N.W.T. judge considers bail request related to COVID-19 risk

An N.W.T. Supreme Court judge is considering an unusual bail application based on the risk prisoners face of contracting COVID-19 while serving time in the territory's jails.

Darcy Oake wants to be released until he is sentenced but, unlike most people applying for bail, he has already been found guilty of the crimes he's accused of committing.

The Yellowknife man was convicted of trafficking furanyl fentanyl, possessing it for the purpose of trafficking, illegally importing the drug to Canada and criminal negligence causing bodily harm. Oake was convicted of the last charge for providing the drug to a friend who subsequently overdosed.

He was released on bail before being convicted of those offences, but sent back to jail after being caught with cocaine. Oake applied for bail twice after that, but was denied both times.

His father, Dean Oake, is offering to put up $5,000 bail and to allow his son to stay in his home under house arrest while awaiting sentencing. No date has been set for the sentencing hearing.

COVID-19 risk

Oake's lawyer, Peter Harte, argued on Tuesday that his client should be released to reduce the chances of him contracting the novel coronavirus.

Tuesday's court hearing in Yellowknife focused on steps being taken to reduce the risk of the illness making its way into the North Slave Correctional Complex (NSCC), where Oake is being held.

No cases of COVID-19 have been confirmed in N.W.T. jails. The warden of NSCC testified by telephone that three inmates at the jail have been tested for it, and all were negative.

John Nahanni said there are currently 91 inmates at the facility, which can hold up to 148. He said each inmate has their own cell.

The warden said inmates and staff are given information about preventing the spread of COVID-19. Dinner times are stretched out so there are no more than four inmates at a time lining up for food. All inmates now eat their meals in their cells, said Nahanni.

The number of inmates allowed in the gymnasium has also been reduced to allow room for physical distancing.

Any inmates who show symptoms of COVID-19 are tested and confined to their cells until test results are known. But Nahanni admitted there are limits to the protection. 

"What steps do you take to detect those coming in who are not symptomatic?" asked Harte.

"We do the best we can with the information we have and the resources we have," said Nahanni.

Underlying health issues

Oake testified that he is asthmatic, putting him in a higher risk category for COVID-19, which attacks the respiratory system. He said he uses two inhalers for relief when he has asthma attacks.

Oake disputed some of Nahanni's testimony.

"I'm not saying he was lying about anything … but the thing is he mentioned he thinks it's possible to stay six feet away from others, and I disagree," Oake told the court.

"Everyone, for one, doesn't listen to rules. The only way you can stay six feet apart is if you stay in your cell all the time, and then you'd still need to get food." 

Oake said since January, he has submitted three requests to see a doctor at NSCC. He wanted to know why he was no longer being administered suboxone, a drug that alleviates opiate withdrawal symptoms.

Oake said he asked repeatedly about the status of his requests, but received no response other than "you're on the list." He said he finally got to see a doctor on April 8, the day after Harte emailed a territorial justice department lawyer about the requests.

Harte offered up a case of another client as evidence that "some [inmates] at NSCC fall through the cracks."

The inmate was sentenced Jan. 21. During his sentencing hearing, it came out that the man had been diagnosed with attention deficit hyperactivity disorder (ADHD) and also suffers from claustrophobia. At Harte's request, the sentencing judge recommended that corrections officials allow a doctor to examine the offender at NSCC.

Harte said on March 23, the prisoner contacted him and said he had yet to be examined by a doctor and was suffering from anxiety and claustrophobia. Harte contacted the man's case manager at NSCC, who said he would look into it. Harte said his client has yet to be examined by a doctor.

Justice Shannon Smallwood said she would give her decision in Oake's case on Friday.