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Excerpted From: Terry Skolnik, Criminal Law During (and After) COVID-19, 43 Manitoba Law Journal 14 (2020) (212 Footnotes) (Full Document)

TerrySkolnikThe pandemic is changing everything, including criminal law. In order to prevent the transmission of COVID-19, governments are employing various coercive measures that aim to limit the virus' spread. Police officers are enforcing Criminal Code provisions, provincial health laws, and by-laws for conduct such as coughing on others and disobeying physical distancing guidelines. These measures generate profound civil rights concerns and raise crucial questions about the criminal law's breadth, its expansion during emergencies, and the future of Canada's criminal justice system.

This article explores the impact of COVID-19 on three areas of Canadian criminal law: the scope of certain crimes, bail, and sentencing. It argues that legal responses to the pandemic expose the severity of problems such as overcriminalization, pre-trial detention, and disproportionate punishments that have plagued the criminal justice system for decades. However, COVID-19 has also resulted in certain positive changes to the criminal law that can catalyze a shift away from overly punitive criminal justice policy and practice. Justice system actors are developing innovative ways to address the above-mentioned problems and decrease overreliance on the criminal law. This article explores these changes and shows why they should persist beyond the pandemic. It advances three main arguments.

First, the pandemic creates a serious risk of overcriminalization because courts may expand the breadth of crimes such as assault, aggravated assault, and inchoate offences. In line with other scholars' suggestions, this article demonstrates why it is objectionable for judges to transpose the legal framework applicable to the criminalization of communicable disease transmission into the context of COVID-19. Second, the emergence of COVID-19 is forcing courts to rethink bail and recourse to pre-trial detention. The pandemic has altered how judges conceptualize the tertiary ground that justifies remand in custody, which assesses whether the defendant's detention is necessary to maintain public confidence in the criminal justice system. Courts must now accord greater importance to the defendant's interests in interpreting the concept of “public confidence” and must truly examine all of the alternatives to pre-trial detention. Third, COVID-19 requires justice system actors to reconsider the harms associated with various punishments. The pandemic illustrates the shortfalls of retributivism and sheds new light on why disproportionate financial penalties are objectionable.

This article is structured as follows.

Section II provides an overview of COVID-19 and Canada's response to the pandemic.

Section III explores the dangers of expanding the breadth of various crimes. Against the historical backdrop of over-criminalizing HIV non-disclosure, it sets out the problems associated with extending that framework to COVID-19.

Section IV shows how COVID-19 has forced courts to recommit to the presumption of innocence and increasingly mandate pre-trial release. After providing an overview of recent case law developments, it explains how COVID-19 has led courts to reinterpret the tertiary ground in bail decisions and revisit the notion of “public confidence”.

Section V concludes the article by examining how COVID-19 is shifting the criminal justice system away from imprisonment and why the State should not impose disproportionate financial penalties on defendants, both during and after the pandemic. In line with emerging case law, it proposes a range of schemes that accommodate the realities of COVID-19 into custodial sentencing and shows why day fines (or graduated economic sanctions) are preferable to traditional fines.

Although COVID-19 risks imperiling civil liberties and expanding police officers' powers, it has also forced courts to embrace a greater commitment to the presumption of innocence, pre-trial liberty, and non-custodial punishments--developments that can persist once the pandemic subsides. This article demonstrates why justice system actors are in the midst of a unique historical opportunity to implement lasting positive changes to the Canadian criminal justice system and ultimately, take meaningful steps towards alleviating many of its worst problems.

[. . .]

This article argued that COVID-19 is impacting three major areas of the criminal law: the scope of certain criminal offences, bail, and sentencing. It demonstrated why the unique context of the pandemic has highlighted some of the most problematic aspects of the Canadian criminal justice system. The emergence of COVID-19 provides novel insight into why courts must restrict the breadth of certain crimes, grant reasonable bail, and limit recourse to custodial sentences. In some respects, the pandemic has forced various justice system actors to demonstrate a renewed commitment to bedrock criminal law principles, such as the presumption of innocence, pretrial liberty, and proportionality in sentencing--hallmarks of a more liberal and enlightened criminal justice system. Ultimately, COVID-19 provides compelling new justifications for why the state and criminal justice system actors must rely less heavily on the criminal law.

Much remains to be seen about how the pandemic will evolve and how the criminal justice system will respond. Although courts must carefully safeguard our most precious civil and political liberties during this crisis, it should not miss this unapparelled chance to permanently implement positive changes to the criminal justice system and address some of its most egregious aspects. Judicial responses to the pandemic not only illustrate the possibility of embracing a less punitive criminal justice system both during and after COVID-19, but also show how we can take meaningful steps in that direction.

Assistant Professor, University of Ottawa, Faculty of Law, Civil Law Section.

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