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Judges release growing number accused of violent crimes due to COVID-19 fears

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WATCH: Inmates at some of Ontario's 25 jails are being let out early because of the novel coronavirus disease, COVID-19 – Apr 7, 2020

One is the accused getaway driver for a recent Toronto murder attempt. Another allegedly pistol-whipped and Tasered two in Ottawa over a drug debt. A third was allegedly involved in a Toronto strip mall shooting.

A growing number of suspects arrested on serious criminal charges have been ordered released from custody in recent weeks by judges concerned about the spread of COVID-19 in Canada’s prisons.

“These are extraordinary, dire times,” a judge wrote Monday in a decision ordering the release of a man accused of firing a bullet through his ex-girlfriend’s apartment window in Hamilton, Ont.

Although the courts have effectively shut down due to the pandemic, they have heard from detainees arguing they should be released from custody because of the new coronavirus.

A flurry of court decisions suggest that even those accused of violent crimes are winning release. As one judge wrote, the pandemic had “reordered the usual calculus.”

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READ MORE: Coronavirus — 2 inmates at Mission Institution test positive for COVID-19

Crown prosecutors have been fighting the trend, arguing that COVID-19 is under control in prisons and that public confidence would be undermined if those facing serious charges were released.

“Given the size of our population, this is currently a very small risk factor,” according to an April 1 memo, filed in Ontario court by prosecutors, which said there were just two confirmed cases in provincial jails to date.

But court records show that even those with long criminal histories have won release under various conditions, including a man with 23 convictions identified only by the initials T.K.

The judge wrote that “in normal times,” T.K. would have likely been detained following his latest arrest on drug trafficking charges.

“Yet, as mentioned, we currently live in extraordinary and very challenging times,” he wrote, quoting a report that said prison inmates were more vulnerable to the new coronavirus because of their confined conditions.

The judge went on to caution the pandemic was not a “get out of jail free card.” But a mounting body of court rulings cite COVID-19 in decisions ordering the release of prisoners.

In one decision, the judge quoted Prime Minister Justin Trudeau telling reporters on March 29 he was “very concerned” there could be “greater vulnerability to COVID-19” in Canada’s prison system.

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COVID-19: Preventing prison outbreaks in Canada – Apr 2, 2020

Among those released was Kaynadid Abshir, who allegedly rented a silver Chrysler 200 four-door sedan and drove three gunmen to a Toronto residence on March 13.

They waited until the victim returned home, chased after him and shot him with nine-millimetre handguns, according to allegations made by the Crown in court.

Police recovered 19 shell casings from the scene.

“Crown counsel opined that this shooting is one of the worst ones he has seen. The victim was chased into his home, and the assailants were firing at him while the front door was still open,” the judge wrote.

The victim only survived because the attackers were “not good shots,” according to the Ontario court’s March 27 ruling on Abshir’s bail.

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The judge, however, ordered the release of the 19-year-old alleged getaway driver, who is charged with attempted murder, aggravated assault and 10 firearms-related offences.

The decision referred to his clean record, mental health challenges and the “circumstantial” case against him, but also cited COVID-19 and the “greatly elevated risk posed to detainees from the coronavirus, as compared to being at home on house arrest.”

READ MORE: 3 inmates at women’s prison in Kitchener test positive for coronavirus

With large numbers of inmates living in close proximity, prisons are widely believed to be at heightened risk of COVID-19, prompting federal and provincial prisons to put measures in place to prevent the spread of the virus.

At federal corrections facilities, there have been 35 positive tests to date — 17 in Quebec, 7 in Ontario (all at the Grand Valley Institution for Women) and 11 in British Columbia (all at the Mission Medium Institution). Another 39 tests are pending.

“We’ve taken measures already in Corrections Canada to ensure that we’re keeping inmates and corrections officers more safe from COVID-19. But we’re still looking at other steps,” Trudeau said on Tuesday.

An Ontario judge called the efforts “laudable” but said they did not change the risks.

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“That there are not many cases yet is of little consequence. The virus starts in one person but then can run like wildfire through an entire population,” he wrote.

“It can then be carried outside of the institution by the staff. That is the nature of a pandemic and of contagion.”

READ MORE: Oliver, B.C. man released early from Okanagan jail due to COVID-19 outbreak

Judges must look at a range of factors when determining whether to grant bail to someone arrested by police, but the new coronavirus is increasingly turning up in decisions favouring release, even for those accused of violent crimes.

“The threat the virus poses to those housed in the detention centre is one factor in the balancing which is required,” a judge wrote in a decision ordering Brandon Cain released from the Ottawa Carleton Detention Centre.

An alleged “drug supplier,” Cain was arrested for what the court called “very serious charges arising from a violent attack,” according to the April 1 Superior Court ruling.

Cain and a co-accused “are alleged to have pistol whipped and tasered the complainants,” the judge wrote. “Mr. Cain is also accused of forcing the complainants to shoplift in order to pay off the drug debt for the stolen drugs.”

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Following his arrest, Cain was initially released on bail but allegedly violated the conditions and was taken back into custody. Nonetheless, an Ottawa judge decided to release him again on $11,000 in bonds and house arrest.

The judge wrote that “recommended social distancing and frequent hand washing which are required as protection against the virus, are not readily available while a person is in custody at the Ottawa Carleton Detention Centre (‘OCDC’).”

“This is not a criticism of the facility, it is merely a statement of the fact that prisoners cannot adequately socially isolate, nor wash their hands with frequency in the jail,” she added.

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Okanagan Correctional Centre inmate tests positive for COVID-19 – Apr 2, 2020

Also ordered released was a man identified only by the initials T.L., who was charged over a Sept. 30, 2019, shooting that injured the victim.

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T.L. is “alleged to have passed the firearm to D.M. immediately before D.M. shot his cousin, and then used his own car to pick up the shooter and flee the scene,” the judge wrote.

Initially denied bail, he appealed, arguing he should be released to live with his grandparents.

“The offence is a very serious one,” the ruling read. “The shooter is charged with attempted murder. Mr. L. is charged with having aided that. He is also charged with having provided the weapon.”

“The surrounding circumstances were also aggravating. Although in the early morning hours, this was a plaza with many members of the public in the area. It was a violent, brazen shooting in an open public area.”

The Crown argued that T.L.’s grandparents were seniors and ordering him released into their custody would put them at risk of contracting the new coronavirus. But the judge said that was their choice.

“I applaud them,” she wrote.

READ MORE: 2 inmates at maximum-security prison test positive for COVID-19 — officials

The judge ordered release, writing that “in the unique circumstances in which we now find ourselves, facing a global COVID-19 pandemic, it is also relevant to take into account the realities of detention and release in our current environment.”

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Because the courts have shut down except for emergency cases, there will be a backlog when they resume normal operations, making it “very difficult” to predict when his trial would begin, the judge wrote.

“In the middle of a pandemic, serving that time in an institution is even more difficult. Transmission of the virus would be so much easier within an institution than in a private home.

“Protective measures being undertaken by the rest of the community (such as not congregating in groups, self-isolation, social distancing, maintaining a six-foot distance between people) are not as easily achieved in an institutional prison environment.”

Stewart.bell@globalnews.ca