded to a blaze in the north part of… Continue reading

(Courtesy photo)
Red Deer rental prices drop slightly

Renting an apartment in Red Deer became slightly cheaper last month.… Continue reading

Terrance Josephson of the Princeton Posse, at left, and Tyson Conroy of the Summerland Steam clash during a Junior B hockey game at the Summerland Arena in the early spring of 2020. (John Arendt - Summerland Review)
QUIZ: How much do you know about hockey?

Test your knowledge of Canada’s national winter sport

A woman injects herself with crack cocaine at a supervised consumption site Friday, Jan. 22, 2021 in Ottawa. THE CANADIAN PRESS/Adrian Wyld
Drug users at greater risk of dying as services scale back in second wave of COVID-19

OTTAWA — Under fluorescent lights, Wendy Muckle surveys the supervised consumption site… Continue reading

The Canada Revenue Agency (CRA) headquarters Connaught Building is pictured in Ottawa on Monday, Aug. 17, 2020. nbsp; THE CANADIAN PRESS/Sean Kilpatrick
Taxpayers’ watchdog sees complaints spike, raising worries about pandemic tax season

OTTAWA — Canada’s taxpayers’ ombudsperson says his office has seen a steep… Continue reading

Wet'suwet'en supporters and Coastal GasLink opponents continue to protest outside the B.C. Legislature in Victoria, B.C., on Thursday, February 27, 2020. THE CANADIAN PRESS/Chad Hipolito
‘We’re still in it’: Wet’suwet’en push forward on rights recognition

Tensions had reached a boiling point over a natural gas pipeline in… Continue reading

An Uber driver's vehicle is seen after the company launched service, in Vancouver, Friday, Jan. 24, 2020. Several taxi companies have lost a court bid to run Uber and Lyft off the road in British Columbia. THE CANADIAN PRESS/Darryl Dyck
Taxi companies lose court bid to quash Uber, Lyft approvals in British Columbia

VANCOUVER — Several Metro Vancouver taxi companies have lost a court bid… Continue reading

Lights on an internet switch illuminate a network cable in an office in Ottawa, Thursday, February 10, 2011. A Federal Court is ordering Canada's internet service providers to block websites for a company that's offering pirated television streaming online. THE CANADIAN PRESS/Adrian Wyld
‘Deeply disturbing:’ Nunavut internet still slower, more costly than rest of country

IQALUIT, Nunavut — In Nunavut, it’s not unusual for the internet to… Continue reading

RCMP say missing teen Hope Tivendale has been found. (File photo by Advocate staff)
No foul play suspected after burned body of homeless person found in North Vancouver

VANCOUVER — A burned body, believed to be of a homeless person,… Continue reading

The central zone experienced a spike in the number of COVID-19 cases Thursday, rising from 454 to 508 active cases over the past 24 hours, with 10 people in hospital. (THE CANADIAN PRESS/Darryl Dyck)
Spartan Bioscience says Health Canada has approved its rapid COVID-19 test

TORONTO — An Ottawa company says it’s received approval from Health Canada… Continue reading

Most Read