The COVID-19 pandemic has cast a giant flood light on significant deficiencies in Canada’s prison system, says Ontario criminal lawyer Michael Spratt.
Concerns over the pandemic’s potential impact on prison populations prompted advocates and lawmakers to call on the government to release low-risk offenders, inmates nearing the end of their sentence, the elderly and vulnerable inmates to mitigate the risk of spreading COVID-19.
“This is highlighting a longstanding failure of Canadian penal policy where we have seen punitive conditions, we have seen conditions like prolonged solitary confinement that are tantamount to torture,” said Spratt, a lawyer who often appears as an expert witness before the House of Commons and Senate to give expert evidence on criminal-law policy and legislation.
“In Ottawa, at our local jail, we have seen women give birth in their cells because guards have ignored their cries for help,” Spratt said during a telephone interview April 22.
“In Ottawa we have also seen individuals sleep in mouldy shower cells because of overcrowded conditions. Unfortunately, we view our jail population as disposable and invisible and this has led to decades of abuse and mistreatment and that tip of the iceberg is being exposed in the current crisis.”
Spratt said inmates are at great risk, especially at the provincial levels because jails are overcrowded and unhygienic.
“As recently as January of this year the Ontario Supreme Court chastised the Ontario government for preferring financial savings over hygiene and the health of inmates. In that case, an inmate was given bedding and clothing soiled with blood and feces and human waste.
“At the best of times our jails are unhygienic and filthy and that only makes it more dangerous during the COVID-19 crisis.”
A group of inmates at the Saskatchewan Penitentiary in Prince Albert contacted Spratt to consider a legal challenge to how the COVID-19 pandemic is being handled within the prison system and what inmates’ rights are. Spratt said he directed the group to Saskatchewan lawyers who may be able to assist.
Spratt said it’s difficult for inmates to take action on their rights.
“Especially at a time like this when inmates are being denied basic health accommodations and when the jails’ solution to COVID-19 seems to be locking inmates more strictly, denying them privileges and segregating them in solitary confinement. Those conditions could well be found to violate the Canadian Charter of Rights and Freedoms.
“(Inmates) are not usually a person that comes from a privileged place in society and can find it very difficult to seek redress in courts or even with the public, speaking with journalists and other members of society, to take any action to enforce their rights.”
In March, the Saskatchewan Ministry of Corrections and Policing said it was putting measures in place to decrease the risk of COVID-19 spread. They said they were using existing infrastructure and program space in correctional facilities to create additional separation between offenders and staff. They also stated they were restricting the movement and placement of offenders within a facility and providing personal protective equipment to corrections staff and offenders based on criteria established by the WHO and public health authorities.
Spratt, however, says lockdowns, segregations and isolating inmates isn’t that effective at preventing infection.
“Once an infection is in a jail it sweeps throughout that jail very quickly. In Ottawa, a couple months ago there was a gastrointestinal infection at the Ottawa Carleton Detention Centre and it ended up running like wildfire through the jail. That’s just the nature of the disease, the nature of the virus and the nature of the type of confinement that we see in our jails.”
Adding to this problem is the fact that jails are high traffic areas.
“Guards come in and out,” said Spratt. “Cleaners come in and out and inmates come in and out of the jail transferred from institutions and admitted from the communities. So jails left unchecked are a perfect vector to prolong the pandemic and put our community’s health and safety at risk.
“We have to remember that in the federal system we have an aging inmate population who are very at risk and in the provincial systems we have a large number of inmates with pre-existing health conditions that suffer from addictions and other background factors that might increase their susceptibility to the virus and that most of our inmates come from marginalized backgrounds who represent some of the most at risk in our community for infection, transmission and unfortunately, death.”
Decarceration the only solution
“Decarceration is the only way to ensure our jails are safe,” said Spratt. “We have to go further than looking at elderly and non-violent offenders. There are a large majority of individuals who have committed violent crimes who, under the right condition, with the right supervision and strict monitoring, can also be released. That’s the only way to prevent outbreaks in our jails and protect the health of the community.”
Protecting inmates’ health also protects communities, Spratt maintains.
“We have to realize for every inmate, every mask or PPE or ventilator that is used because of an outbreak at our jail, that is less resources and equipment that can be deployed in our community.”
On April 20, Public Safety Minister Bill Blair, during a media briefing, said that hundreds of people have been released early by the parole board due to the COVDI-19 pandemic. No specific numbers, however, were provided.
Spratt said in Ontario they saw early progress of decarceration with about 25 per cent of inmates being released on bail.
“That’s mostly because of defense lawyers bringing bail applications,” said Spratt. “But lately we have seen a backsliding with respect to measures. We have jails and the government saying that they are safe and the risk is minimal despite the fact that we had 60 people infected at the OCI facility in Brampton two days ago and we have crown attorneys who are very disingenuously standing up in court and suggesting that if you are not an inmate who might die that you shouldn’t be released for your protection and there is no risk to inmates anyway because we have done enough to manage the situation, which is not medically correct and it’s not a humane or a reasonable approach to dealing with the situation.”
Governments aren’t doing enough to protect inmates and must to be held accountable, said Spratt.
“We have seen the government say some of the right things. Bill Blair has talked about encouraging parole officials to release individuals. Even Doug Ford has said that we need to look at the use of temporary absence permits to release individuals from jail but unfortunately, the politicians words aren’t matching up with what has happened. Only a handful of people have been released on temporary absence permits and the federal government has resisted and actively opposed individuals who are close to the end of their sentence, who are vulnerable to COVID-19, to being released. So unfortunately, even when the politicians seem to be saying the right things, they still find themselves incapable of factually following through on those words so it’s important that we not only highlight the problem but hold politicians to account when their actions don’t match their rhetoric.”