COVID-19 UPDATE FROM TARNOW CRIMINAL LAWLearn More

6 Years Later

It has been six years since Matthew de Grood was charged with the murders of five young people at a house party in Calgary, Alberta, and four years since he was found to be Not Criminally Responsible for those offences.

It was concluded that de Grood was suffering from delusions, attributed to undiagnosed schizophrenia, when he caused the deaths of five schoolmates from a local university. He has been in a secure psychiatric facility ever since.

As we have discussed in previous posts, a finding of NCR is neither a determination of guilt, nor an acquittal. It is the beginning of alternative proceedings, which ultimately seek to determine if/when an Accused person can be released back into the community. Like all individuals found NCR, de Grood is required to appear before the Review Board to assess his progress, and to evaluate what freedoms, if any, he may be granted as a result of said progress.

Back in 2016, the Crown suggested it would be making an Application to seek a “High Risk NCR” designation for de Grood. Had this designation been imposed, his appearance before the Review Board would have been extended to take place every three years instead of annually. However – it appears that the Application was never made. This was likely due to the fact that the relevant legislation – the Not Criminally Responsible Reform Act – did not go into force until July 11, 2014, nearly 3 months after the offences took place. As such, the law could not be retroactively applied to de Grood’s case.

At his recent hearing, de Grood’s counsel spoke of the progress he has made during his time at the psychiatric facility. He has been afforded the opportunity to spend the night at his parent’s home on several occasions, taking hospital transportation to and from medical appointments, and volunteering with Meals on Wheels. His counsel submits that de Grood should be granted an absolute discharge due, in part, to the progress he has made with his mental health issues, including being cooperative with taking his medication – and recognizing the devastating consequences that would come as a result of not taking it. He has also demonstrated a high level of remorse for his actions.

Defence counsel further acknowledged that de Grood’s case is extremely high profile. There are concerns regarding the public’s reaction to seeing him on public transit, and how he may face serious adversity in transitioning to a group home.  

The Review Board reserved its decision, and accordingly, de Grood remains in a psychiatric facility with heavy restrictions on his freedoms.

Intimate Partner Violence: Epidemic of a Pandemic

It goes without saying that the judicial system has been hit hard by COVID-19. This isn’t wildly surprising – there was no solid emergency response strategy in place for a situation like this, and as a result, a significant amount of time and resources have been expended to create a sense of control amongst the chaos.


It was acknowledged early on that certain individuals in the justice system would be disproportionately effected – accused persons in custody awaiting trial or sentencing, residents of remote communities that operate under a court circuit, and, of course, the victims in cases where there is uncertainty of if or when the case proceeds at all.

Since the World Health Organization declared a pandemic in response to COVID-19, law enforcement has tried to adapt where required. One of the most profound changes relates to the processing of newly accused individuals – and it may provide context into why intimate partner violence has surged during the pandemic. Between April 6 and May 6, 2020, 8 tragic incidents of domestic violence against women across Canada resulted in fatalities. There is, of course, no doubt about the fact that violence in relationships occurred before COVID-19, and will continue long after the pandemic is declared over – but there are aspects to a surge in intimate partner violence that are directly linked to the virus and to the policies that have been implemented when trying to process, manage, and supervise offenders.

Hundreds of accused persons awaiting trial in custody have been released, with chargeable offences ranging from assault, fraud, drug trafficking and beyond. Again, not surprising – as we’ve discussed previously on the blog, the correctional system serves as the perfect breeding ground for the virus, and it would be beyond cruel and unusual to take no action at all to protect those that are considered to be among the most vulnerable.

It’s the way that law enforcement has chosen to operate on a “catch and release” scheme in cases that would, under normal circumstances, require a bail hearing – and probably a highly contested one at that – that has likely contributed to domestic violence rates during COVID-19. Due to concerns about the nature of the virus and its ability to spread quickly, bail hearings have occurred less frequently, even with video-conferencing and telephone conferencing put into effect to streamline the process and protect the health of all parties involved. Instead of a bail hearing, an accused is more likely to be released on an Undertaking. The Undertaking may require that the accused check in with a bail supervisor weekly – something that is generally done on an in-person basis, where the most value lies in a face-to-face meeting – by telephone instead.

Aside from that, the “stay at home” order has, unintentionally, resulted in many victims of violence becoming prisoners in their homes. Public services like shelters and safe houses are stretched beyond capacity, and for some (especially people with underlying health conditions and people with children) entering into such an environment during a virus pandemic might seem even less tolerable than continuing to cohabitate with their abuser.

As with the other aspects of our lives – returning to work and school, chatting with our neighbors, planning vacations – the judicial system will, in one way or another, return to full operational capacity. But for those who have suffered the effects of intimate partner violence during the pandemic, there may be no return to the way things once were.

Mission Impossible: Managing COVID-19 in the Canadian Correctional System

On March 18, 2020, the BC court system responded to the coronavirus pandemic swiftly and without hesitation, reducing operations by the likes of which criminal counsel simply hasn’t seen before. Once it was confirmed how rapidly COVID19 spreads, the crowded confines of publicly accessed courtrooms were immediately deemed inappropriate – dangerous even. Since courtrooms often yield a congregation of some of society’s most vulnerable people, it made perfect sense to act defensively. These decisions, and many others effecting the justice system, were made only one week after the World Health Organization declared a global pandemic on March 11, 2020.

Unfortunately, there was a noticeable absence of urgency when it came time to protect the vulnerable inmate population overcrowded and totally confined within the walls of Mission Institution.


“In the worst-case scenario, CSC will need to order more body bags and find cold storage to stack up the bodies of those whose lives will be lost that could have been saved”Justin Piche, criminologist, Criminalization and Punishment Project at the University of Ottawa

On March 31, 2020, federal Public Safety Minister Bill Blair recommended that the Correctional Service of Canada (“CSC”) immediately consider the release of non-violent inmates to mitigate the unavoidable reality that the virus could, and would, devastate the wellbeing of prison populations. His recommendation came on the heels of the CSC announcing the first two positive COVID-19 cases in federal institutions in Quebec.

On April 4, 2020, the CSC announced 4 confirmed cases at Mission Institution, leading to a lockdown of the facility.  

By April 8, 2020, there were 11 confirmed cases, all inmates. Nearly one month had passed since the WHO declared a global pandemic.

By April 18, 60 inmates and 10 staff tested positive, and the CSC marked its first coronavirus related inmate death, exactly one month after the courts effectively shut down.

By April 25, 2020, 106 inmates and 12 correctional officers were confirmed to be infected, representing the largest outbreak in the Canadian Correctional System. On this date, the CSC advised that all inmates at Mission Medium Institution had been tested, but in any event, new cases were continuing to be discovered.

While disturbing, none of these developments are surprising. The largest incidence of outbreaks has been at long-term care homes – combining close quarters, limited mobility, and care-workers employed at more than one facility is a recipe for disaster when it comes to COVID-19, a pathogen that spreads and infects without discrimination. The same vulnerabilities exist within the correctional system, where they are intensified. Inmates and corrections staff are simply unable to practice crucial social distancing. Personal protective equipment for inmates has not been prioritized as it has in other sectors, despite these individuals being at a much higher risk of getting sick.

The CSC responded to COVID-19 by prohibiting visits to inmates, temporary absences, work releases, and inmate transfers between correctional facilities. While these steps likely helped to curb the spread of the virus, as a whole, they are grossly inadequate. Without a vaccine, social distancing remains our greatest defence against the virus. For the inmates at Mission Institution and those incarcerated at facilities across Canada, proper protective equipment is hard to come by, but hope is even harder.

Semi-Automatic: Fully Prohibited

On April 18 and 19 2020, Gabriel Wortman was solely responsible for the largest mass shooting in Canadian history, which claimed the lives of 22 innocent people including veteran RCMP Cst. Heidi Stevenson. Wortman, a 51 year old denturist, went on a rampage in Portapique, Nova Scotia using firearms that police suspect were obtained illegally, likely from the United States. Eventually he was cornered at a gas station and died in a shootout with police.

Just shy of two weeks later, Prime Minister Justin Trudeau announced a ban on approximately 1,500 different models of military grade assault-style weapons.  The announcement came as a surprise to no one – back in 2015, the Liberal government campaigned on promises to address gun violence. In addition to banning assault-style weapons, the Liberal government vowed to implement a buy-back program for prohibited firearms, establish red-flag legislation, impose tighter restrictions for proper storage of firearms and licensing, and to grant municipalities the power to ban handguns.

Trudeau’s announcement has sparked outrage among gun owners and enthusiasts, although overall most Canadians are in favour of stricter regulations regarding firearm ownership.

It’s important to understand what the ban actually applies to. It prohibits the sale, transport, import and use of semi-automatic weapons – Ruger Mini-14, M14 semi-automatic, Beretta CX4 Storm, and CSA-VZ-58 to name a few. Fully automatic weapons are already banned in Canada. Semi-automatic firearms were previously classified as either restricted or non-restricted, and will now be classified as prohibited.

So what do you do if you already have these in your possession? That depends.

Due to their classification as prohibited weapons, effected firearms will essentially become useless. In any event, gun owners will not be forced to relinquish them – but they will be provided with an incentive to do so. Though unclear at this point, the Canadian Government will be implementing a “buy back” program for all applicable firearms – aka, you’ll be paid to turn them over. For gun owners wishing to retain their firearms, there will be an option to be “grandfathered” into ownership. Certain terms and restrictions will apply, and will likely turn these weapons into collector’s items.

Unlike in the United States, our Charter does not include a constitutional right to bear arms

For those who choose to do nothing and simply retain their weapons, the consequences could be severe. Being found in possession of a prohibited firearm comes with the potential of spending years behind bars and a criminal record that could negatively impact employment and traveling prospects for life. The Canadian Government has instituted an amnesty period (waiting period) to allow for gun owners to consider their options. In any event, all gun owners must be in compliance, one way or another, by April 2022.

Though there is definitely a tight-knit community of lawful and responsible gun owners in Canada, the point of the ban is to limit access of tactical weapons among Canadians. Unlike in the United States, our Charter does not include a constitutional right to bear arms – so you can be sure that tighter regulations are on the horizon.

Access to Justice: An Essential Service

High on the list of things that have changed due to COVID-19 is our perception of what truly qualifies as an essential service – the transportation of goods by freight haulers, grocery stores and pharmacies, waste management and sanitation, and the list goes on. Service providers in these sectors are now being recognized for their significant contributions to our communities. In recent weeks, safety measures have been formulated and established, such as the installation of acrylic screens to act as a barrier between cashiers and customers, temporarily suspending the use of cash, and constantly monitoring supply stocks and evaluating the best methods to ensure that protective personal equipment is available to those working in healthcare.  

But what about the justice system?


On March 18, 2020, court operations were abruptly suspended in BC. Mass adjournments of almost all trials, for those detained and those awaiting trial free in the community, has created uncertainty for accused persons and for their counsel. It has also highlighted systemic flaws that have been dismissed for far too long.

The Court of Appeal of BC was the first to announce that, beginning May 4, 2020, appeals (all appeals, not just those deemed urgent) would be heard using the platform “Zoom”. A notice from the Chief Justice of British Columbia elaborated further and noted that the courts would use Zoom only until the government supplied a “permanent, enterprise videoconferencing solution”, lending likelihood to the idea that some of the interventions relied upon during the COVID-19 pandemic could become permanent adaptations.

COVID-19 emphasized the court systems’ vulnerability to interruption. At some point along the line, preference to proceed with business as usual was prioritized over adjusting to function optimally in a society that is increasingly reliant on digital mechanisms.

Currently, much of the paperwork involved in criminal proceedings is processed manually by court services staff (with the exception of some electronic documents) at the registry. Rules for fax filing vary by registry, which often creates confusion for counsel.

Here are some examples of what modernization could look like:

Change

Effect

Online court schedule for all levels of courtCounsel can manage their court schedule with more flexibility and can coordinate appearances in various jurisdictions with other counsel to maximize efficiency
Video-conferencing from correctional facilities to the office of counsel and to the courtClients have more personal interactions with their counsel. Visits to the correctional centre can be limited (not replaced completely). If those in custody can appear exclusively by video, it reduces the number of inmates being transported via vehicle, saving time, money, and sheriffs’ resources
Enhanced online filing for court documentsFewer issues with errors relating to form. Court services staff spend less time on data entry manual processing.
Digital court filesCourt services staff can access all materials in one system and forward materials as needed to judicial staff. Storage of materials digitally saves an enormous amount of space. Archived files can be easily obtained rather than being stored “offsite”. Enhanced security for all files. Counsel could access court documents, such as a Record of Proceedings, online instead of having to make requests to court services staff
Digital disclosure transferAll disclosure would be digitized, allowing law enforcement, crown counsel, court staff, and defence counsel to exchange documents without delay. Significant reduction in paper usage and courier/postage costs.

While other sectors prioritize adopting innovation, the court system has all-but ignored important opportunities for tech reform. Budgetary limitations are a frequent excuse. And of course, cost is an important factor – but it should not override value. The technology exists and has the potential to be extremely advantageous in the courtroom, and is often utilized more frequently in more remote jurisdictions such as Prince George, BC and throughout the Yukon Territory. Due to the logistical difficulties associated with residing in a remote location, video-conferencing is often used at trial for out-of-town witnesses.  

Before the era of social distancing and COVID-19, there seemed little reason to forge ahead towards modernization with any sense of urgency – the old adage “if it ain’t broke, don’t fix it” comes to mind – but now, we simply don’t have a choice.