Sentencing And COVID

Thanks to Judge Wayne Gorman:

In R. v. McKibbin, 2020 BCCA 337, November 18, 2020, the accused was convicted of the offence of trafficking in a controlled substance.  At his sentence hearing, evidence was presented establishing that the accused was suffering from chronic obstructive pulmonary disease (“COPD”).  

A period of six months of imprisonment was imposed.  The sentencing judge declined to impose a suspended sentence based upon the accused’s medical condition. The accused was granted bail, pending the hearing of his appeal from sentence. 

On appeal, the accused presented evidence indicating that were he “to contract COVID-19, his vulnerability would accelerate, thereby worsening his health”, possibly causing him “early death compared to other people without respiratory problems”.

The appeal was allowed and the sentence varied to a six month suspended sentence. 

The British Columbia Court of Appeal held that if “it were not for the unusual global circumstances currently existing” there would have been “no basis upon which to interfere with that sentence” (at paragraph 1).  However, the Court of Appeal concluded that made no sense “to require that he be re-incarcerated, particularly when the numbers of infections are reaching an all-time high in this province” (at paragraphs 24 and 25):

The evidence before us is that not only would serving the sentence be harsher, but if he contracted COVID-19, it could well lead to an early death, which in my view does amount to circumstances justifying a suspended sentence. Normally, the prison authorities would be delegated the responsibility of managing a prisoner’s illness in the prison, and they are usually equipped to do so. However, given that Mr. McKibbin faces a significantly higher risk of death if he contracts COVID-19 because of his serious pre-existing respiratory disease, and given that he has a very short time left to serve in his sentence, it makes no sense to me to require that he be re-incarcerated, particularly when the numbers of infections are reaching an all-time high in this province. If he is at home, Mr. McKibbin can control who he has contact with, something that he cannot do in the prison setting.

This is an unusual case. The sentence imposed by the sentencing judge was without error, and but for the fresh evidence, I would not interfere with the sentence. It is also unusual in the sense that it is not just the COVID-19 pandemic that has changed the sentencing landscape, but the pandemic in the context of Mr. McKibbin’s serious respiratory illness, which makes him much more susceptible to serious COVID-19 symptoms, including death.

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