Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Pangon, 2020 NUCJ 30

Date: 20200805
Docket: 21-20-51, 21-20-38
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Gordon Pangon

________________________________________________________________________

Before: Chief Justice Sharkey

Counsel (Crown): J. Tremblay

Counsel (Accused): W. McDiarmid

Location Heard: Iqaluit, Nunavut

Date Heard: July 31, 2020
Matters: Sentencing for assault and breach of bail conditions under
the Criminal Code of Canada, RSC 1985, c C-46; COVID-
19 sentencing considerations

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

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TABLE OF CONTENTS

I. OVERVIEW........................................................................................................ 3
II. THE COVID-19 ISSUE ..................................................................................... 5
III. THE CURRENT STATE OF THE LAW ............................................................ 6
A. Remand credit............................................................................................... 6
B. The length of a sentence .............................................................................. 7
IV. THE CASE BEFORE THE COURT ................................................................. 8
A. The offender and the charge ......................................................................... 8
B. The sentence imposed .................................................................................. 9
C. The Defence request for additional reductions in sentence due to COVID-19
.......................................................................................................................... 9
(i) Respecting additional or enhanced remand credit..................................... 9
(ii) Respecting an additional reduction from the total sentence.................... 10
V. ANALYSIS ...................................................................................................... 11
A. The decision in Mr. Pangon’s case ............................................................. 11
B. Respecting additional enhanced remand credit based on COVID-19 ......... 12
C. Respecting COVID-19 sentence reductions ............................................... 13
(i) Remand in the time of COVID-19: a more robust approach .................... 15
VI. SHOULD JAIL SENTENCES GENERALLY BE SHORTER BECAUSE OF
COVID-19? ......................................................................................................... 21
VII. CONCLUSION.............................................................................................. 26
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I. OVERVIEW

[1] This case deals with prison sentences during the time of COVID-19
(regardless of whether there are active cases in Nunavut or not).

[2] Persons in prisons face a greater risk of infection than the general
public. By extension, infections in prisons add to the risk of infection in
the greater community.

[3] Conditions in prisons are harsher than they were pre-COVID. In order
to minimize infection, prisons across Canada have implemented
restrictions on inmate activities, associations, counselling
opportunities, and visits from friends and family.

[4] The World Health Organization says that the greater vulnerability of
persons in prison to exposure calls not just for government solutions,
but societal solutions.

[5] This case deals with what credit can or should be given for time spent
on remand during COVID-19 awaiting a court appearance. It also
deals with whether jail sentences should be shorter in duration
because of COVID-19.

[6] I have no jurisdiction to allow additional or enhanced remand credit

during COVID-19 beyond that already allowed by the Criminal Code.
Only a successful constitutional challenge to the current limitation
would allow for additional enhanced remand credit.

[7] I do, however, urge a more robust judicial approach or appreciation of

remand in the time of COVID-19. I suggest that if an inmate has
served a significant or substantial time on remand commensurate with
the sentence that would otherwise be imposed, then the sentencing
judge should consider releasing the offender with a sentence equal to
the credited remand time, with or without probation to follow.

[8] The notion that inmates will voluntarily “stack up time” on remand in
hope of serving less or no further time is myth except for rare
instances. Generally, the prospect of an uncertain future is such that
offenders are anxious to end their remand time.
 4

[9] Provided public safety is not compromised I believe there is public

support for the notion that if the offender has already been punished
by an increased risk of exposure to the virus, then time spent on
remand in many cases should serve, however imperfectly, as a
sufficient penalty.

[10] This is not just the decent and humane thing to do, it also speaks to
public health concerns—one less person in remand translates to less
risk to the community.

[11] However, I do not think that even an informed and sympathetic public
is prepared to accept the proposition that all jail sentences should be
reduced because of the pandemic. Restrictions in jail are greater
because of COVID-19. At the same time, massive changes have
taken place restricting the liberties of all people. Accordingly, COVID-
19 should not operate to automatically reduce the length of a jail
sentence.

[12] Nor do I think that specific chunks of time should be deducted from an
otherwise fit and proper jail sentence simply because certain
restrictive conditions are in place at a particular jail when an offender
is sentenced.

[13] The pandemic may well be with us for some time to come. However,
judges have no power to determine where an offender will serve their
sentence, and conditions in Nunavut’s correctional institutions have
changed thus far throughout the pandemic and have become more,
and then less, restrictive.

[14] Sentencing is an individualized process. While COVID-19 is not a

mitigating factor in the traditional sense, it is nonetheless an important
part of the sentencing equation. Accordingly, while being obviously
mindful of the pandemic in all cases, sometimes judges will temper
justice based on the profile of the person before them, and sometimes
not.

[15] Indeed, we may see cases where the moral culpability of the offender
is actually exacerbated by the pandemic—where, for example, the
offender has abused an elder or other vulnerable victim during times
of social distancing.
 5

[16] When the World Health organization says that prison conditions
during COVID-19 are both a government and a societal problem, it
does not mean only that existing or new facilities should be made
safer. To be sure, this needs to be done and some existing facilities
closed.

[17] More importantly, however, it means that collectively as a society we

should look beyond the current criminal justice duality of probation
and jail and explore alternatives to addressing crime, which, in our
communities, have been in plain view all along.

II. THE COVID-19 ISSUE

[18] This case, along with its companion case R v Ekpakohak, 2020 NUCJ
31, deals with whether an offender who is about to be sentenced to a
jail term should have time deducted from their sentence because of
COVID-19. Put more bluntly, should time be shaved off an otherwise
proper sentence because of the current pandemic.

[19] This decision follows on that of my colleague, Madam Justice

Charlesworth’s decision in R v Campbell, 2020 NUCJ 28 albeit with a
slightly different result.

[20] There are two types of situation where the issue arises:

1. The first involves accused persons who have not been granted
bail and have been waiting in custody (on remand) for their court
dates: the question is whether they should get enhanced or extra
credit deducted from any subsequent jail sentence because they
spent time on remand during the COVID-19 pandemic.

2. The second involves any offender whose sentencing is before the

court (whether they have been waiting on remand, or not): the
question is whether the sentence should be mitigated because of
the pandemic – more precisely, whether a portion of time should
be deducted from any jail term imposed, on account of the
COVID-19 pandemic.
 6

III. THE CURRENT STATE OF THE LAW

A. Remand credit

[21] Judges are required to grant “credit” to an offender for any time spent
in custody on remand; this credit is then applied moving forward by
deducting the remand credit from the offender’s total sentence if
further jail is imposed for the offence.

[22] A judge’s power to grant such credit is limited by section 719(3) of the
Criminal Code, which says the maximum remand credit allowed is one
day deducted from the total sentence for each day spent in custody (a
ratio of 1 to 1).

[23] This provision is tempered, however, by section 719(3.1), which

allows that “…if the circumstances justify it, the maximum [credit] is
one and one-half days for each day spent in custody.” Thus, any
“enhanced” or extra remand credit beyond the basic 1 to 1 ratio is
statutorily “capped” at a ratio of 1.5 to 1.

[24] Enhanced remand credit beyond a 1 to 1 ratio acknowledges the fact

that an inmate’s time spent on remand is not included when
corrections officials calculate the inmate’s early release or parole
date.

[25] This time spent on remand could lead to significant sentencing

disparity. If two offenders were to receive the same jail sentence for
committing the same type of offence, the offender who has spent time
on remand might easily serve more time in jail than the offender who
had been released on bail and had spent no time on remand awaiting
his court date.

[26] An allowance, therefore, for some form of enhanced remand credit

would, in most cases, eliminate such disparity. Indeed, in R v
Summers, 2014 SCC 26 the Supreme Court of Canada held that this
loss of eligibility for early release will generally be a sufficient basis to
award remand credit at a 1.5 to 1 rate.

[27] Accordingly, and unless the Crown can show that the offender is not a
likely candidate for early release, enhanced remand credit at a 1.5 to
1 rate should be granted.
 7

[28] In Summers, the Supreme Court also canvassed the circumstances

that would justify enhanced remand credit at 1.5 to 1; the Court said
there was a quantitative rationale for enhanced credit which can
account for the loss of eligibility for early release; and also a
qualitative rationale for enhanced credit which can account for the
harshness of remand conditions in many detention centers.

[29] And although the Court did not disturb the maximum or cap on such
enhanced credit at 1.5 to 1, it did allow that inmates who have
suffered “particularly harsh treatment” might seek a remedy under the
Canadian Charter of Rights and Freedoms (Summers at para 73).

[30] To be clear, however, the maximum enhanced credit that a court can
grant for pre-sentence time spent in remand is 1.5 days’ credit for
every 1 day on remand.

B. The length of a sentence

[31] In sentencing an offender, judges are required to fix a “fit” sentence in

accordance with the aims, principles, and objectives of sentencing as
set out in Part XXIII of the Criminal Code.

[32] This includes an application of the common law principle of restraint,

as well as (in so many cases) a genuine application of Gladue
principles in searching for alternatives to jail, or (as I said in an earlier
case) in mitigating the impact of a jail sentence where appropriate (R
v Menicoche, 2016 YKCA 7).

[33] Historically, judges have taken particularly harsh remand conditions

into account as part of fixing a fit and proper sentence—in particular in
Ontario in cases involving remand time spent at the notorious Toronto
South Detention Center (TSDC).

[34] Since sentencing is an individualized exercise, judges will temper

justice with mercy according to the profile of the offender—particularly
where the offender has never previously been sentenced to prison.

[35] Judges are not, however, permitted to deduct or “shave off” specific
amounts of time from a fit and proper sentence because the offender
will (or will likely) serve their time at an institution where conditions
may be particularly stressful.
 8

IV. THE CASE BEFORE THE COURT

A. The offender and the charge

[36] On 5 August 2020, I sentenced two Inuit male offenders, Mr. Pangon
and Mr. Ekpakohak, to periods of imprisonment for offences
committed against their respective female partners as well as
offences relating to breaches of court orders. My reasons for Mr.
Ekpakohak’s sentence, which are very similar to these reasons, are
set out in R v Ekpakohak, 2020 NUCJ 31.

[37] Mr. Pangon (27 years old) pleaded guilty to two charges of assault
involving his spouse and two charges of breaching terms of his bail.

[38] He has a record of previous spousal assaults for which he has served
time in custody.

[39] He was in custody and being held at the Rankin Inlet Healing Center
(RIHC) when he came before me (via telephone) on 5 August 2020.

[40] I was told by counsel that should I impose further periods of

imprisonment, Mr. Pangon would serve any such additional jail time at
the RIHC.

[41] Mr. Pangon spent 66 days in custody on remand. Upon admission

into the RIHC he was required to undergo 14 days of COVID-19
isolation during which time he was isolated alone in the medical unit,
with a short amount of time each day to shower and use the
telephone. He was not permitted, however, to socialize with other
inmates, and did not have access to any rehabilitative programming.

[42] Upon completion of his isolation, Mr. Pangon joined the general
inmate population. Full programming at the RIHC was restored
effective June 2020, which allowed Mr. Pangon to participate in AA
and Men’s Group meetings, as well as a one-day trip on the land with
other inmates. He also worked in the kitchen.

[43] Mr. Pangon does not have any health conditions or personal factors
which would indicate a heightened risk should he contract COVID-19.
 9

B. The sentence imposed

[44] The Crown and Defence made a joint submission that consecutive jail
terms be imposed for each of Mr. Pangon’s offences (with one
exception) for a total sentence of six months (180 days) jail, to be
followed by 18 months of probation.

[45] I accepted this joint submission and sentenced Mr. Pangon

accordingly to 180 days jail, to be followed by 18 months’ probation.

[46] I then deducted from this 180 days the time Mr. Pangon had already
spent on remand. As noted, above, Mr. Pangon had spent 66 days in
custody on remand.

[47] I granted him enhanced credit at a ratio of 1.5 days for each day he
spent on remand: accordingly, I calculated Mr. Pangon’s remand
credit to be 100 days (66 days at 1.5 to 1).

[48] Thus, the net sentence moving forward that Mr. Pangon would be
required to actually serve in jail was 80 days.

[49] This jail sentence will be followed by an 18-month period of probation,

which includes restrictions on Mr. Pangon’s contact with his spouse,
as well as a requirement that he participate in counselling programs
as directed by his probation officer.

C. The Defence request for additional reductions in sentence due to

COVID-19

(i) Respecting additional or enhanced remand credit

[50] Defence counsel requested that I grant additional enhanced remand

credit (at 1.5 to 1) for the 14 days that his client had spent in COVID-
19 isolation upon first entering the RIHC; this would amount to a
reduction of 21 days.

[51] Counsel relied upon recent cases from Ontario, where courts have
granted credit over and above the usual 1.5 to 1 ratio to recognize
severe COVID-19 remand conditions (see R v OK, 2020 ONCJ 189,
and further cases noted therein).
 10

[52] Counsel suggested that despite the statutory cap on remand time set
by section 719(3.1) of the Criminal Code, courts generally have an
inherent jurisdiction to allow additional enhanced remand credit
beyond the cap.

[53] In support of this position Counsel noted an earlier Ontario case

which found that “in the appropriate circumstances, particularly harsh
pre-sentence conditions can provide mitigation apart from and beyond
the 1.5 credit referred to in section 719(3.1)” (R v Duncan, 2016
ONCA 754 at para 6).

(ii) Respecting an additional reduction from the total sentence

[54] In addition to this enhanced remand credit due to COVID-19, the

Defence requested that I reduce the sentence that Mr. Pangon would
otherwise receive based on the existence of the pandemic.

[55] In making this request Counsel acknowledged that as of 5 August

2020 there are no presumptive or confirmed COVID-19 cases in
Nunavut. Counsel further acknowledged that with one exception, full
programming at RIHC has resumed as of June 2020; the exception
being that inmates are not permitted access to the community for
counselling and/or work placements.

[56] In support of this request the Defence relies upon R v Campbell, 2020
NUCJ 28, where Madam Justice Charlesworth imposed a 15 month
jail term (450 days). She then deducted 234 days for time spent on
remand (at a rate of 1.5 to 1). She then deducted an additional 60
days based on harsher conditions than usual at the Baffin
Correctional Center (BCC) because of COVID-19 precautions. This
left Mr. Campbell with 163 days remaining to be served from the 15
month (450 day) sentence.
 11

[57] Charlesworth J was told by correctional officials that Mr. Campbell

would be serving his sentence at BCC; and further that the conditions
which were in place at BCC on the day Mr. Campbell was sentenced
included:

a. The cancellation of visits which meant that Mr. Campbell (who

lives in Iqaluit) would not be able to see his four children;
b. The cancellation of programming including counselling from
Elders;
c. A significant reduction in outdoor recreation time;
d. Reduced access to country food; and
e. The cancellation or restriction on electronic money transfers
from expected income sources intended for his children.
(Campbell at para 24)

[58] Charlesworth J was advised by corrections officials that these

measures (which had been instituted on 16 March 2020) were in
place to protect inmates as well as staff (and by extension the public)
because other public health measures such as social distancing are
problematic (Campbell at para 25).

[59] Charlesworth J was also told that these measures are in place even
though (on the day Mr. Campbell was sentenced) Nunavut continued
to be “COVID free”, because that status could change at any time
(Campbell at para 25).

[60] Finally, Charlesworth J was told that these restrictions would continue
going forward as Mr. Campbell continued to serve his sentence at
BCC (Campbell at para 30).

V. ANALYSIS

A. The decision in Mr. Pangon’s case

[61] I declined the Defence request to deduct any further time from the
sentence imposed upon Mr. Pangon either through additional remand
credit or a shortened sentence.

[62] Accordingly, Mr. Pangon will serve 80 days in jail (followed by 18

months of probation).
 12

B. Respecting additional enhanced remand credit based on COVID-19

[63] Section 719(3.1) is clear that “if the circumstances justify it”,
enhanced remand credit is allowed. The section is equally clear,
however, that the “maximum is one and one-half days for each day
spent in custody.”

[64] Historically, and prior to 2009—when section 719(3.1) became law—

judges across the country had routinely awarded remand credit at a
rate of 2 days for each day spent in custody (a ratio of 2 to 1), and in
some cases, at a rate of greater than 2 to 1.

[65] Such enhanced remand credit was granted to reflect a number of

concerns – in particular the sorry state of many remand facilities
throughout the country, and the fact that in many institutions remand
prisoners were not permitted access to rehabilitative programming
available to the general inmate population.

[66] And in Nunavut, where programming has generally been made

available to inmates on remand, judges had historically granted
enhanced “2 to 1” remand credit to an inmate who made good use of
this time and successfully participated in such programming.

[67] Enhanced remand credit at 2 to 1 also addressed the fact that an

inmate’s time on remand was not taken into account by prison officials
when calculating the time within which the inmate may qualify for
remission in the form of early release.

[68] However, in 2009, things changed. Parliament put a cap on enhanced

remand credit at a 1.5 to 1 ratio via section 719(3.1).

[69] I part company with the view expressed in R v Duncan, supra, that
courts can provide mitigation in the form of enhanced remand credit
“apart from and beyond” the 1.5 to 1 ratio set by section 719(3.1).

[70] I appreciate the rationale in Duncan that such mitigation addresses

particularly harsh pre-sentence custody, in particular the conditions in
the Toronto South Detention Center, which is the focus of the COVID-
19 cases cited by Defence Counsel in reliance on Duncan.

[71] However, in my view Duncan provides no legal basis for exceeding

the 1.5 to 1 statutory cap – other than simply stating that the power
exists to depart from section 719(3.1).
 13

[72] I prefer the view expressed by Pomerance J in R v Hearns, 2020

ONSC 2365 (decided on 17 April 2020) and adopted by Charlesworth
J in Campbell that courts are “not at liberty to assign [remand] credit
beyond that prescribed in the Criminal Code” (Hearns at para 22;
Campbell at para 32).

[73] In Summers, above, the Supreme Court affirmed the 1.5 to 1 ratio as
the maximum available credit for time spent in remand as set out in s.
719(3.1).

[74] Accordingly, in my view—absent a challenge to the constitutionality of

the provision itself—judges have no power or jurisdiction to impose
any remand credit beyond that set out in section 719(3.1) at the rate
of 1.5 to 1.

[75] In Summers, the Court made it clear that this notion of enhanced
remand credit has a two-fold legitimate aim: first, to quantitatively
account for the loss of eligibility for early release; and second, to
qualitatively account for the harshness of conditions in remand
centres.

[76] In granting Mr. Pangon the maximum allowable remand credit at a

rate of 1.5 to 1, I recognize both the loss of earned remission as well
as the time he spent in isolation.

[77] It remains to be seen whether the now prevalent additional harshness

of COVID-19 remand lockdowns will spur Charter litigation to
challenge the current 1.5 to 1 limitation on remand credit.

C. Respecting COVID-19 sentence reductions

[78] At the time of this hearing, the COVID-19 pandemic is sweeping the
globe. The risk of infection is higher in custodial institutions, where
conditions – cramped quarters and shared sleeping, dining, and toilet
facilities – make it difficult, if not impossible, to implement social
distancing and other protective measures

[79] Thus, people deprived of their liberty are particularly vulnerable.

Moreover, experience shows that prisons, where people are gathered
together in close proximity, may act as a source of infection,
amplification, and spread of the disease beyond the prison itself.
 14

[80] Prison health is therefore widely considered to be public health. The

response to COVID-19 in prisons is particularly challenging, requiring
not just a whole of government approach but a whole of society
approach (World Health Organization Report 15 March 2020
(Europe): Preparedness, prevention, and control of COVID-19 in
prisons and other places of detention: Interim Guidance from R v TK,
2020 ONSC 1935 at para 71).

[81] As a result of the current health crisis, jails have become harsher
environments, largely because of restrictive lock-down conditions
aimed at preventing infection as well as individual isolations (upon
first arrival, and later in the case of a presumptive positive test). In
addition, many institutions have limited visitors (including even family
visitors) and counselling opportunities.

[82] Recognizing this state of affairs is not a criticism of correctional

authorities and officers who are doing all they can (often in as many
creative and humane ways as they possibly can). Restrictive
lockdowns are sometimes necessary to protect both inmates and
communities, since the risk of COVID-19 in prison settings translates
to an increased risk for the community at large.

[83] The historical practice of “administrative” or “disciplinary” segregation

of prisoners has been significantly curtailed in the past five years,
both by judicial initiative, and in turn, by Parliament. These practices –
often referred to as “solitary confinement” – have been described as
the “most onerous and depriving experiences that the state can
legitimately administer in Canada,” with the result that inmates
subjected to such measures have suffered much mental distress,
paranoia, and psychosis (see Anita Grace writing for The
Conversation, 27 October 2019, “The End of Solitary Confinement in
Canada? Not exactly”).

[84] It follows that unpredictable and repeated lockdowns because of

COVID-19 not only deprive inmates of normal congregation,
recreation, and therapy – they can also create additional stresses akin
to the experience of individual segregation.

[85] Until recently – and although in Nunavut prison officials have

experience in dealing with tuberculosis outbreaks from time to time –
judges were not concerned with the potential spread of a deadly
pathogen in custodial institutions.
 15

[86] However, judges have considered the pandemic in deciding whether

to detain a person charged with an offence on bail. Judges have also
released persons on very restrictive bail conditions where the person
was not a risk to public safety and where the only grounds for
detention was based on maintaining confidence in the court system
(see for example: R v JS, 2020 ONSC 1710; R v Rajan, 2020 ONSC
2118; R v TL, 2020 ONSC 1885; R v Kazman, 2020 ONCA 251; R v
TK, above).

(i) Remand in the time of COVID-19: a more robust approach

[87] The more important (and more difficult) question is how the pandemic
can or even should be taken into account in fixing a fit and proper
sentence. For it is on this question that “the rubber hits the road”.

[88] Ultimately, it is a question of balance. As noted by Goodman J in R v

TK:

…in these very challenging times, the court must fully recognize the
potential harmful health impact on detained persons in the various
institutions, while at the same time exercising the balancing required
to sustain its fundamental role in the administration of justice and
protection of the public. (at para 74)

[89] Harris J struck such balance in the case of R v Kandhai, 2020 ONSC
1611. The accused had pleaded guilty to possession of a prohibited
firearm and breach of a firearm prohibition order. He had been denied
bail and sat in custody on remand for some 30 months (which with
remand credit at a rate of 1.5 to 1 would constitute 45 months of
remand time). The Crown asked for a jail sentence of 4 to 5 years; the
Defence requested a sentence of 3 years time served (which would
result in the accused not serving any more jail time).
 16

[90] Harris J agreed with the Defence and declined to impose any further
jail time. With respect to the pandemic, he said:

Hardship in serving a jail sentence has always been a proper

consideration in crafting an appropriate sentence….The entire country
is being told not to avoid congregations of people. A jail is exactly
that, a state mandated congregation of people. The situation, which has
led to drastic measures in our society at large, is bound to increase day
to day hardship in prison and general risk to the welfare of prison
inmates. Given how much time he [Mr. Kandhai] has served thus far in
custody, it is in Mr. Kandhai’s interest and the public interest as well,
that he be released at this point. (at para 7, emphasis added)

[91] In my view, the primary “hardship” contemplated by Harris J was not

the “day to day” prison conditions, but rather a further period of
incarceration which would expose the accused to further risk of
infection.

[92] And so thus, and on balance, Harris J was of the view that the time
already served was a sufficient fit and proper sentence.

[93] Another case which, in my view, strikes a fair balance between the
impact of COVID-19 on prisoners and prison life and the need for
courts to maintain public confidence in our sentencing process is the
decision of Madam Justice Pomerance in R v Hearns, 2020 ONSC
2365.

[94] In Hearns, the accused pleaded guilty to aggravated assault; prior to

his plea he had spent nearly 700 days in custody on remand; with
credit on a 1.5 to 1 basis his total remand allowance was 1,001 days
(33 months, 11 days).

[95] The Crown and Defence jointly proposed a sentence of time served
(i.e., no further jail), and Pomerance J agreed with this disposition of
the case. She said a sentence of time served (with a probationary
period to follow allowing the accused to further address his
addictions) was appropriate given the fact of the COVID-19 pandemic
(at para 9).

[96] It is important to note, however, that the end result in both Hearns and
Kandhai was simply that the judges did not impose any further jail
time – i.e. they did not expose the accused to a further risk of infection
as well as the further hardship of COVID-19 prison restrictions.
 17

[97] Pomerance J notes that COVID-19 is extraneous to the fundamental

principle of proportionality in sentencing (that the penalty should
reflect both the seriousness of the crime and the moral culpability of
the offender in committing the crime). Therefore, the collateral impact
of a jail term will be greater on the offender than prior to the
emergence of the pandemic (at para 22).

[98] Accordingly, says Pomerance J, while COVID-19 is not a mitigating

factor in the classic sense, since it adversely affects conditions of
imprisonment, and increases health risks for those in jail, it is on that
basis “an important part of the sentencing equation” (at para 22).

[99] The question of course is how important? How does the pandemic
factor into the sentencing of an offender from both a principled and
practical standpoint?

[100] In Hearns, Pomerance J addressed the balance which needs to be

struck between the potential harmful health impact of the pandemic
upon detained persons and the role of the court in maintaining public
confidence in the administration of justice:

That balance is best informed by our collective approach to these

issues. During these challenging times, people are being asked to call
upon their sense of community, decency and humanity. That humanity
must obviously extend to all individuals, including those incarcerated
due to criminal charges or convictions. There will be cases where
release from custody is not a viable option. There must be
consideration of the safety of the community for a proportionate
sentence. Where, however, a period of time served can address
sentencing principles, even imperfectly, our sense of humanity tells us
that release from prison is a fit and appropriate response. (at para 24,
emphasis in original)
 18

[101] Pomerance J applied this approach to the offender before her as

follows:

The accused is entitled to credit on a 1.5 to 1 basis and that is what he

will receive. I am not at liberty to assign credit beyond that prescribed
in the Code. The question is not whether, looking forward, the
pandemic warrants reduction of the sentence yet to be served. The
question is whether the sentence already served, calculated with 1.5 to
1 credit, is a sufficient penalty. Given the pandemic, it may be that a
sentence of shorter duration is not only tolerable, but appropriate, in
the interests of personal and public safety. (at para 22, emphasis in
original)

[102] Strictly speaking, Hearns stands for the proposition that a period on
remand during COVID-19 may, “however imperfectly,” be a sufficient
penalty such that no further jail time is required.

[103] I adopt this reasoning.

[104] In Nunavut, it will mean a more robust approach to assessing the

effect of remand during the time of COVID-19.

[105] Bluntly, remand time (including enhanced credit) during COVID-19

should now count for more than it did in the past within the very
limited context of measuring, in a specific case, whether any jail
moving forward is necessary.

[106] In making such a determination, the judge would view the individual
case through the lens of right thinking members of the community.

[107] Under this new or more robust approach to assessing the value of
remand time, the public can see that the offender is getting a
discount – but at the same time, that they have already been
punished.

[108] They have already suffered the psychological stress associated with
a risk of infection (along with restrictive conditions to prevent it) to a
greater degree than the rest of society. During their remand time,
they have also faced an uncertain future that may involve a further
jail term with a continuing risk of infection.
 19

[109] I view this approach as quite distinct from deducting enhanced

remand time from the total or gross sentence; accordingly, the
assessment of whether further jail time is required is not a “back
door” to additional enhanced remand.

[110] In this regard, I would repeat what Pomerance J noted in Hearns,

above:

The question is not whether, looking backwards, the offender is

entitled to more credit. The question is whether, looking forward, the
pandemic warrants reduction of the sentence yet to be served. The
question is whether the sentence already served, calculated at 1.5 to 1
credit, is a sufficient penalty. (at para 22, emphasis in original)

[111] In Hearns, Pomerance J used a case specific metric and said,

again, as noted above:

There will be cases where release from custody is not an option. There
must be consideration of the safety of the community and the need for
a proportionate sentence. Where, however, a period of time served can
address sentencing principles, even imperfectly, our sense of humanity
tells us that release from prison is a fit and appropriate response. (at
para 24, emphasis in original)

[112] The sentencing principles of parity (what happened to other

offenders in similar circumstances) as well as proportionality (the
moral blameworthiness of the offender before the court) are
important in coming to a fit and proper sentence.

[113] Ultimately, however, the sentencing of any offender is a highly

individualized exercise that takes into account the gravity of the
crime, the offender’s degree of responsibility, and the specific
circumstances of each case.

[114] In today’s environment, the “specific circumstances of each case”

would include the ramifications of the current health crisis as it
affects prison conditions – and particularly where the offender has
already experienced harsher conditions than those prior to the
emergence of the pandemic.
 20

[115] Further, the law allows that a judge can order a jail sentence outside
(i.e., below) the normal sentencing range as long as it is in
accordance with the basic principles and objectives of sentencing.
Thus, a sentence falling outside the normal range of appropriate
sentences is not necessarily unfit (R v Lacasse, 2015 SCC 64 at
para 58).

[116] Thus, in my view, the proper metric is as follows: if the amount of

remand time already served (including enhanced remand credit)
could result in a fit penalty if the offender was released, then it
should constitute, “however imperfectly,” a sufficient penalty.

[117] How will the new metric be applied to determine if the time already
spent on remand is, “however imperfectly,” a sufficient penalty in the
time of COVID-19?

[118] What measure will the sentencing judge use to determine if the end
result is a fit sentence?

[119] In my view this new metric should apply to cases where the
offender’s total remand credit is a significant or substantial portion of
a fit and proper sentence.

[120] In such a case, as in Hearns, the actual sentence will equate to the
time spent in remand with enhanced credit. The net effect will be that
the offender receives what is colloquially referred to as a time served
sentence, with or without probation to follow.

[121] The judge would be required only to note the remand time is such
that it constitutes a significant or substantial portion of what the
offender would receive as a penalty, so that “however imperfectly,” in
these challenging times, it is a sufficient penalty.

[122] The notion that offenders will voluntarily remain or “stack up time” on
remand in the hope of serving less time is (and always has been)
myth. Anecdotally, it is a true but rare occurrence. Generally,
however, the prospect of an uncertain future is such that offenders
are anxious to end their remand time.

[123] I would add two notes of caution with this new approach.
 21

[124] First, it should not override a considered joint submission by counsel

where the position is an additional period of jail; in such a case, the
offender has agreed to the proposed sentence for fear of a more
harsh result after a trial.

[125] Second, in terms of public safety, in more serious cases, the amount
of remand credit required to “trigger” the approach would need to be
significantly lengthy.

[126] Indeed, such was the situation in Hearns: the offence was a violent
one; the remand time was significant (some 33 months), and the
judge followed the joint submission of counsel for time served.

[127] Where a lengthy penitentiary sentence is the fit and appropriate

disposition, it is likely this approach will not apply.

[128] However—and provided public safety is not compromised—society

is best served when remand centres are emptied so that inmates
need not serve more time during the pandemic.

[129] This is because, as noted earlier, it shows a collective sense of

decency and humanity to people who have already suffered an
increased risk of exposure to the virus; as well, one less person in
prison presents less risk to the greater public.

[130] I would note as well that the Crown in Nunavut has already (because
of COVID-19) adjusted the terms of assessing which cases it
continues to prosecute and the cases for which it seeks jail, as well
as the amount of jail required.

[131] I would accordingly encourage the Crown to embrace this new and
more robust approach in assessing, on a case by case basis,
whether any future period of jail is required after an offender has
already served significant remand time.

VI. SHOULD JAIL SENTENCES GENERALLY BE SHORTER BECAUSE

OF COVID-19?

[132] The question then becomes what approach or standard should be

taken moving forward where incarceration is required.
 22

[133] In Hearns, Pomerance J said, “Given the pandemic it may be a

sentence of shorter duration is not only tolerable, but appropriate, in
the interests of personal and public safety” (at para 22).

[134] In my view, this statement should be viewed with some caution: first,
in context, because the offender (in Hearns) had already spent time
on remand; and second, in light of Pomerance J’s further comment
where she said:

…I am not suggesting that the pandemic has generated a “get out of

jail free” card. The consequences of a penalty … cannot justify a
sentence that is disproportionately lenient, or drastically outside of the
sentencing range. It cannot turn an inappropriate sentence into an
appropriate one or justify dispositions that would place the public at
risk. See R v Day, 2020 NLPC 1319A00658 at para 1. (Hearns at para
23)

[135] Following on this, I do not believe that the public in Nunavut is

prepared to accept the general notion or proposition that COVID-19
should result in an automatic reduction of all jail sentences.

[136] To be clear, I am referencing only cases where the sentencing judge

has decided—in applying the principles and objectives of sentencing
including a genuine consideration of Gladue factors—that the
offender be separated from society as a last resort so that a jail
sentence is the only fit and proper disposition.

[137] I agree with the view expressed by Pomerance J in Hearns, above,

that while COVID-19 is not, strictly speaking, a “mitigating factor”, it
is nonetheless, as noted earlier, “an important part of the sentencing
equation.”

[138] I differ, however, from the view expressed by Charlesworth J in

Campbell that COVID-19 should result in a shorter than normal
sentence in all cases.

[139] As noted earlier, sentencing is ultimately an individualized process

and the law has always allowed judges to temper justice with mercy
according to the profile of the person to be sentenced.

[140] In turn, this means the sentence will depend upon the profile of the
offender and the circumstances surrounding the offence itself.
 23

[141] I do not, however, and with respect, share the view that “if
incarceration has a deterrent effect, then more harsh [COVID-19]
incarceration should have a stronger deterrent effect” (Campbell at
para 28).

[142] Deterrence is a codified sentencing objective to which judges must

adhere. In reality, however, the barn doors have long been open
respecting jail as any kind of deterrent.

[143] However, in terms of denunciation, we may be faced with situations

where the pandemic may exacerbate the penalty—for example
where the offender has abused an elder or other vulnerable victim
during times of social distancing.

[144] In short, I think the public is prepared to accept that COVID-19 may
temper the jail sentence in some cases, and in others, not.

[145] Finally, 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.

[146] More precisely, I do not favor deducting “chunks” of time from the
end of a sentence based on specific restrictive conditions that may
exist on the day the offender is sentenced.

[147] I see two problems with this approach; first, the law does not permit
the judge to give the offender “relief” from the conditions which exist
on the day they are sentenced; second, restrictive conditions can
and do change over the course of the sentence.

[148] The law requires that a jail sentence commence—and the offender
start serving the time—on the day the sentence is imposed. The law
does not permit the judge to relieve the offender of the harsh prison
precautions that exist on the day of sentencing by allowing them to
“go home” for the fixed period of the COVID-19 reduction, and to
report to the jail afterwards.

[149] Any pandemic restrictions which may be in effect on the day the
offender receives his sentence may or may not still be in effect for
the duration of the sentence. Thus, the specific relief granted by the
reduction may be redundant by the time the inmate is released.
 24

[150] The pandemic may well be with us for months or years to come.
However, the COVID-19 precautions that exist on the day of
sentencing could possibly turn more favorable to the offender a few
months after they are admitted as an inmate.

[151] In such a case, the inmate would be receiving the benefit of their
“COVID reduction” at a time when the restrictive conditions are no
longer in place.

[152] Conditions in jails are fluid – they change, sometime becoming more
restrictive, sometimes less so.

[153] Indeed, this is what happened in Campbell. Madam Justice

Charlesworth imposed a 15 month jail term (450 days); she then
deducted 234 days for time spent on remand; she then deducted an
additional 60 days because of harsher conditions than usual at BCC
due to COVID-19 precautions.

[154] Charlesworth J made this COVID-19 reduction in good faith based

on information provided by both BCC and Counsel.

[155] The judgment in R v Campbell was issued 15 June 2020. However,

and by coincidence, on 15 June 2020 BCC lifted those same
restrictions (with minor exception) (“Nunavut Judge reduces
sentence because of jail conditions during pandemic”: Emma
Tranter, Nunatsiaq News 06 August 2020).

[156] Campbell serves to illustrate the frustration of attempting to tailor a

jail sentence according to fluctuating jail conditions. The longer the
sentence, the more speculative it is to assert that the restrictive
conditions in effect on the day of sentencing will be in effect on some
future date.

[157] Further, a judge has no power to say where the offender will serve
the sentence. The court may be told (by Counsel or Corrections) that
an offender will likely serve their sentence at BCC; however, there is
nothing remarkable about an inmate transfer at some point down the
line.

[158] I would, in particular, further discourage the practice of granting

additional COVID-19 deductions where the offender has agreed to
the proposed sentence via a joint submission of Crown and Defence
Counsel.
 25

[159] As noted earlier, by agreeing to a specific sentence the offender has

avoided the prospect of a greater sentence after a trial (where the
evidence may be more damaging).

[160] Counsel are of course free to consider COVID-19 prison conditions

in coming to an agreed submission respecting the appropriate
sentence, and sentencing judges should (with limited exception)
follow such a joint submission.

[161] I would not, however, adopt—even as part of a joint submission

between the Crown and Defence—any request to deduct an
additional “chunk” of time from the sentence based on specific prison
conditions which exist at the time of sentencing (or which are likely to
continue as the sentence is served).

[162] In this case of R v Pangon (and the accompanying case of R v

Ekpakohak) I followed the joint recommendation of Crown and
Defence Counsel respecting the gross sentence.

[163] I declined to grant additional remand credit because I had no

jurisdiction to do so. I also declined to order a specific additional
COVID-19 deduction based on prison conditions.

[164] 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.

[165] All citizens face a risk of infection. As I noted earlier, and particularly
in Nunavut, sentencing is an individualized process. Accordingly, and
in my view, it is sufficient that a sentencing judge – in light of the
pandemic – may or may not temper justice with mercy in light of the
circumstances of the individual before them to be sentenced.

[166] This is nothing new.

[167] At present our criminal justice system has just two extreme options—
probation or jail. During probation we attempt to supervise the
offender, but we return them to a somewhat normal life; in jail we
warehouse them before returning them.
 26

[168] It is, therefore, no wonder that prison populations continue to grow.

Perhaps, during this time of COVID-19, there will emerge an energy
and vision to more actively explore and utilize, on a grand scale, the
type of alternative community solutions that have always existed.

VII. CONCLUSION

[169] This case deals with whether, and if so, how, judges should consider
the COVID-19 pandemic when sentencing offenders to a term of
imprisonment.

[170] On 5 August 2020 I sentenced Gordon Pangon to a term of

imprisonment based on a joint recommendation of his lawyer and
Crown Counsel.

[171] I granted Mr. Pangon remand credit at a rate of 1.5 days for each
day he had spent in custody awaiting his court date, and this time
was deducted from the sentence.

[172] I declined, however, to grant additional remand credit for the time Mr.
Pangon had spent in COVID-19 isolation when first taken into
custody. I have no power to do so because the Criminal Code has
limited or capped the total available remand credit to the amount I
had already granted. I do however urge a more robust judicial
approach or appreciation of remand in the time of COVID-19.

[173] I also declined to grant Mr. Pangon any specific deduction from his
sentence. COVID-19 should be taken into account when arriving at a
fit sentence. The pandemic should not, however, operate as an
automatic reduction of sentence, or allow a specific reduction to an
otherwise fit and proper sentence.

Dated at the City of Iqaluit this 5th day of August, 2020

_________________
N Sharkey C.J. (NCJ)
Nunavut Court of Justice