The tale of two Hamilton inmates: To release, or not to release

To release or not to release.

That is the question facing judges as they consider whether prisoners ought to be released on bail because they may be at greater risk of contracting COVID-19 while incarcerated.

Since mid-March, Hamilton judges have been doing virtual bail reviews for applicants in detention centres who were previously denied bail. Accused are now citing the pandemic as a material change in circumstances" for judges to consider.

It's a complicated process with judges weighing competing factors, including interpretations of the law, public safety, the right of presumed innocence, public confidence in the justice system and the health of the accused.

On May 7, two Superior Court judges issued very different rulings on applications for bail review.

Justice Andrew Goodman granted bail to a man accused of firing a gun at a crowded schoolyard.

Justice Stephen Glithero denied bail to a man with a history of violence who allegedly threatened to kill his girlfriend.

Both judges agree the risk of contracting COVID in the Hamilton-Wentworth Detention Centre is real. Since the pandemic began, one inmate and one correctional officer tested positive.

Glithero wrote in his decision: It has become the mantra of the leading health experts ... that distance spacing is the single most important thing a person can do to protect himself or herself ... I take judicial notice of the physical inability of inmates in detention centres to stay two metres apart from one another, and further take judicial notice ... that such inability to physically distance from others puts a person at greater risk to contract the virus, and/or to spread it to others."

Goodman wrote: I take judicial notice of the COVID-19 pandemic as it can adversely affect inmates housed in correctional institutions."

Through that lens, each judge analyzed their case.

Goodman reviewed the application of Aaron Foster. He was arrested Sept. 24, 2019 after shots were fired at Cathy Wever Public School. Children and teachers were in the playground at the time.

A man fired two or three shots from a handgun at another man standing in front of the school.

Foster, a young adult, is charged with possession of cocaine, proceeds of crime, careless use of a firearm, point and discharge a firearm with intent to wound and other firearms offences.

A trafficking charge laid initially was withdrawn after his previous bail attempt.

He has no previous convictions for violent offences.

The first time he applied for bail, Foster did not have a solid" release plan, according to Goodman. This time, it included strict house arrest terms, primary supervision from both his mother and great-aunt coupled with the option of additional supervision of a GPS electronic ankle monitor."

Foster told court he has anemia.

I am concerned this may put me at a higher risk if I contract COVID-19 while in custody," he said.

But Foster's well-being must be weighed against that of the community if he were released.

While the pandemic is daunting and challenging," writes Goodman, I am reminded that the court must be mindful of the risks of releasing violent offenders back into the community for the sake of reducing the population in detention centres."

The pandemic is not an excuse for a get out of jail free card."

I confess that this decision is a close call," writes Goodman, who concludes: The bail review application is granted."

Glithero decided the matter of Joseph Medeiros, 55, who on Sept. 24, 2019 allegedly threatened to kill his intimate partner.

The woman contacted police Oct. 18 to report the threat. She said while she was changing a baby's diaper, Medeiros slapped her hand away." When they argued, he allegedly threatened to kill her.

She told police Medeiros said he had people watching her, her phone was tapped and he did not have to lift a finger in order to harm her or the people around her." She said she was afraid for herself and her children.

Medeiros was arrested the day of the complaint. The next day, the woman found a pellet rifle and knives hidden in the house.

Medeiros was already out on bail for this charge. But he violated his house arrest by going to Shoppers Drug Mart and was sent back to jail.

The judge notes Medeiros did not have contact with his victim during his breach.

Now, he was asking to be let out again because of COVID-19, but without a surety or conditions, other than a requirement to sign in with police.

Glithero considered that Medeiros has a criminal record, including convictions for attempted murder, use of a firearm during the commission of an offence, possession of an unregistered restricted weapon and pointing a firearm, for which he was sentenced to 17 years in prison.

He was later convicted of 30 counts of criminal harassment.

Glithero says he doesn't know if the previous victims were intimate partners.

If Medeiros pleads guilty to his current charge, he will likely be handed a sentence of four to six months and will be released with time served.

The passage of time is particularly important in cases where the range of likely penalty for the offence is such that a detained person could end up spending more time awaiting trial than he would by way of sentence if convicted," writes Glithero.

In the end, Glithero's decision comes down to this: Given the concern for the safety for the complainant ... his record for serious violence, and for harassment, and given that he breached the term of his earlier recognizance on this very charge, in my opinion, the absence of any particularized plan of release constitutes a failure to show cause why he should not be detained."

For these reasons, this application is dismissed."

Susan Clairmont is a Hamilton-based crime, court and social justice columnist at The Spectator. Reach her via email: sclairmont@thespec.com