The court said BC law does not say that being in custody during a pandemic is a mitigating factor
The period that a criminal defendant spent in medical isolation due to COVID-19 does not count as a mitigating factor in sentencing, the British Columbia Court of Appeal ruled on Monday.
The appellate court granted the defendant leave to file an appeal but dismissed his appeal of a seven-year prison sentence. Justice Gail Dickson authored the opinion. Justices Karen Horsman and Margot Fleming concurred.
In October and December of 2020, Cruz Joseph engaged in unprovoked attacks on four strangers and near strangers. The incidents included pointing a small black imitation handgun at a driver, striking a man with the flat side of a machete blade and chasing him outside a Canadian Tire, and striking two other individuals with a machete in downtown Vancouver.
Joseph was homeless, and a psychiatrist later diagnosed him with psychosis, severe substance disorders, and antisocial personality disorder – all of which she said may have driven the offences.
The defendant spent 855 days in pre-trial custody, during which he was medically isolated three times due to COVID-19. While the sentencing judge considered several mitigating factors, including Joseph’s guilty plea, expression of remorse, and stabilization while in custody, she declined to consider his COVID-19 isolation periods.
The judge noted it was “not the law in British Columbia that the fact an individual was in custody during a global pandemic is a mitigating factor” and added that the province’s courts “have so far declined to give extra credit for that reason alone.”
She rejected Joseph’s argument that he should receive concurrent sentences for two of his attacks and ordered consecutive sentences instead.
According to Monday’s decision, Joseph appealed, arguing that the authorities that the judge relied on “were decided in the early days of the pandemic, before its harsh impacts were fully and generally appreciated by the courts.” He also challenged the consecutive sentences.
The BC Court of Appeal agreed with the lower court. Noting that the sentencing judge “plainly appreciated the nature of [Joseph’s] request on the COVID-19 issue,” the judge rightly “concluded that he had failed to provide a sufficient evidentiary foundation to justify considering” the isolation periods as a mitigating factor.
“I see no error in this conclusion given the state of the record, or in the judge’s related treatment of Mr. Joseph’s medical isolation in the exercise of her discretion,” the court of appeal said.
Regarding upholding the consecutive sentences, the appellate court said the sentencing judge rightly “focused on the salient fact that the offences were committed on different days against different victims and involved different acts of violence.
“Her consideration of Mr. Joseph’s criminal record related to her determination of the appropriate sentence overall,” the court added.
In a statement on Monday, a spokesperson for the BC Prosecution Service said the service was “pleased with the court’s decision in R v. Joseph but has no further comment to make.”
Counsel for Joseph did not respond to a request for comment.
