The fact that programming is on hold during the pandemic is taken into account with sentencing in two ways: 1) in determining how much credit to allocate based on pre-trial custody; and 2) in assessing a fit term for a prison sentence, as collateral consequences of any period of incarceration that would make it harsher.
In Nunavut, and elsewhere, it seems like most Indigenous programming in prison has been put on hold for months, including the examples of Elder counselling and family visits. Mr. Campbell plead guilty to a string of charges all committed in Iqaluit. A Pre-Sentence Report was ordered. Unfortunately, the date for his sentencing was cancelled by the COVID-19 pandemic effect on the operation of Court Services.
Following his time in custody, Mr. Campbell will be given a probation order for 18 months, to help his rehabilitation. In assessing his sentence, the Court considered the fundamental principle that the sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. Over a period of almost six months, Mr. Campbell assaulted five separate individuals in four separate locations across Iqaluit, from well-known businesses to private residences. Each individual offence was relatively low on the gravity scale. However, two of the offences are statutorily aggravating because of the young age of one victim and the domestic nature of the previous relationship with another victim.
The Court must also consider the purpose of sentencing set out in s. 718 which is to impose just sanctions that have one or more of these objectives: denunciation, deterrence of the offender and others, separation if necessary, rehabilitation, reparation and promoting a sense of responsibility in offenders. Mr. Campbell’s guilty plea shows he is taking responsibility for these offences and intends to work on rehabilitating himself. The pre-sentence report outlined some Gladue factors that also need to be considered in this case, per s. 718.2(e).
Mr. Campbell has now been in custody for a little over five months and is entitled to credit for that time. The issue is whether and how to account for the effect of COVID-19 on prison conditions and what, if any, sentencing considerations should be made on account of such conditions. Time in custody during the current pandemic, depending on public health and geographic realities, may be harsher time in custody than usual. This is so not only because authorities have put in place restrictions to try to keep inmates safe, but also because of the general uncertainty about the present and future wellbeing of individuals and society.
These changes due to the pandemic are to protect inmates and staff at the institution, where public health measures such as social distancing are not readily available. Protecting the inmates and staff then also protects the public in Iqaluit. The measures are imposed even though the Territory continues to be “COVID free” because that status could change at any time. In Nunavut where programming is often available for prisoners, punishment is also increased by loss of programs as well as family visits. These restrictions will continue going forward.
Mr. Campbell’s time spent in custody will be harsher for an unknown period of time. He has been given the maximum allowable amount of credit for his pre-sentence custody. In these circumstances, it is appropriate to reduce Mr. Campbell’s sentence going forward by 60 days because of the harsher conditions of his incarceration.