Jails are not safe for inmates and courts must recognize this for detentions, writes Michael Spratt
Since the start of the COVID-19 crisis the federal government has said it is concerned about the spread of the virus in Canadian jails and prisons.
Speaking to reporters last week, Prime Minister Justin Trudeau highlighted the increased COVID-19 risks inmates face. “We are very concerned about the fact that our correctional institutions could be places … where there could be greater vulnerability to COVID-19.” Trudeau was clear that the government need to do everything they could to keep “everyone safe in this country.”
And as early as March 13, the Ontario government said it recognized the dangers posed by COVID-19 to its correctional facilities and promised “decisive action to contain the virus and protect all Ontarians.”
Trudeau and the Ford government are right. Inmates are people deserving of humane treatment. But even if we don’t care about humane penal policy, medical resources such as personal protective equipment and ventilators used to treat inmates for COVID-19 -- because we haven’t taken all necessary preventative measures -- are diverted from other hot spots in the broader community. So, we should all be worried about the fate of those behind bars.
There was, and still is, good reason to be worried that prisons will become hotspots for infection and transmission of the deadly virus.
In both federal and provincial facilities, inmates are unable to take even the most basic steps to prevent infection and transmission. Physical distancing is virtually impossible, especially in our over-crowded provincial jails. Even basic hygiene, like handwashing, can pose a challenge with inmates often denied hand sanitizer and cleaning products. And as for facemasks, gloves and other protective equipment — forget about it.
Our jail population is made up of some of the most marginalized and vulnerable people in society. They are indeed at risk.
But with the virus spreading in the community and the death count climbing, it seems that Trudeau and Ford’s prosecutors and prison officials are less concerned that there is a COVID danger behind bars.
Last week, my jaw almost hit the courtroom floor when a federal prosecutor argued that, despite the risks of COVID-19, my client should be detained because even if he contracted the virus he was unlikely to die.
Apparently, a low risk of fatality is now the government’s measure for keeping everyone safe.
And make no mistake, our jails were not healthy, clean or humane before this pandemic.
Last December, in a damning decision, the Ontario Superior Court ruled that conditions at the Toronto South Detention Centre were “inhumane and fail to comport with basic standards of human decency.” Inmates were often confined to crowded small cells for as long as seven days, without access to showers. Clothing and bedding were often stained with urine, feces or blood, and there were bedbug infestations and other unsanitary conditions that led to untreatable infections.
The court ruled that those horrendous conditions were a “deliberate policy choice to treat offenders in an inhumane fashion … rather than devote appropriate resources to the operation of the institution.”
But the Ontario government says things are better now.
In a series of propagandistic “information notes” that prosecutors are routinely filing as gospel in court, the Ontario government claims that it is “confident in the care we are providing our inmate population.” The government goes on to say that given the size of the jail population the risk of inmate infection is “very small.”
It turns out that the virus does not care about political spin. Shortly after the government made its claims of great progress and safety, 82 inmates and 22 staff at The Ontario Correctional Institute in Brampton tested positive for COVID-19.
With infection rates rising and with low testing rates across Canada, including for less than one per cent of Ontario’s inmates, we are in the dark about the scope of the problem behind bars.
There may have been some progress toward safety following a 32-per-cent reduction in Ontario’s inmate population between 2013-2014 and 2017-2018. And the Ontario government should be given some credit for allowing offenders who serve their sentences on the weekends to do so at home. But that was low-hanging fruit. To date, neither the federal nor Ontario government has been transparent about the early release of offenders serving non-weekend sentences, and it seems that only a handful have been sent home.
The majority of the prison population reduction is a result of the advocacy of defence lawyers seeking bail for their clients and the overwhelming weight of Ontario judicial decisions that recognize, even for serious criminal cases, that the COVID-19 pandemic may tip the balance toward release on bail.
But this is still not enough. There is no room for complacency. We cannot declare victory and safety in the jails just because some progress toward safety has been made. Our jails are still at risk of a COVID-19 explosion.
As physician and epidemiologist Dr. Aaron Orkin laid out in an affidavit that has received widespread judicial acceptance, the presence of a health threat cannot be determined by whether there has been progress made toward curbing It.
Ask yourself, would you be satisfied with a lead-footed driver speeding at 160 km/h in a school zone saying that he has made great progress toward safety because he had reduced his speed from 200 km/h?
Of course not, and we should not be satisfied with the safety arguments that the government is making in court. We are still on a collision course with disaster.
For weeks both the Ontario and federal governments told us it was taking COVID-19 seriously. But while both levels of government were patting themselves on the back and their prosecutors were telling courts that jails were safe, guards were not allowed to wear masks, inmates were kept in close quarters, detainees who spoke out were punished, and there was new infection.
Recent outbreaks in Brampton and Hamilton, Ontario, and at institutions across the country prove that Trudeau and Ontario’s Ford government may be happy to pay lip service to the safety of Canada’s jail population, but in reality they are unwilling to take the decisive action needed to keep everyone safe.