R. v Swinamer, 2020 NSSC 133

SUPREME COURT OF Nova Scotia Citation: R. v Swinamer , 2020 NSSC 133 Date: 20200408 Docket: CRK No. 497843 Registry: Kentville Between: Her Majesty the Queen v. Scott Swinamer Judge: The Honourable Justice John A. Keith Decided: April 8, 2020, in Kentville, Nova Scotia Written Submissions: April 6, 2020 Counsel: Hanna Garson, counsel for the Accused Scott Swinamer William Fergusson, Q.C., Crown Attorney Scott Swinamer, not present By the Court: [ 1 ] In an Information sworn October 14, 2019, Mr. Swinamer was charged with offences under Sections 264(1) and 177 of the Criminal Code .

In a second Information sworn October 22, 2019, Scott Swinamer was charged with offences under Sections 266, 334(b), 811 (2 counts) and 145(5.1) of the Criminal Code . [ 2 ] On October 28, 2019, Mr. Swinamer was denied bail by Judge Manning of the Nova Scotia Provincial Court; and he currently remains in custody pending trial. His trial was scheduled to begin on April 6, 2020. [ 3 ] Mr. Swinamer’s trial was adjourned due to a public health emergency caused by the virus COVID-19. Six months ago, COVID-19 was virtually unknown and had only just begun to infect human beings.

Despite having no independent means of locomotion, the pathogen spread by touch, quickly covered the globe and now dominates our daily lives. Beyond seeking new opportunities for further contagion, COVID-19 is a dangerous piece of DNA that places no value in humanity, politics, economic activity or, for that matter, judicial proceedings. [ 4 ] In Nova Scotia, on March 22, 2020, the provincial government declared a state of emergency under the Emergency Management Act, S.N.S. 1990, c. 8 , and enacted numerous urgent measures designed to contain the epidemic. These measures are as necessary as they are harsh.

Nova Scotians are living with restrictions and regulations that would have seemed unthinkable six months ago. Daily activities that were routine are now suspended. Schools and universities are closed. Businesses are emptied and shut down. People are subject to fines for walking in parks or gathering with friends. There is virtually no traffic on the roads and cars parked by a public beach are being towed.

All of this is most assuredly temporary but right now, unfortunately, there is no choice. [ 5 ] In turn, the Courts sought to adapt in a manner which supports public health and the related actions taken by government in times of crisis. The Supreme Court of Nova Scotia instituted an “essential services” model. This means that hearings are temporarily limited to those circumstances deemed urgent or essential by a presiding justice. Again, the motivating concern is for the health and safety of the public and all persons engaged with the justice system. [ 6 ] Mr.

Swinamer does not dispute that we are in the midst of an emergency. He also does not dispute the Court’s need to implement an “essential service” model in the circumstances. However, he says that his request for a bail review under Section 520(1) of the Criminal Code is “urgent and an emergency”. [ 7 ] Mr. Swinamer acknowledges that no person being held in custody in Nova Scotia has yet to test positive for COVID-19.

However, he contends that the emergence of COVID-19 in Nova Scotia prompting the current state of emergency combined with “the risks of contagion inherent to a carceral facility” creates sufficient urgency to justify his request for a hearing. In reaching this conclusion,

he defines an “emergency” as “the reasonable apprehension of the near approach of danger.” [ 8 ] Mr. Swinamer further says that the individual liberties guaranteed under the Canadian Charter of Rights and Freedom must be recognized and properly balanced against whatever other societal priorities emerge during a pandemic. He says that a bail hearing which occurs over the phone or by video conferencing strikes an appropriate balance in these extraordinary circumstances. [ 9 ] On the issue of whether Mr. Swinamer’s request for a bail review is an “emergency”, he asks I take judicial notice of the following risks: 1.

The risk that COVID-19 might soon infect an inmate in a correctional centre in Nova Scotia; and 2. The risk that existing conditions within any correctional centres in Nova Scotia are such that once COVID-19 enters the institution, the spread will be swift and unstoppable. This is because, he says, current methods to slow the transmission of COVID-19 (e.g. social distancing and hand sanitizing) are neither possible nor effective in a correctional centre. [ 10 ] In support of these arguments, Mr. Swinamer filed letters from the following physicians: 1. A half-page letter dated March 30, 2020 from a Dr.

Claire Bodkin, a physician based in Ontario. The content of the letter is very general in nature and addressed “To whom it may concern” 2. A two-page letter to Justice Hunt dated March 31, 2020. It is not clear why this letter was addressed to Justice Hunt. [ 11 ] Mr.

Swinamer also refers to the decision of R v JS , 2020 ONSC 1710 , where Justice Copeland wrote: But I take notice of the fact, based on current events around the world, and in this province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home. The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects.

The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells. I note that this factor concerns not only Mr. S.’s own health, but also the preservation of scarce hospital resources to treat patients. If more people are infected, those resources will be more strained. (para 19) [ 12 ] Respectfully, Mr. Swinamer has not demonstrated that his request for a

Section 520 bail review is urgent or an emergency. [ 13 ] First, the comments of Justice Copeland are distinguishable. These comments were made in the context of an actual bail hearing and not to determine whether a requested bail hearing constituted an emergency. In addition, Justice Copeland described certain institutional risks in correctional centres as a relevant factor among others in granting bail.

I do not interpret Justice Copeland’s comments as raising an alarm that every person being held in every correctional institution across the country was facing an urgent peril sufficient to qualify each and every request for bail review as an emergency. [ 14 ] The fact that Nova Scotia is under a state of emergency does not mean that the request of every person in custody seeking a bail review hearing qualifies as an emergency. In my opinion, an emergency proceeding for bail review must be premised on personal circumstances of sufficient gravity as to distinguish the case.

It is not a proceeding which is based on a single, unifying fact that applies equally to every person on remand. COVID-19 imperils all Nova Scotians and has very serious, societal implications. However, the presence of COVID-19 in Nova Scotia (without anything more) does not constitute an “emergency” for the purposes of one individual bringing a legal proceeding for that individual’s own purposes. Were it otherwise, the concept of an “emergency” proceeding would be meaningless.

Every individual who requests a bail review would qualify as an “emergency” simply due to the presence of a virus that affects all Nova Scotians - regardless of the underlying circumstances. [ 15 ] In addition, and in my view, an “emergency” proceeding in the current circumstances must involve a present or imminent peril which is sufficiently distinct and serious as to merit immediate judicial intervention. A “reasonable apprehension” of peril is not enough. [ 16 ] Here, I do not have sufficient evidence to determine whether an emergency truly exists for Mr. Swinamer.

Based on the information before me, I am unable to properly assess the underlying dangers which Mr. Swinamer faces – either within the particular institution where he is held (I was not given the location) or based on his own personal vulnerabilities. [ 17 ] As a final note, the decision to restrict proceedings (including bail reviews under

Section 520 of the Criminal Code ) to matters deemed urgent or essential is part of a much broader societal effort led by government and based on the advice of public health officials. These measures require resolve, demand sacrifice and impose a degree of deprivation. They are far from ideal, but necessary for the greater good. The government of Nova Scotia confirms that the next two weeks is a particularly critical time in terms of mobilizing to delay and defeat the virus.

This fact reinforces the present need for proof that an individual faces an actual emergency before convening a judicial proceeding which still requires a degree of increased socialization, even if it occurs electronically. Again, these unprecedented measures are temporary. As with COVID-19, they will pass or subside - and, with acceptable innovation, hopefully sooner rather than later; and Mr. Swinamer is at liberty to apply again in the future.

In the interim and at this moment, it is reasonable to require a party seeking emergency proceedings to demonstrate an actual emergency before asking the Court to react in a manner which is otherwise inconsistent with governmental directives designed to protect and preserve the health of the population. Keith, J.