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First federal prisoner released by warden due to COVID-19; counsel urges big push to release more inmates

Friday, April 17, 2020 @ 5:31 PM | By Cristin Schmitz


In a last-minute settlement, mere hours after Ottawa announced the first federal prisoner death from COVID-19, Correctional Service Canada (CSC) agreed to release early an ailing Ontario inmate in a move counsel says could presage the early release of many more elderly and infirm federal offenders due to the elevated risks they face from COVID-19.

Cancer patient Derrick Snow’s Federal Court Charter bid to compel the warden of Bath Institution to grant him an unescorted  temporary absence (UTA) for medical reasons — including the serious threat to his life from COVID 19 — was supposed to be heard by a Federal Court judge on April 17 at 9:30 a.m. Snow was arguing in his application for judicial review, and his motion for interim relief, that he met all the statutory criteria for a UTA under s. 116 of the Corrections and Conditional Release Act, and its regulations, and that denying him early release (or at the interim stage, stonewalling by staff, along with the warden’s alleged delay in responding to Snow’s counsel’s urgent requests for a UTA decision) would violate his ss. 7 and 12 Charter rights to life and security of the person, and to be free from cruel and unusual punishment.

However, the Department of Justice settled the case April 16 — just a few hours after the CSC announced it had experienced its first COVID-19-related death — an inmate from British Columbia’s Mission Institution — a hotspot of COVID-19 infection.

The warden of Bath Institution granted Snow, a 53-year-old non-violent offender with cancer, diabetes, chronic obstructive pulmonary disease (COPD) and a long list of convictions for theft, break and enter and other offences (mostly committed to feed his drug addiction) a UTA enabling him to be released April 21, and to reside alone in his sister’s London, Ont. duplex apartment, until his statutory release in July 2020, subject to such conditions as not consuming drugs, a curfew and electronic monitoring.

“I am approving the release of Mr. Snow, given his specific health circumstances, the absence of violence in his criminal history and an appropriate supervision plan to address his risk and need areas, combined with the increased ability to self-isolate as per the public state of emergency related to the corona virus pandemic,” Warden Ryan Beattie wrote in his decision.

Paul Champ, Champ & Associates

Snow’s counsel, Paul Champ of Ottawa’s Champ & Associates, told The Lawyer’s Daily that, to the best of his knowledge, his client’s case marks the first time in Canada that a warden has released a federal prisoner for COVID-19-related reasons.

“There were two [inmates] released by the [National] Parole Board, but he is the first to be released by a federal prison under temporary absence provisions, due to the COVID threat,” Champ explained. “The temporary absence provisions are much faster [than early release parole applications] as any warden can make the decision, and it doesn’t have to go through the parole process.”

The government’s 11th hour settlement avoided the risk that the Federal Court would issue an important Charter precedent in Snow’s case that opened the door to early release for scores of federal inmates who are vulnerable to COVID-19.

But Champ predicted the high-profile example set by the warden’s decision will be useful to others.

“Instead of a judicial precedent, we now have the first practical precedent of the CSC exercising its statutory authority over medical unescorted temporary absences, to allow a medically vulnerable prisoner to be released to self-isolate in the community during the COVID-19 pandemic,” he explained. “From the beginning, it had been a priority for Mr. Snow that other prisoners might be able to benefit from any progress we might be able to make in his case. For that reason, he directed us to share a copy of his UTA decision with anyone who may find it useful.”

Champ suggested that the warden’s decision acknowledges that, in normal circumstances, medical UTAs are used by CSC for the purposes of authorizing an absence to a medical treatment facility, but that the increased ability to self -isolate “as per the public state of emergency related to the coronavirus pandemic, in the context of a prisoner with serious medical vulnerabilities, is now a basis for authorizing such a UTA to a private residence.”

Champ, who worked on the case with Paul Quick and the Queen’s Prison Law Clinic, said he hopes the Bath Institution warden’s reasons will be widely circulated so that “a warden’s refusal to acknowledge that medical UTA’s are available for the purposes of protective isolation at home would now be difficult to justify in light of this example.”

He noted Queen’s Prison Law Clinic is now reaching out to federal prisoners, “many of whom are highly vulnerable to severe adverse outcomes from COVID-19, to push for their urgent release on similar terms. We are also sharing our materials to counsel who may have use for them.”

Champ also said he and his client were disappointed that the CSC and Bath Institution did not respond with appropriate speed to Snow’s request for the UTA. “Our concern is that it would be too late for Mr. Snow if we have to wait,” he remarked, noting that this concern was heightened by the death of the prison inmate in Mission Institution. 

Public Safety Minister Bill Blair

CSC disclosed April 16 that the day before the inmate died at Abbotsford Regional Hospital “as an apparent result of complications related to COVID-19.”

No other details were provided. The CSC notified the coroner, who will review the circumstances of the death.

Statistics posted by the CSC, as of April 16, indicate that Mission medium security, which is 20 kilometres north of Abbotsford, has had 55 positive tests for COVID-19, the highest for a federal prison. Bath Institution, outside Kingston, Ont., has not had any positive results in the 10 tests it has conducted.

Across Canada, as of April 16, there were 481 COVID-19 tests conducted on federal prisoners, of which 151 were positive, 278 were negative and the results of 52 tests are still pending.

The government has been urged repeatedly by lawyers and advocacy groups to release vulnerable non-violent offenders early in order to limit the risks from COVID-19. The government has said it is considering options, but has not announced any actions.  

“Our greatest responsibility is keeping Canadians safe — that includes those in our correctional institutions,” Public Safety Minister Bill Blair said in sending “our heartfelt condolences ... to the family of the deceased during this difficult time.”

“We know the unique vulnerabilities facing correctional institutions during this public health crisis,” he said in a prepared statement April 16. “The situation around COVID-19 is both challenging and rapidly evolving, and our response will continue to adapt as required to prevent further tragic loss of life. We continue to look at options to see what further measures can be taken to ensure that inmates, staff, and our communities are as safe and healthy as possible during this crisis.”

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Cristin Schmitz at Cristin.Schmitz@lexisnexis.ca or at 613-820-2794.