A Toronto judge says an outbreak of COVID-19 is inevitable in corrections facilities, but serious crimes still deserve custodial sentences.

Had the act of dangerous driving that killed a motorcyclist deserved just a few months on top of the 10 months that Marc Laurin had served while awaiting his trial, Ontario Court Justice Kimberley Crosbie said she would have sentenced him to the time he’d already served, sparing him the health risks.

But in a case that some consider a barometer of how judges view putting offenders in jail during a pandemic, Justice Crosbie said Mr. Laurin deserves three years behind bars. She then subtracted nine months for inhumane conditions while in a provincial detention centre (such deductions are growing more frequent of late in Ontario), and 14.5 months based a standard credit of 1.5 days for each day in pre-trial custody, leaving Mr. Laurin with a little more than a year to serve.

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She sentenced Mr. Laurin on Monday, amid a widespread shutdown that has affected everything from schools to restaurants to the courts themselves. Although there have been no reports of COVID-19 behind custodial walls, Justice Crosbie said she has no hesitation in agreeing with Mr. Laurin’s lawyer, Jeff Rybak, “that it is a matter of when, and not if, the jails are affected.”

She then expressed some skepticism about the jails’ ability to handle the risk of disease. “In light of much-publicized reports of questionable, if not disgraceful, conditions at some detention centres in recent times, it gives a sentencing judge pause to consider how the pandemic will play out within their walls.” She made the comments in a draft ruling obtained by The Globe and Mail. She delivered the ruling orally in court.

Marc Laurin, a 31-year-old sociology student at the University of Toronto, had sped up to 119 kilometres an hour – the speed limit was 50 – to beat a yellow light in a busy area. His car struck and killed motorcyclist Gary Huffman, 71. A victim-impact statement filed by a family member said Mr. Huffman had spent years caring for his elderly mother, who died just a few months earlier at age 99. He had just started living his life free of his caregiving duties, Justice Crosbie said.

The prosecutor, James Dunda, asked for a five-year sentence, and Mr. Rybak 12 to 24 months. When the pandemic worsened, Justice Crosbie asked the two sides to make further submissions. Mr. Dunda said the pandemic should not affect the sentence in this case. Mr. Rybak said that, as in cases involving immigrants who can be deported if they receive more than six months in jail, sentences may be adjusted slightly downward to avoid harsh extra consequences.

But Justice Crosbie said a strong message needed to be sent to Mr. Laurin and to society regarding dangerous driving. Mr. Laurin had a long criminal record before causing Mr. Huffman’s death in August, 2018, and fled the country almost immediately afterward. He did, however, phone the police from abroad and admit to the crime; he was arrested on his return, and pleaded guilty.

Mr. Rybak said judges are prepared to keep people out of jail where they reasonably can – but the judge did not see it as reasonable in this case. “Anyone we can keep out of jail right now, the system wants to keep them out of jail,” ​he said in an interview.

Anthony Moustacalis, a criminal lawyer who was not involved in the case, said courts have the power to review the continued custody of an individual who faces a dangerous situation. The individual’s lawyer would need to bring a habeas corpus application, a means of arguing against an unjust detention.

“It may become the weapon of choice for people in custody, either provincially or federally, if dangerous health concerns are not addressed,” he said in an e-mail.

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The Globe & Mail

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