COVID-19 shouldn’t be a get-out-of-jail-free card, Nunavut’s top judge rules

Harsher territorial jail conditions caused by the COVID-19 pandemic don’t always mean convicted offenders in Nunavut should get reduced sentences, Justice Neil Sharkey said in a written ruling released last week.

In the judgment, which is likely to influence how other Nunavut judges approach COVID-19, Sharkey, the territory’s chief justice, made repeated references to public opinion.

“I am of the view an informed and sympathetic public does not support the blanket proposition that all jail sentences during the time of COVID-19 should be reduced because of restrictive prison conditions and/or the increased risk of infection to the offender,” Sharkey said.

At the same time, he said the threat that COVID-19 poses to inmates is a legitimate factor judges must think about.

“COVID-19 should be taken into account when arriving at a fit sentence,” Sharkey said.

“The pandemic should not, however, operate as an automatic reduction of sentence, or allow a specific reduction to an otherwise fit and proper sentence,” he said.

Sharkey noted that since the onset of the pandemic, conditions inside jails and prisons everywhere are now harsher.

That’s because more inmates spend longer periods in restrictive lockdowns and isolation periods intended to protect them from infection, and receive fewer programs and fewer visits from family members and counsellors.

Despite that, inmates in jails and prisons across Canada are still at greater risk of infection than people outside because of cramped quarters and shared sleeping, dining and toilet facilities, Sharkey said.

This creates a greater risk for the surrounding community also—a risk that can get worse should prison populations increase.

“Prison health is therefore widely considered to be public health,” Sharkey said.

He also said taking COVID-19 into account is part of “a collective sense of decency and humanity to people who have already suffered an increased risk of exposure to the virus,” and that “one less person in prison presents less risk to the greater public.”

So it’s within this context that Nunavut’s top judge considered the sentencing of Gordon Pangon, 27, a Cambridge Bay man who pleaded guilty this past July 31 to two counts of assaulting his spouse and two counts of breaching bail conditions.

Pangon has served jail time in the past for previous spousal assaults.

Crown and defence lawyers, in a joint submission, proposed Pangon serve a total sentence of 180 days in jail—six months—followed by 18 months on probation.

Sharkey then reduced that time to account for the 66 days Pangon spent in custody at the Rankin Inlet healing facility waiting for the court to deal with his charges.

Using a ratio of 1.5 days for each day spent in remand custody, Sharkey shaved 100 days off Pangon’s 180-day sentence, leading to 80 days of actual jail time.

But Sharkey rejected a defence request for an additional sentence reduction, based on the 14 days of COVID-19-related isolation that Pangon had to undergo when he first entered the Rankin Inlet jail.

Based on the standard 1.5 to 1 ratio, that would produce a further sentence reduction of 21 days.

After a lengthy discussion of recent court judgments, including a decision made by Justice Susan Charlesworth early this year in a case involving Robert Campbell, an Iqaluit man convicted on a string of assault charges, Sharkey said no.

Charlesworth had shaved 60 days off Campbell’s sentence because of the harsher COVID-19 conditions of his remand incarceration.

But Sharkey said he differs from the view that Charlesworth expressed in that judgment.

“I do not favor deducting a specific amount of time from an otherwise fit and proper sentence simply because of restrictive conditions which may be in place on the day the offender is sentenced,” he said.

That’s because jail conditions may change as correctional officials adjust their rules based on the changing nature of the pandemic.

And Sharkey also said he doesn’t like the idea of departing from a sentence an offender has already agreed to in a joint submission.

Sharkey’s COVID-19 judgment is dated Aug. 5, 2020, but it wasn’t sent to media until Sept. 17.

R v Pangon, 2020 NUCJ 30 by