Citing the potential for Covid-19 entering Yellowknife’s jail, a defence lawyer is seeking bail for one man convicted of manslaughter and another convicted of drug offences.
In the NWT Supreme Court on Monday, Peter Harte said he would be applying for bail on behalf of Colten McNeely and Darcy Oake. Harte expressed concern over the potential for Covid-19 to reach the North Slave Correctional Complex.
Last week, the NWT’s Department of Justice made public some of the steps it is taking to address the threat of the pandemic reaching northern jails.
Fifteen defence lawyers, including Harte, had earlier signed a letter expressing “grave concern” about what would happen to inmates if an outbreak occurred inside an NWT facility.
McNeely and Oake have been at the heart of two well-known recent court cases in the territory.
In January, Justice Andrew Mahar found McNeely guilty of manslaughter in the death of his friend Lloyd Edgi during a drunken early-morning confrontation in Fort Good Hope. McNeely’s sentencing hearing is expected to be held over two days in Fort Good Hope in October.
“I want to ask the court to consider a bail hearing for Mr McNeely,” said Harte on Monday. “When we concluded his trial matter, Covid-19 was not on the horizon. Now it appears he will likely be on remand for an extended period of time.”
Harte was calling into court by phone, as was the prosecutor. Prisoners appeared by video link from the jail.
Harte suggested McNeely could stay in Norman Wells until the sentencing hearing.
Court records show McNeely has a limited criminal record with no prior convictions for violence.
He had initially faced a charge of second-degree murder. In finding him guilty of manslaughter, Mahar characterized the case as extremely difficult for the Crown to prosecute – based as it was, he said, largely on “circumstantial evidence and intoxicated witnesses.”
At his judge-alone trial last fall, McNeely testified he was 26 when he stabbed 28-year-old Edgi – described as a loving father and avid all-season athlete – in the heart in self-defence in September 2017.
“I am not convinced he had the intention to kill or cause bodily harm,” said the judge. “I am not willing to accept that he is guilty of murder, but of manslaughter.”
‘Increased risk’ from Covid-19
In January, Justice Shannon Smallwood found Oake guilty of importing and possessing furanyl-fentanyl – a synthesized designer drug considered 50 to 100 times more potent than morphine – and criminal negligence causing bodily harm after a friend of his severely overdosed on the substance.
At the start of his trial, Oake pleaded guilty to a separate charge of trafficking furanyl-fentanyl.
Harte said Oake wanted the court “to consider a bail application and deal with sentencing once it’s clear that he’s not at increased risk of … injury, or terminal illness is the better description, as a result of the Covid-19 situation.”
Chief Justice Louise Charbonneau, presiding, said: “Given the nature of the application, it should be heard sooner rather than later.”
In the fall of 2016, Oake – 22 at the time – used about $500 in bitcoin and searched the “dark web” for vendors of illicit drugs.
Finding Xanax, a brand of anti-anxiety medication, to be cheaper than he thought on an English-language website, he also ordered furanyl-fentanyl and cigarettes.
Courtney Janes, a friend of Oake’s, overdosed on his furanyl-fentanyl and was in hospital for several days.
“He was a drug addict in need of money,” said Smallwood, the judge, in January. “He intended to sell furanyl-fentanyl to make money.”
Oake was denied bail in December 2018. He had earlier been given a chance to be free until trial, but did not attend a mandated treatment program in BC. Instead, he came back to Yellowknife and was subsequently arrested on new charges said to involve cocaine and a replica firearm.
Also on Monday, Harte confirmed he had abandoned plans to argue all charges be stayed as Oake’s trial was unreasonably delayed.
Harte had surprised the court, following Oake’s conviction, when he filed an application to have the charges stayed following a 32-month delay in proceedings.
However, it has been determined some of that delay was a result of the time Justice Smallwood took to consider her verdict.
NWT says jails are prepared
In a letter dated March 23, a group of 15 defence lawyers asked the NWT corrections system to publish jails’ plans for handling Covid-19. The lawyers also asked the territory to consider releasing some inmates to protect them from the possible consequences of a jail-based outbreak.
“Our clients are at serious risk of rapid transmission and exposure to the virus, should it make its way into the institutions, and do not have the freedom to protect themselves,” stated the letter.
“An outbreak of Covid-19 in any one of the territory’s jails could be catastrophic.”
The territory says its jails are currently not full and each inmate has their own cell, allowing physical distancing. Officers are reviewing infectious disease procedures, the NWT government said, monitoring inmates for symptoms, and wearing gloves, a gown, and a procedural mask if working near an inmate who is symptomatic.
Personal visits have been replaced by additional phone calls.
The majority of inmates in NWT jails are in remand custody, which means they either haven’t been convicted of a crime or are awaiting the outcome of their cases, such as in the case of McNeely and Oake.
The lawyers’ letter also called on the GNWT to “identify all remand prisoners who are vulnerable to Covid-19 due to age or pre-existing health conditions and ensure they have contacted legal counsel about bail.”