Alex Kurial/Local Journalism Initiative

A Sarnia lawyer has kept her client from jail by arguing he would be “in peril if he remains in custody at the Sarnia Jail.”

Brent Dodge, 35, appeared in court from jail Feb. 10 pleading guilty to a pair of break and enters, a theft, and a bail breach. In June 2020, Dodge broke into a storage unit in Lambton Shores and stole a mini-bike. Last month he unsuccessfully attempted to break-in to several businesses on London Rd. in Sarnia. By showing up in the city he broke a bail condition to stay out of Lambton County.

Sentencing would have been relatively straightforward pre-pandemic. The Crown asked for 90 days jail due to Dodge’s criminal record. With time served he’d have just over two months remaining.

But a COVID-19 outbreak that has rocked the Sarnia Jail made the proceedings anything but normal. There were 14 active cases during Dodge’s sentencing, this jumped to 34 inmates and four corrections officers on Feb. 16.

Defense Lawyer Sarah Donohue says the health of her client would be in grave danger if more jail time was enforced.

“The defense position – while somewhat unique – is one of time served,” says Donohue.

Dodge has a number of breathing conditions that put him in the high-risk category if he catches the virus.

Donohue cited a case from Windsor Superior Court last year in her argument. Robert Hearns, 47, from Leamington, was originally charged with attempted murder but plead guilty to aggravated assault following a June 2018 attack on a woman in her home. She was beaten so badly that she spent weeks in a coma and months in the hospital.

But when it came time for sentencing in May, Justice Renee Pomerance said given the pandemic, Hearns’ 667 days in custody – enhanced to 1,001 days – was enough time behind bars.

“As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection, or because of restrictive lockdown conditions aimed at preventing infection,” Pomerance said at the time, and Donohue read to the court.

“Punishment is increased in those circumstances not only by the physical risk of contracting the virus, but also by the psychological effects of being put in a high-risk environment with little ability to control exposure.

“The question is whether the pandemic warrants a reduction of the sentence yet to be served… Given the pandemic, it may be that a shorter sentence of shorter duration is not only tolerable, but appropriate in the nature of personal and public safety.

Donohue says Dodge’s situation, especially given his medical issues, falls in line with the Hearns ruling that further jail time would be undue punishment. Crown Attorney Sarah Carmody disagreed and asked for the remaining time to be carried out.

Justice Deborah Austin says Dodge has “a complex medical condition to be managed by Sarnia Jail in the context of an outbreak… It means not only added burden to the Sarnia Jail, but added risk to Mr. Dodge by being incarcerated.”

Austin says Dodge perhaps shouldn’t have put himself in the position to end up in jail but “because of a serious set of respiratory problems, it is an onerous burden to put on the jail at this time, and also a risk to an extremely vulnerable person in exposure to COVID-19. Those factors… cause the court to conclude that a sentence of shorter duration is not only tolerable, but appropriate in the interests of personal public safety.

“I do not, in factoring in the decision I’m making today, want to trivialize this offending behavior, because it is serious, and this community deserves the respect of law and deserves significant consequence for Mr. Dodge,” she says.

Dodge, who says the experience has been “a huge eye-opener for me,” was released and returned to Chatham to start his 12 month probation. He remains banned from Lambton County, and cannot contact or go near the person he stole the mini-bike from. He’ll also pay $5,627 restitution to the London Rd. business he damaged during the attempted break-in.