any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.
So, assume that a trial judge allows a victim/witness to testify with a service dog sitting with him in the service box. Would this create undue sympathy for the victim and prejudice the defendant? This was the question addressed by the Appellate Court of Illinois, Second District, in its recent opinion in People v. Tapley, 2020 WL 7417620
In Tapley, David J. Tapley, was charged with aggravated criminal sexual abuse against R.L., a minor. Before trial,
the State filed a motion in limine to allow R.L., who was 16 years old at the time, to testify in the presence of her “facility dog.” The State alleged that R.L. suffered from PTSD as a result of defendant’s abuse and that R.L. had a facility dog that accompanied her everywhere. The State alleged that R.L. had previously suffered from PTSD episodes that affected her ability to go to school and communicate effectively but that the use of the facility dog had enabled her to attend school again. The State alleged that it had reason to believe that R.L. might suffer a PTSD episode while testifying that would prevent her from reasonably communicating with the jury.
The court granted the motion, and Tapley was thereafter convicted. Subsequently, Tapley appealed, claiming, inter alia, “that the dog’s presence violated his right to a fair trial because it created undue sympathy for R.L.” The court disagreed, finding that
“[a]ll of the courts which have examined a challenge to the use of a comfort dog in a courtroom have concluded that the dog’s presence is not inherently prejudicial.” Commonwealth v. Purnell, 233 A.3d 824, 836 (Pa. Super. Ct. 2020). In particular, the Washington Supreme Court examined this issue in the context of a facility dog in State v. Dye, 309 P.3d 1192 (Wash. 2013). The defendant there argued that, among other things, the dog’s presence improperly bolstered the main witness’s credibility by giving his testimony an “‘aura of truth and sympathy’” and that the dog made the witness look pitiful and like a victim who was telling the truth….The court stated that none of the defendant’s theories had any basis in the record and that defense counsel had conducted an extensive cross-examination of the witness….It further stated that “whatever subconscious bias may have befallen the jury was cured by the trial court’s limiting instruction, which cautioned the jury not to ‘make any assumptions or draw any conclusions based on the presence of this service dog.’”…Similarly, in People v. Tohom, 109 A.D.3d 253, 268 (N.Y. App. Div. 2013), the court concluded that a facility dog’s accompaniment of the 15-year-old alleged victim “did not adversely affect the defendant’s due process right to a fair trial or compromise his constitutional right of confrontation.” The court stated that it was not unmindful that the dog “may have engendered some sympathy for [the witness] in the minds of the jurors,” but it noted that there was “no proof that such sympathy was significantly greater than the normal human response to a child’s testimony about his or her sexual abuse at the hands of an adult.”…The court further noted that the trial court instructed the jury not to allow sympathy to enter into its considerations, especially with respect to an outside factor like the facility dog.
Applying this analysis to the case at hand, the court concluded thatA similar analysis applies here, with even greater consideration given to R.L.’s position because she requested the dog’s presence under the ADA. The trial court had to balance defendant’s right to a fair trial with R.L.’s rights under the ADA and as a minor who was a victim of sexual abuse. Indeed, according to the record, R.L. allegedly suffered from PTSD in the first place because of defendant’s actions….We also note that the Supreme Court of Illinois Policy on Access for Persons with Disabilities states that the “Court will honor the choice of the individual, unless it demonstrates that another equally effective accommodation is available, or that the requested accommodation would result in a fundamental alteration of Court activities or undue financial and administrative burdens.”…The trial court had a gate installed on the witness box to obstruct the jury’s view of the dog and held a separate hearing with the dog present so that the parties could view how the dog would be seated next to R.L. during the trial. R.L. and the State disclosed that the dog would probably get on her lap while she testified, because it was one of the dog’s “commands” when R.L. was anxious, and the trial court stated that R.L. should minimize that as much as possible. The trial court further stated that R.L. would be seated with the dog before the jury was brought in and that, after her testimony, the jury would leave the courtroom before R.L. and the dog got up. Before R.L. testified, the trial court instructed the jury in detail regarding the dog, stating: “Ladies and Gentlemen of the Jury, I want to instruct you at this time that the witness has a service dog with her while she testifies. You are not to draw any inference in favor or against either side because of the dog’s presence. And the focus of your attention should be on the testimony of the witness. The presence of the service dog in the courtroom shall not be considered in any way in the jury’s deliberations or verdicts.”
Police can no longer search cars without a warrant unless there is both probable cause to believe a crime occurred and emergency circumstances that require immediate action, the Pennsylvania Supreme Court ruled in an opinion That’s a reversal for the court, which in a 2014 opinion in the case Commonwealth v. Gary had cleared the way for warrantless searches.
The 4-3 decision said the state constitution’s privacy protections are greater than the U.S. Constitution’s and that those protections extend to vehicles. “Difficulties in clarifying the scope of the exigency requirement will lead to debates about what exactly the Pennsylvania Constitution demands in a given situation. But so what?” wrote Justice Christine Donohue, referring to the state’s constitutional language on searches. The Supreme Court of Pennsylvania decision consists of a majority opinion, a concurring opinion, and three dissenting opinions (here, here, and here).
Chris Rudnicki has posted Implicit Bias and Racial Profiling: Why R V Dudhi’s Novel ‘Attitudinal Component’ Imposes an Unjustifiable Burden on Complainants ((2020) 68:4 Crim LQ 410-428) on SSRN. Here is the abstract: In the recent case of R v Dudhi [2019 ONCA 665], the Ontario Court of appeal recognized that racial profiling in Canada is “as difficult to prove as it is pernicious.” This paper contends that the Dudhi court, perhaps inadvertently, has rendered the task yet more difficult by introducing the “attitudinal component” to the racial profiling test. By requiring racial profiling claimants in the criminal context to establish that the officer accepts that race or racial stereotypes are relevant to offending or dangerousness, the Dudhi court imposes a new and unjustified burden. I conduct a post-Charter review of the jurisprudence and academic literature to show that this requirement finds no support in the racial profiling precedents, in critical race scholarship, or in the scientific literature on social cognition and implicit bias. I conclude the paper by sketching some possible responses that may assist claimants in overcoming this novel hurdle to racial profiling claims.
The Ohio Supreme Court Has overturned an order requiring man convicted of failing to pay child support to the mothers of his 11 children to “make all reasonable efforts to avoid impregnating a woman” while on probation: You can access the ruling of the Supreme Court of Ohio at this link.
While almost all state courts closed their doors to the public in March when Covid-19 began to spread across the country, several jurisdictions resumed some in-person proceedings over the summer with certain safety precautions. However, due to the recent spike in Covid-19 cases, some state courts are closing their doors again for the time being.
At least eight states, including Texas, Indiana, and New Jersey, are opting to suspend their in-person jury trials until early next year, and at least seven states and Washington D.C. have suspended jury trials indefinitely. For example, in Utah, the state halted a pilot program to hold in person jury trials until 2021. Unlike the beginning of the pandemic, most states have not issued statewide orders regarding court operations, leaving those decisions to local jurisdictions.
Court administrators expect a massive backlog of cases when they eventually resume full in-person operations. For example, Texas would typically hold 186 trials a week prior to the pandemic, but there were only 50 trials held between March and September of 2020. The backlog leaves many defendants awaiting criminal trials to linger in prison, where a person is twice as likely to die from Covid-19 as compared to the general population.
On December 10, the U.S. Supreme Court rejected a constitutional challenge to Delaware’s partisan balance requirements for its judiciary, holding the lawyer who brought the challenge lacked standing.
The case, Carney v. Adams, involved a challenge to provisions of Delaware’s constitution requiring that no more than a “bare majority” of judges on certain courts belong to the same political party, and for the state’s highest courts, that all judges not in the majority be a member of the other “major party.” The Third Circuit Court of Appeals struck down both requirements last year, finding that the “major party” requirement violated the First Amendment.
Writing for the majority, Justice Breyer said the Court did not consider the constitutionality of Delaware’s partisan balance requirements because the lawyer who brought the challenge was not “able and ready” to apply for the judgeships he claimed he was excluded from. Justice Sotomayor, however, filed a concurrence suggesting the “major party” requirement may be unconstitutional, noting it “arguably impose[s] a greater burden on First Amendment associational rights.”
Jackie Fielding has posted ‘Wreaking Extraordinary Destruction’ : Defendant’s Irreplaceability as Presumptively Reasonable Grounds for Downward Departure in Sentencing (Minnesota Law Review, Vol. 104, No. 5, 2020) on SSRN. Here is the abstract: Despite the media attention afforded to the recent family separation crisis at the southern border of the United States, there is a much more prevalent and common form of family separation: parental incarceration. The United States is the largest incarcerator worldwide, and the surge in the incarceration of women has meant a dramatic increase in the incarceration of parents who are primary caregivers. United States federal sentencing law allows for consideration of family support and caregiving, but such consideration is limited in scope and usage. In the U.S. Federal Sentencing Guidelines, which are not binding but are advisory for federal judges, Section 5H1.6 states that a defendant’s “family ties and responsibilities are not ordinarily relevant” to a downward departure analysis. The current federal sentencing structure in 18 U.S.C. § 3553(a) allows for some consideration of a defendant’s history and characteristics, but judges often employ an analysis similar to the “not ordinarily relevant” inquiry. Unclear parameters for evaluating a defendant’s role as a family supporter and caregiver under these statutes, and inconsistent applications of the “not ordinarily relevant” test, have resulted in disparate outcomes across the country. While numerous solutions have been offered to create better policies, more uniform application, and less unnecessary incarceration of parents, many require too much work for implementation on a mass scale.
This Note advocates for a pattern already employed by several federal courts, in which a defendant’s irreplaceability as a caretaker or provider is the primary factor in a family ties and responsibilities downward departure analysis.By solidifying a presumption that a defendant’s status as an irreplaceable caretaker of dependent(s) is reasonable grounds for downward departure, courts can continue following a path of precedent that works to ensure parents will not be unnecessarily incarcerated, and their children and dependents will not be needlessly separated from their loved ones.
California Defeated the Bail Ballot, Unsure of What’s Next
The group behind the “no” vote on Proposition 25 wasn’t against it because they like the state’s cash bail system. They just wanted to enact reform from the ground up. But now there’s uncertainty about what happens next.
Jason Pohl, The Sacramento Bee | November 6, 2020 | Analysis
(TNS) — Lex Steppling and his team of criminal justice activists knew they wanted to undo California’s law abolishing cash bail. They said it would merely replace one oppressive system with another, worsen racial inequities and give too much power to algorithms and judges.
They were convinced they were right. But he didn’t think they’d actually defeat Proposition 25 — especially not by a nearly 11-point margin.
“We didn’t expect to win, let alone win by so much,” Steppling said in an interview. “I’m still wrapping my head around that part.”
The victory marked a surprising end to an unlikely marriage between an extreme “abolitionist” wing of the criminal justice reform movement and California’s billion-dollar bail bond industry. Traditionally enemies, together they undid a years-long effort from the California Legislature that could have created one of the most significant justice system changes in a decade.
The longstanding system of cash bail will remain in place indefinitely. As Steppling and others say they plan to push for county-by-county changes, the type of top-down change that would have followed Proposition 25 is on hold as uncertainty sweeps through the now-fractured criminal justice reform movement.
Advocates said Wednesday they were “poised to build our system anew.” But those advocates are facing severe criticism, including from more moderate justice reformers. They’re also feeling the pressure of a familiar problem: Once something is repealed, what exactly do you replace it with — and how?
Steppling is the co-chair of the No on Proposition 25 campaign and an advocate with Dignity and Power Now, a Los Angeles nonprofit that has sued the sheriff’s office over jail conditions, rallied against new jail construction, and pushed for taking funding away from police departments. They want to see radical, grassroots improvements to the justice system.
“Our fixation is not simply on bail,” Steppling said, criticizing the existing power that judges and police have. “We want to make a transformative change that disables the drivers of pretrial incarceration.”
Proposition 25 — and SB 10, the legislation it was a referendum on — came after years of work in the California Legislature to make that change. Besides doing away with cash bail, it would have brought mandatory audits to measure racial biases. The changes, which lawmakers could adjust as needed, could have opened a window into an often opaque system of justice where little information about cash bail bonds is ever made public.
By Thursday evening, roughly 55.6 percent of the counted vote was in support of keeping the current cash bail system indefinitely. No county south of Santa Cruz in the Bay Area supported Proposition 25. It was a resounding defeat and in sharp contrast to two other justice system measures that passed — one expanding voting rights to people on parole and another blocking tough-on-crime proponents’ plan to make stiffer penalties for low-level offenses.
“It was a case of the kind of far left and far right converging and not a lot of space left in the middle to get rid of cash bail,” said Keramet Reite, a criminologist at UC Irvine.
Proposition 25’s failure will likely cast a long shadow on justice reform in California. Lawmakers are barred from taking another crack at cash bail that is similar to the one voted down Tuesday. They might also be hesitant to take it up again, saying the voters have already spoken.
That has longtime advocates on edge.
“You fear what you think you can’t change,” said Sam Lewis, head of the Anti-Recidivism Coalition, among the most active criminal justice reform organizations in California. Lewis, who was released in prison in 2012 after serving 24 years, was among the fiercest supporters of Proposition 25. He said he thought the killing of George Floyd would have made people want to dismantle the system now more than ever.
“Instead,” Lewis said, “we kept a system that’s steeped in racism and criminalizes poor, black and brown people because we were afraid.”
What Happens Next?
Steppling’s organization says it has a plan to improve the jail system from the ground up. It’s unclear how exactly that plan would roll out and how much it could be deployed in counties across the state.
The replacement, he said, “does not begin and end in Sacramento.”
“If we let our sense of possibility be mediated by electeds, we would never get anywhere,” Steppling said. “We have to create a roadmap to something different, and then actually organize and do that work and build community pressure.”
Steppling said his group will work to replicate programs in other places like the one they helped push in Los Angeles County calling for jail diversion programs.
County-by-county, they plan to push a plan called Preserving the Presumption of Innocence. The plan calls for non-law-enforcement groups to evaluate people’s risk, counties to collect better data, and law enforcement to only detain people accused of serious or violent felonies. It is modeled, in part, from the bail reform law voters shot down Tuesday.
Sen. Robert Hertzberg, D- Los Angeles, who wrote SB 10 and has championed bail reform, was unconvinced that Steppling’s work would be successful. He said his yearslong effort that culminated with Proposition 25 was, in fact, a grassroots effort with people across the state. It prompted new county-level public safety assessment programs and was the type of sweeping change to state law that is needed for a broken system.
“The only way to solve this is at a statewide level,” he said. “You can’t fix the bail system on a county by county basis. It just doesn’t work. It has no legal authority.”
State-level bail fights aren’t over. The California Supreme Court has a case pending that would force judges to consider a defendant’s ability to pay bail before setting it. The Humphrey case could force a reckoning about how high bail is set, eroding some of the industry’s profits. It’s why Hertzberg said that, despite Proposition 25 failing, the bail industry “is on life support and the oxygen is running out of their tank.”
Any grassroots successes would also be scattered, said Jonathan Simon, a professor at UC Berkeley who studies law enforcement and was against Proposition 25. A so-called progressive prosecutor movement, like in San Francisco and Los Angeles along with other local reforms in the years since public safety realignment could prompt the kind of change Steppling described.
San Francisco District Attorney Chesa Boudin has committed to new policies targeting racial disparities in the justice system that include ending gang enhancement charges and charges where police find contraband through “pretextual” traffic stops. And in Los Angeles, George Gascón is leading in the race to head the largest district attorney’s office in the country on a progressive platform that includes eliminating cash bail.
“There’s plenty of opportunity for bail reform at the local level,” Simon said. “Counties can decide to adopt some level of this.”
It also means that conservative counties, such as Kern in Southern California or those in the north state — can ignore the changes altogether, indefinitely.
“That’s going to mean that some counties have some really regressive arrest and bail policies,” Simon said.
A Long Fight to Tuesday
For decades, California lawmakers have mulled ways to dismantle the cash bail industry, which is seen widely as unfairly harming lower-income families and people of color.
Judges generally follow what’s called a bail schedule, a preset grid that has dollar amounts attached to specific crimes. Those who do not have the money to post bond wait in jail for their case to end, whereas those with resources can get released.
Bail bond companies fill the gap in the middle for people who don’t have thousands of dollars on hand to pay to get out. Bond companies charge a fee — typically 10 percent — and arrange with the courts to have the defendant released from jail. The money is nonrefundable.
“We do not want bail being used as a form of punishment,” said Topo Padilla, president of the Golden State Bail Agents Association who has long said the problem is not with his industry but with local justice systems. “We do not want bail to be used to keep people in jail longer.”
Research has found minority communities and even families of domestic violence survivors can end up bearing disproportionate costs of cash bail. A Sacramento Bee investigation last month found that domestic violence survivors are paying cash to get their family members released from jail — a cruel twist in a pandemic that has devastated local economies.
Former Gov. Jerry Brown signed a bill into law in August 2018 that would have brought a sledgehammer to the system. To address concerns from groups like Steppling’s about racial bias in the risk assessments, lawmakers passed SB 36. They vowed to keep chipping away at the system to make things just and fairer.
Hertzberg wrote the 2018 law and last year’s addition aimed at repairing a broken system that benefits the bail industry.
“It may not be perfect, but we have the ability to come in and fix it. Let’s just get rid of the bail industry,” Hertzberg said in an interview Wednesday. “As much as they wanted to say they were for justice, they were for greenbacks, they were for money. That’s all they cared about. And that’s their business, I understand it, but it doesn’t make it right.”
That system fought back. Faced with the prospect of being outlawed, the state’s 3,200 licensed bail bondsmen and 7,000 employees gathered signatures for a referendum. With ample support from other groups, they collected enough signatures to put the future of the law up to the voters.
Soon came the unlikely marriage.
“Proposition 25 was not going to help get people out of jail, it was going to keep people in jail,” Steppling said. “And in some cases, many cases, thousands of cases, keep people in jail with no way out.”
“It was truly an honor to fight shoulder to shoulder with civil rights groups and law enforcement against this misguided legislation,” Jeffrey J. Clayton, Executive Director of the American Bail Coalition.
Reliable research about the effects of bail reform is hard to come by, in part because getting access to data is so fragmented.
But Heather Harris, a researcher at the nonpartisan Public Policy Institute of California who has extensively studied bail said roughly 11 percent of Latinos and 2 percent of African Americans would have likely been released sooner than they currently are.
While some people might have been detained slightly longer, the vast majority of suspects would have been released faster — risk assessments could propagate existing inequities, but those could be mitigated with other policies.
“Although our research does not address the question of whether risk assessment would have led to racially biased pretrial release decisions,” Harris reiterated Wednesday, “it does indicate that replacing money bail with a structured release process, would have mitigated some racial disparity in pre-arraignment release.”
‘It’s Just Easier to Say No’
As summer turned to fall this year, doubts were cropping up inside the Proposition 25 camp about whether California voters would stand against a well-heeled cash bail industry. They were getting increasingly worried that Steppling’s coalition of far-left activists would sow confusion about the existing problems with cash bail and the way to fix it.
Polling from the UC Berkeley Institute of Governmental Studies found that 39 percent of likely voters would keep the new law in place while 32 percent would vote to maintain cash bail, the LA Times reported Oct. 1. Nearly three-in-10 people were undecided.
Confusing wording and the potential for ballot fatigue heightened the anxiety for supporters.
“No question. It was a tough fight for us going in,” Hertzberg said. “I think it was a lot of confusion. You get a lot of drop off when you get to the end of the ballot. And it’s just easier to say no.”
Meanwhile, Steppling’s coalition of nonprofits grew and the bail industry watched the division grow. The ACLU of Southern California said it was opposed, as did Human Rights Watch, the California Black Chamber of Commerce, and the California NAACP State Conference.
The ruckus did more than simply split voters — it fractured the criminal justice reform movement, said Lewis, with the Anti-Recidivism Coalition. That tension might not disappear any time soon, even while all activists agree on the need to get rid of cash bail somehow.
“We don’t try to take over the leadership and try to say we know what’s best,” said Lewis with the Anti-Recidivism Coalition. “There’s segments that caused this split. … Was it a perfect bill? No. But it was the first step at really ending cash bail.
The only certainty for many people ahead of today’s election is that social media will be blamed, whether for spreading misinformation or unyielding censorship. But this also means that change is likely to follow.
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In federal court and most state courts, Manson v. Brathwaite, 432 U.S. 98 (1977), sets the standard for the admissibility of eyewitness identification evidence.
Under Manson, courts apply a two-part test to determine the admissibility of eyewitness identification evidence, addressing first whether police identification procedures were “unnecessarily suggestive” and, if so, weighing specified factors in deciding the “linchpin” issue of whether the eyewitness identification was nonetheless sufficiently reliable to satisfy federal due process requirements….Although the Manson reliability test has been widely adopted among state courts,…it has come to face ever-increasing criticism from legal scholars as a result of major advances in scientific knowledge of eyewitness memory, perception, and recall, knowledge that contradicts many of the analytical assumptions underlying the rule.
Based on these concerns, the Supreme Court of New Mexico adopted new standards for the admission of eyewitness identification evidence.Specifically, in State v. Martinez, 2020 WL 6791529 (N.M. 2020), the Supreme Court of New Mexico held that Article II, Section 18 of the New Mexico Constitution affords broader due process protection than the United States Constitution in the context of admission of eyewitness identification evidence. In conducting eyewitness identification procedures, law enforcement agencies are required to adopt and follow scientifically supported protocols and practices to minimize mistaken identification. In addition, our holding in this case implicates three aspects of eyewitness identification law in New Mexico.First, we adopt a new standard for determining whether eyewitness identification evidence is admissible at trial. Under the new standard, if a witness makes an identification of a defendant as a result of a police identification procedure that is unnecessarily suggestive and conducive to misidentification, the identification and any subsequent identification by the same witness must be suppressed. The question of whether the identification is “unnecessarily suggestive” focuses not only on the identification procedure itself but also on whether the police have a “good reason” to use a suggestive identification procedure in the first place. Second, we abandon as legally and practically unsound the independent source doctrine, which has been applied in New Mexico…to permit the admission of an in-court eyewitness identification if its source is ostensibly independent of an inadmissible out-of-court identification.Third, when a defendant files a pretrial motion to suppress eyewitness identification evidence, the initial burden is on the defendant to show some indication of suggestiveness in law enforcement’s administration of the eyewitness identification procedure. Upon making this showing, the burden shifts to the state to prove by clear and convincing evidence that either (1) the procedure employed was not so suggestive as to materially taint the identification made by the eyewitness, which is to say that any departure from proper procedure could not have increased the risk of misidentification, or (2) good reason existed for the police to employ the suggestive procedure in the first instance. If the state fails to carry its responsive burden, the identification and any subsequent identification by the same witness must be suppressed.
These are terrific reforms in light of the fact that “[m]istaken eyewitness identifications contributed to approximately 69% of the more than 375 wrongful convictions in the United States overturned by post-conviction DNA evidence.”Hopefully, other states will soon follow suit in adopting more stringent standards as well.
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.
blog.amjudges.org 