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Ravi Jain

Bar calls for limited release of prison inmates, immigration detainees to stop spread of COVID-19

Wednesday, April 01, 2020 @ 9:32 AM | By Cristin Schmitz

Ottawa should release from detention, to the extent consistent with public safety, prison inmates and immigration detainees, says the Canadian Bar Association (CBA), which warns of a potentially “explosive situation” in enclosed institutional settings and “dire” consequences if people remain locked up to together as usual.

On March 30, the 36,000-member association wrote federal Public Safety and Emergency Preparedness Minister Bill Blair urging him to prepare, on an “urgent” basis, detailed action plans (easily viewed by the public) for preventing and treating COVID-19 among the thousands of people who are incarcerated and detained, as well as to consider “releasing those who can safely be released from custody in prisons and immigration detention facilities.”

Public Safety and Emergency Preparedness Minister Bill Blair

The influential group also urged Blair “to work immediately with your provincial and territorial counterparts to develop a comprehensive plan for all Canadian prisons and immigration detention facilities.”

“We believe that few situations are as potentially explosive and life threatening because of the COVID-19 pandemic as those within Canada’s prisons, jails and immigration detention facilities — for those detained and for the general public,” co-wrote Ravi Jain, chair of the CBA’s national immigration law section and Kathryn Pentz, chair of the association’s national criminal justice section.

The CBA’s call echoes that expressed by dozens of other advocates for prisoners, including the Canadian Civil Liberties Association and the Criminal Lawyers’ Association of Ontario (CLA). On March 31, jail guards in Ottawa refused to work their morning shift, citing the lack of screening of persons entering the facility, where inmates have also been denied access to their lawyers over health and safety concerns. Several provinces, including Ontario and Nova Scotia, have been reducing somewhat the number of incarcerated persons, after a review of the situation of individual offenders or persons on remand, and releasing them if it is consistent with public safety. That move has been supported in Ontario, for example, by collaboration amongst CLA volunteers, duty counsel, crowns, court staff and the judiciary.

Jain and Pentz noted that the CBA has raised concerns in the past about inadequate levels of health care in federal facilities, including crowded immigration detention facilities, and the fact that health care demands are only likely to increase with an aging prison population.

“Coupled with the close quarters in these facilities, limited access to hygiene and preventive products, and inability to act on social distancing recommendations from public health authorities, we believe the current situation may soon become dire,” Pentz and Jain warned.

Ravi Jain, chair of the CBA’s national immigration law section

The CBA pointed out that some jurisdictions in Canada have already directed Crowns making bail recommendations to examine whether it is really necessary to detain people, while other regions are considering for early release accused remanded into custody pending trial, or offenders who are sentenced for non-violent crimes.

“The long-term consequences of protracted detention during this health crisis cannot be overstated,” the CBA stressed. “In addition to the human rights implications for incarcerated and detained individuals, there could be significant health consequences for the general population from not addressing this situation quickly,” Pentz and Jain said. “If the virus spreads unchecked in these facilities, workers are at increased risk of infection. When those workers return home, their families and the surrounding population with whom they have contact are at increased risk. Prisoners or ‘new arrivals’ coming into or leaving facilities could similarly pose significant health risks to fellow prisoners and detainees, staff, Canadian Border Services Agency officers, legal counsel and visiting family members.”

Jain and Pentz noted that other options for Ottawa to consider include expanding the use of conditional pardons under section 748 of the Criminal Code; asking Correctional Service of Canada (CSC) and the National Parole Board to expedite the process for applying for parole by exception under s. 121 of the Corrections and Conditional Release Act; and expanding the use of, and relaxing requirements for, temporary absences and intermittent sentences.

“The overuse of lockdowns, eliminating outdoor recreational time, and ending personal visits will impact the physical and mental health of those detained,” Pentz and Jain noted. “The long-term consequences of protracted detention during this health crisis cannot be overstated.”

CSC announced March 30 the first two confirmed cases of inmates with COVID-19 in a federal prison. Nine employees who work at the same maximum security facility, Port-Cartier Institution in Quebec, also tested positive.

CSC said in a press release that the two inmates are being medically isolated from the general inmate population and the institution has been on lockdown as a precautionary measure. “We are closely and carefully following direction from public health officials and monitoring these inmates, while following strict protocols to avoid further spread,” the prison service said. “We have dedicated health care in our institutions with nurses and doctors on hand to monitor and assess any inmates who develop symptoms.”

CSC said it has taken preventative measures at all of its operations across Canada. In addition, to prevent further spread at Port-Cartier, CSC said it: notified all those who may have come in contact with those who tested positive; immediately cleaned the prison, including thoroughly disinfecting all high-touch surfaces in addition to existing enhanced cleaning measures; temporarily implemented the use of masks for workers on site; enhanced active screening of anyone who must enter the institution, including taking the temperature of everyone working at the site for the duration of the outbreak; and reinforced prevention measures, such as physical distancing, hygiene practices and having everyone self-monitor their health.

The CSC has also suspended visits to inmates; all temporary absences (unless medically necessary); work releases for offenders; and all inter-regional and international transfers of inmates. “We also have suspended programming, non-essential work in our institutions and have implemented modified routines to limit comings and goings,” the CSC said.

The federal prison service disclosed that, as of March 28, 50 COVID-19 tests had been conducted on inmates, with 45 testing negative, two testing positive, and three results pending. CSC also said it “takes immediate action when an employee is symptomatic, including thoroughly cleaning and disinfecting the space and ensuring the employee self-isolates at home until cleared to return to work.”

The CSC noted that because inmate visits have been suspended as a result of the COVID-19 pandemic, it has waived telephone, accommodation and food deductions and added minutes to inmates’ telephone accounts. “This will help them continue connecting with their family and support networks.”

When The Lawyer’s Daily asked whether, and how, the approach of Ontario’s Crowns to bail recommendations and sentencing submissions has changed in light of the increased safety risks of incarceration during the COVID-19 pandemic, the Ontario Ministry of the Attorney General did not disclose any specific adjustments.

“The protection and safety of the public is always a paramount concern and we continue to monitor the evolving situation on COVID-19,” Ministry spokesperson Brian Gray told The Lawyer’s Daily by e-mail. “In general, we can advise that the decision to grant or deny bail is complex and based on the specific circumstances of each case. The Crown will make recommendations on bail in consideration of the liberty interests of the accused and the Charter right to reasonable bail balanced against societal interests in public safety and confidence in the administration of justice,” Gray said. “In each case, the judge or justice of the peace considers a number of factors in reaching that decision, including the individual circumstances of the accused person and the nature and circumstances of the alleged offence.”

Ontario announced March 13 that it was granting intermittent inmates (who are considered low-risk and who serve time on the weekends) temporary absences from custody, and temporarily halting personal visits. The province later said that, building on these changes, it was implementing amendments to Regulation 778 under the Ministry of Correctional Services Act to allow senior corrections officials to expand the use of temporary absences, and for the Ontario Parole Board to use alternatives to in-person meetings.

“Going forward, correctional services will have the option to issue temporary absences beyond the current 72-hour maximum,” Ontario said in a March 20 press release. “This means those serving intermittent sentences, who have been granted a temporary absence, will not have to report to a correctional facility every weekend, which will avoid cycling individuals back and forth between the community and a correctional facility.”

Ontario said that, in addition, the longer-term temporary absences will allow for early release of those inmates who are near the end of their sentence. “To ensure public safety, inmates would be carefully assessed to ensure they are a low risk to reoffend. Those inmates who have been convicted of serious crimes, such as violent crimes or crimes involving guns, would not be considered for early release.”

Ontario said its second regulatory amendment will allow the Ontario Parole Board to hold hearings by electronic or written means, rather than solely in-person.

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