Court of Appeal Addresses Covid and Parole

I have been overdue to write something about this case for a long while. It’s the sort of case that says something very important and yet it’s hard to know if it has made any real difference. Either way, it’s worth reading.

In R. v. Morgan the Court of Appeal for Ontario was invited to consider whether the sentence imposed on an inmate was appropriate. It was an inmate appeal so Mr. Morgan was representing himself, but he was very well assisted by Mr. Matthew Gourlay acting as duty counsel. The sentence predated Covid but by the time the appeal was heard Covid was in full outbreak. Conditions in jail were terrible, just as they continue to be. And essentially, the argument at appeal was that the sentence should be reduced because of this.

The Court rejected Mr. Morgan’s arguments on sentence but went on to address the topic of parole. This was no coincidence. Matthew Gourlay and I discussed this in advance. And the Court expressed the following opinion on that subject, referencing the impacts of Covid on conditions in jail:

We expect that the Ontario Parole Board will take into account those impacts in deciding whether the appellant should be granted parole. If the Parole Board fails to do so, the appellant has other remedies available to him to redress that failure.

Ever since this decision, I and my associate have been referencing this case constantly to the Ontario Parole Board. We provided it to the whole Board for distribution as soon as it was received. Why? Because it’s incredibly rare for the Ontario Parole Board to receive any direction from the Court of Appeal for Ontario. Cases from the Parole Board just don’t make it that far. And so this direction is very important. Unfortunately, it is also easy to ignore.

I can’t tell you how much the Ontario Parole Board actually chooses to care about this direction from the Ontario Court of Appeal. And I don’t even know what the Court imagines are practically available as “other remedies” if the Parole Board does not choose to take Covid into account, or does so inadequately. Can I imagine someone taking a case on judicial review to Superior Court, on appeal to the Court of Appeal, etc? Well, theoretically, yes. But provincial sentences are short, the stakes are relatively low, and who has money to pay for that? By the time an appeal of that nature works its way through the system, the inmate would be out already. Which is exactly why the Court of Appeal doesn’t end up writing opinions on provincial parole in Ontario, and why this decision is so unusual.

Full credit to Matthew Gourlay for making these arguments and to Mr. Morgan for taking a stand. We’ll never know for sure if this case made the difference in terms of the Ontario Parole Board releasing anyone who they otherwise would not have granted parole. But I know for sure they’ve heard about this case, again and again. And we won’t let them forget about it any time soon.

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