In Canada’s Prisons, Virus Spread Is a Human Rights Issue

“In cases where prisoners are suspected of having contagious diseases, providing for their clinical isolation and adequate treatment of those prisoners during the infectious period.” — Rule 30 (d), United Nations Standard Minimum Rules for the Treatment of Prisoners, the Nelson Mandela Rules

Is Canada breaking the Mandela Rules when it comes to the well-being of federal inmates during the current pandemic?

And is the country’s prison system the next long-term care facility disaster of the COVID-19 scourge?

Sen. Kim Pate thinks it will be unless drastic changes are made to how the federal government deals with the men and women behind bars in the federal system.

“The commissioner has her head in the sand or is just pretending that she has everything under control. The minister needs to act now,” Pate said in an interview with The Tyee. “Every day I get calls from prisoners, staff and family members with new horror stories. I have been told that they don’t want to speak on the record because they are being threatened with reprisals; prisoners are being threatened with complete isolation, segregation or transfer to higher security. Prisoners and staff alike know they will be punished if it is discovered that they speak out.”

That is exactly what happened to Jonathan Harvey, an inmate who expressed his fears to the CBC about COVID-19 from inside the Edmonton Institution. Henry is serving a ten-year sentence in the maximum-security institution for drug and weapons offences.

After saying that asthma and high blood pressure would make him particularly vulnerable to the virus, Henry claimed that his guards treated COVID-19 like “a big joke.” For giving the interview, Henry had his phone card suspended for 45 days.

Although the Correctional Service of Canada claims it is following strict health and hygiene protocols, including twice-daily checkups of inmates showing symptoms of the coronavirus, Sen. Pate thinks the response has been “abysmal.”

“One in seven federal prisoners already has a respiratory condition or compromised immune system from a variety of causes — from hep C, diabetes, to HIV and more. They are high risk for COVID-19. They are in harm’s way. Most prisons are trying to prevent outbreaks by locking down entire prisons — effectively placing everyone in conditions of segregation or solitary confinement.”

Comparing the federal prison system to long-term care facilities, Sen. Pate notes that both present enormous dangers under a pandemic scenario. In Quebec, for example, half of the province’s COVID-19 deaths originated in public care homes. According to Canada’s Chief Public Health Officer, Dr. Theresa Tam, the same percentage holds at the national level — half linked to long-term care facilities.

But in the case of those facilities, the populations are almost always much smaller than those in federal prisons, and most of the staff are health-care professionals.

“These seniors’ homes, with some tragic exceptions, have health professionals on the frontline, and the virus is still spreading. In prisons, correctional officers are the frontline. Not only are they unlikely to know if symptoms are COVID-19 or a cold, but in prisons, security issues almost always trump health concerns. They aren’t trained for that,” Pate said. “There are reports of guards still having to come into close contact with prisoners without protective equipment; neither staff nor prisoners want this as they both know the risks. It could get very, very bad.”

There are mounting signs that the senator is right. An outbreak at the medium-security facility in Mission, B.C. has now engulfed 41 inmates and six correctional officers. A lockdown was initiated at the institution. No programs, no visitors, no exercise. The mind-numbing routine of prison had come down to two things for the inmates — being counted and being fed.

As reported by Global News, 33 correctional officers and 16 inmates have tested positive for COVID-19 at Joliette Institution for Women in Quebec — the highest number of infected officers at a single federal institution.

To date, 82 inmates and 56 correctional officers have been infected by the virus in federal prisons across Canada. To its credit, CSC is being transparent and up-to-date about the number of positive tests. But Sen. Pate believes those numbers reveal that lockdowns, the cancellation of temporary absences and prohibiting visits are not the answer.

“The ineffectiveness of these measures is underscored by the fact that the prison staff continue to come and go from communities. COVID-19 is now inside federal prisons and it is vital to start using mechanisms to move those who need health care into adequate treatment, and those who can be safely released into the community, in order to prevent prisons from being vectors for COVID-19 into the surrounding communities.”

As a passionate advocate of law reform and prisoners’ rights for nearly 40 years, the senator is under no illusion about the difficulty of getting a beleaguered public, under a kind of mass lockdown itself, to consider the plight of federal inmates. But she stresses that the consequences of not dealing with this issue directly affect the community at large.

“In small communities that have federal institutions like the Atlantic Institution in Renous, Grand Valley in Kitchener, or Mission in Abbotsford, a major outbreak of COVID-19 could overload the local health system very quickly — even if the communities themselves are doing well. It is in everyone’s interest not to ignore these federal inmates.”

Another thing that worries Sen. Pate is how Indigenous inmates could become the largest victim class of a prison pandemic.

“We have seen how this outbreak has been racialized in the United States. Relative to their percentage of the general population, Black Americans are dying at a disproportionate rate. That’s what will happen here if we don’t take action. Indigenous Peoples make up 30 per cent of the prison population, even though they are only five percent of the national population. It’s even worse for women. Of the 800 women in federal prison, 42 per cent are Indigenous. It’s easy to see who will suffer if there is a major outbreak inside.”

It all comes down to a single, stark question. What should the Trudeau government and the CSC do to protect Canada’s federal inmates from a possibly catastrophic outbreak during the COVID-19 pandemic?

The short answer is this: don’t leave them behind bars to catch the virus as a kind of additional punishment — at least not all of them. Sen. Pate says that if she were commissioner, she would begin with an immediate triage of all prisoners inside the system. That would be the best way to get a snapshot of the COVID-19 reality inside the walls.

“Medical and legal experts have made clear that a key part of triage within prison has to be identifying prisoners who can be safely and immediately released to the community to help stop the spread of COVID-19. It has been two weeks since [Public Safety] Minister [Bill] Blair called on Corrections and the Parole Board to consider options for release, but I am not aware of any news since then about concrete plans for release or indications that this type of triage is happening.”

Sen. Pate says that the next step after triage should be for the minister to direct the commissioner to set her staff, including parole officers and case managers, a single, vital mission — compiling and approving a comprehensive list of prisoners that could be released from custody to avoid being in the path of the pandemic.

Topping the list would be the 94 inmates who are still inside despite having been granted day parole. Other key categories of potential candidates for release would be those approaching parole eligibility, end of sentence, as well as non-violent offenders, and older inmates in poor health.

“If I were in charge, I would want to know who were the ones who had homes to go to, who have families who could care for them; or, conversely, they could care for. I would want to know the best bets for half-way houses. The commissioner of Corrections has the power to designate such places as hotels as housing for prisoners or parolees. They have done it before, in the face of other crises, like the great ice-storm, or major power failures. It is far better than holding them in prison, cheek by jowl, ripe for COVID outbreaks during this pandemic.”

The senator says the parole boards have told her that they are ready to meet “on weekends” and “wave recommendations through.” But so far, Ottawa has resisted what could be a very unpopular catch and release program.

“Trudeau is relying on his minister, and the minister is trusting the head of Corrections. CSC has near complete control over the information that enters and leaves prisons. Unfortunately, they also have a long and well-documented history of defending the indefensible, covering up mistakes, deflecting and denying responsibility. We are seeing a clear demonstration of why the minister needs to intervene. He cannot maintain confidence in this commissioner as she continues to put up roadblocks to public health recommendations.”

Sen. Pate’s argument for releasing some prisoners already has fans in the justice system. Although crown attorneys don’t like it, judges have begun to release some accused persons who would normally have been remanded to jail awaiting their trial. Some of the accused have been charged with violent crimes, including attempted murder. But as one judge put it in a report by Global News, the pandemic has “reordered the usual calculus.”

That has led to some innovative policies at the provincial level. Sen. Pate is advocating that the federal prison system take note, but most importantly, that they take immediate action.

British Columbia, for example, has temporarily released nearly 100 inmates, a decision taken expressly to prevent an outbreak of COVID-19 in the provincial jail system. Most of those released were serving “intermittent” jail terms, sentences served over weekends. A risk assessment was undertaken on non-violent prisoners to come up with the best candidates for the action.

Ontario has gone even further, releasing 1,900 provincial inmates who were considered “low-risk” to the community. Again, the purpose of the policy is to slow the spread of COVID-19. The same kind of inmate was chosen: either non-violent, close to warrant expiry, or serving their sentence intermittently.

In the case of Indigenous inmates, CSC commissioner Anne Kelly has wide authority and multiple options to release them. Under the Corrections and Conditional Release Act, there are several sections, including Sections 29 and 81 of the legislation, that allow for releasing prisoners due to health reasons, and the transfer of a prisoner to the care and custody of an Indigenous community. All that is needed is the will to use the legislation.

Justin Trudeau would do well to listen to this senator. Kim Pate has spent a lifetime battling for prison reform, prisoners’ rights and the protection of battered women on trial. For 25 of those years she was executive director of the Canadian Association of Elizabeth Fry Societies.

She is widely acknowledged as the driving force behind Madame Justice Louise Arbour’s royal commission into the dire events at the Kingston Prison for Women. She was key in the battle to end the cruelty of solitary confinement in the federal system. Following the passage of Bill C-83, absent the Senate’s amendments, she is now working with over 30 other senators to achieve that reality.

And she has seen the federal prison system up close and personal long enough not to fear the idea of releasing inmates.

“Every year, 5,000 prisoners enter the federal prison system and 5,000 others leave it. Leaving the system is the norm. Given COVID-19, letting some leave in an unusual way is nothing to be afraid of. The thing to be afraid of is doing nothing and leaving them where they are.”

Forcing people to shelter in place when that place happens to be prison, amounts to bringing back something that Bill C-84 abolished in 1976 — a death sentence.

There is no doubt what Nelson Mandela would have done.