Convicted fraudster released on bail due to COVID-19 – although pandemic is no instant get-out-of-jail-free card

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Toronto (May 8, 2020) – The convicted fraudster and disbarred lawyer, Marshall Kazman, was released on bail after four months in prison. The Court of Appeal for Ontario granted the application pending an appeal of his conviction to the Supreme Court of Canada (SCC) on the grounds of his health conditions and his age, which makes him highly vulnerable to COVID-19 if forced to remain in jail. The court stressed that the ruling, in this case, does not mean that COVID-19 becomes a get-out-of-jail-free card. Kazman was at the center of a multi-layered, sophisticated scheme to fraudulently obtain small business loans from Canadian banks. The draft release order provides for Kazman’s release until the SCC’s decision on the leave application, or August 30, 2020, whichever is sooner.

The Court of Appeal for Ontario granted Marshall Kazman’s application in which he seeks bail pending his application for leave to appeal to the Supreme Court of Canada (SCC) last month. The convicted fraudster is now out of prison after he served four months of his sentence. The court’s reasons included his high vulnerability to COVID-19 if forced to remain in jail.

Release order for convicted fraudster

Kazman filed his application with the Court of Appeal for Ontario in which he seeks bail pending his application for leave to appeal to the SCC. To be granted bail in the meantime hardly ever happens. But these are no ordinary times. The draft release order provides for the Kazman’s release until the SCC’s decision on the leave application, or August 30, 2020, whichever comes first.

Nevertheless, Kazman is not awaiting trial and presumed innocent. His conviction has now been upheld by two levels of the justice system. In 2011, Kazman was charged with five counts of fraud over $5,000, one count of money laundering, and one count of committing the frauds for the benefit of a criminal organization for a multi-layered, sophisticated scheme to fraudulently obtain small business loans from Canadian banks. In 2017, the court convicted the since 2008 disbarred lawyer on all charges and sentenced him to seven years in prison. Furthermore, the court ordered him to pay almost $800,000 in combined restitution and fines in lieu of forfeiture. Only in January of this year, the court dismissed his appeal.

Read more: Appeal court holds up sentence against disbarred lawyer for business loan frauds

A decision that mirrors the exceptional circumstances

Although bail is rarely granted before the SCC rules on an application for leave, the decision must be evaluated with respect to the current pandemic.

The court agreed with the argumentation of Kazman’s attorney Cate Martell that his well-documented health conditions and his age place him within a vulnerable group that is more likely to suffer complications and require hospitalization if he contracts COVID-19. This greater risk of suffering a severe illness from the novel virus makes it even more important to practice social distancing for Kazman, which is ‘difficult, if not impossible’ while being incarcerated according to the court.

The court also argued that ‘the need for social distancing is not only a question of protecting a given individual but also the community at large. In the prison context, a COVID-19 outbreak may turn into wider community spread as prison staff return home.’

Despite there is no evidence of any COVID-19 cases at the prison where Kazman was located according to the Crown, the court was ‘persuaded that the applicant’s detention is not necessary is in the public interest’ and released him on bail. Judge Alison Harvison Young stated that ‘the particular circumstances of this case justify release.’

COVID-19 is no get-out-of-jail-free card

The court stressed in its decision that the ruling, in this case, does not mean that Covid-19 becomes a get-out-of-jail-free card. ‘I emphasize that this does not mean that bail will be granted in any case where COVID-19 is raised as an issue,’ clarified Justice Harvison Young.

For example, the application for leave pending the appeal of his convictions because of the threat of COVID-19 of Adekunle Johnson Omitiran, a convicted serial fraudster using sophisticated credit card fraud schemes has been turned down by the Court of Appeal for Ontario. The pandemic as a factor to be considered, did not tip the balance in favor of granting bail in this case.

In Kazman’s case, the court determined that there are no lingering public safety or flight risk concerns, that he was a first offender, and that his crimes were serious but not violent. The court argued in Omitiran’s case that there is a likelihood of reoffending and that he ‘has a significant record both for disregarding court orders and for committing similar frauds. He was on probation when he committed the offenses now under appeal.’

In a judgment, Toronto Superior Court of Ontario Judge Anne Molloy denied an alleged gun possessor bail despite acknowledging the increased risk of contacting COVID-19 while in custody during the pandemic. ‘This is a very difficult time to be incarcerated, particularly prior to trial while under the presumption of innocence and without any clear idea when a trial might occur,’ wrote Justice Molloy.

She explained that the circumstances of the pandemic are simply ‘one of the factors’ considered when determining whether someone should be detained ‘to maintain the integrity of the justice system and protect the community,’ wrote Molloy.

Provinces look to minimize the risk of COVID-19 outbreaks in correctional facilities

Reportedly, two inmates – one in B.C. and one in Quebec – have died from complications related to COVID-19 in federal Canadian prisons. The provinces started to take measures to prevent the virus from raging through detention institutions. The Canadian Bar Association and the Canadian Civil Liberties Association have endorsed ‘releasing those who can safely be released from custody’ to reduce the inmate population in Canadian correctional facilities in the wake of the Coronavirus pandemic.

Since mid-March, almost one-third of Ontario’s prison population has been released in order to minimize concerns about the risk of Coronavirus transmission. In Brampton, the province had to shut down a correctional facility after at least 60 inmates and eight workers were tested positive for COVID-19.

Manitoba Justice reported that it focuses on getting those in remand out of jail. Hence, the jail population of the province declined by almost 30 percent since February.