Bail conditions re-examined as virus strains justice system

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This article was published 23/03/2020 (2190 days ago), so information in it may no longer be current.

More accused offenders could win their release on bail, as justice officials juggle the safety concerns of inmates and staff in overcrowded jails with those of the community at large amid the novel coronavirus pandemic.

“It’s not a change in the law, it’s just a recognition of the current circumstances,” Criminal Defence Lawyers Association of Manitoba president Gerri Wiebe said Monday.

“Everyone knows that the institutions are pretty full on a regular basis, and the ability to take all the measures that we are being told to — to social distance and quarantine and all those sorts of things — are really not as possible in an institution,” she said.

“There is a recognition that we don’t want overfull jails at this time.”

On Monday, a Winnipeg man arrested on child-luring charges, just four months after he was released on bail for child pornography offences, was released on bail for a second time.

Provincial court Judge Lindy Choy said allowing Devan Gudmundson to live with his parents under what amounted to house arrest conditions was a safer option than keeping him in jail during the pandemic.

“I am inclined to grant release, but… it’s really these extraordinary circumstances that society finds itself in right now that is leaning in your favour,” Choy said. “There are exceptional circumstances in place right now with the COVID-19 pandemic, and there is a great strain on our prison systems and staff that work there.”

Gudmundson, 21, was arrested in November after investigators with the Winnipeg Police Service’s internet child exploitation unit were alerted that a suspect linked to a Winnipeg address had reportedly uploaded child sex abuse imagery to a cloud storage service. Investigators later found child pornography on two cellphones linked to Gudmundson, officials said.

Gudmundson was released on bail within days of his arrest, with requirements he not access the internet or social media, not possess a cellphone and have no contact with anyone under 18. He was rearrested March 11, after allegedly communicating online with a girl he thought was 14 and arranging to have sex with her. The “girl” was an undercover police officer.

Defence lawyer Lee Kellie-McMillan argued a strong release plan — which included $15,000 in sureties provided by Gudmundon’s parents and a promise to sweep their home of all internet-enabled devices, and an absolute curfew — coupled with the realities of the health crisis, supported releasing him on bail.

It’s a position supported by a recent written ruling from the Ontario Superior Court of Justice.

In a March 11 decision, involving a man accused of drug trafficking offences, Justice Jill Copeland ruled in cases where bail is opposed on the tertiary ground (release would bring the justice system into disrepute) the “greatly elevated” risk posed to inmates by the coronavirus must be considered.

“Based on current events around the world, and in this province… the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home,” Copeland wrote. “The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells.”

Addressing the Gudmundson case, Crown attorney Katie Dojack acknowledged the Ontario decision, but argued the nature of Gudmundson’s alleged crimes made him a greater potential threat than other accused’s ordered confined to their homes.

“Because we are dealing with an online offender… Here, socially distancing and self-isolation for the offender, if we look at an absolute curfew, could actually increase the chance that more kids are victimized,” Dojack said.

Choy said, however, she was satisfied “more restrictive” bail conditions would reduce any potential risk Gudmundson poses to the community.

Later, Wiebe said consideration of COVID-19 during bail hearings is “by no means a get-out-of-jail-free card.”

“I’m not hearing from anyone, that anyone who didn’t have a reasonable shot of getting out before, now all of a sudden is getting out,” she said.

The charges against Gudmundson have not been proven and he is considered innocent.

dean.pritchard@freepress.mb.ca