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Jeffrey Hartman, Hartman Law

Class actions filed in B.C., Quebec over prison COVID-19 outbreaks

Tuesday, May 12, 2020 @ 9:14 AM | By Ian Burns


Canada’s correctional service is being hit with class action lawsuits in both Quebec and British Columbia, alleging prison officials at institutions in both provinces did not take adequate steps to protect inmates from the effects of COVID-19.

The B.C. case concerns the Mission Medium Institution, which has faced the worst outbreak of the virus of any federal correctional facility in the country with over 100 cases. And now inmate Todd Howley is alleging Correctional Service Canada (CSC) and the staff at Mission were negligent and breached their duty of care to the inmates by failing to protect them from the scourge of the virus.

Jeffrey Hartman, Hartman Law

Jeffrey Hartman of Hartman Law, who is counsel in the case, said Canada was “in total control” over the 250 people at Mission and had a statutory as well as a constitutional obligation to take steps to ensure they would be safe from COVID-19.

“It is rare that these things occur, but it is certainly not unprecedented,” he said, pointing to the SARS outbreak of 2003. “It is our position that it was a failure that reasonable steps were not taken. Inmates are a vulnerable population — they are people who are locked up and many have mental health problems, and in particular management didn’t take steps to protect them.”

It also argues the inmates had their rights violated under s. 7 and s. 12 of the Charter because of the lockdown conditions they were subjected to. They were in total lockdown for a week starting on April 2, and not allowed to exit their cells for any reason; since then, they have been allowed out of their cells for approximately 20 minutes per day. The suit contains two subclasses: one for inmates who have tested positive from COVID-19 (of which Howley is one), and a second for those inmates who were subject to harsh lockdown conditions. One inmate has died at Mission as a result of the virus.

Hartman said he hopes the class action highlights that the approach we take to incarceration in Canada is “antithetical to the ideals we have set out for ourselves in society.”

“Of course there are prisoners who have done harm to other people, that goes without saying,” he said. “But to continue to treat people this way, despite everything that we have learned about mental health and criminality over the past 200 years, fundamentally prison hasn’t changed all that much.”

A similar action has been brought in Quebec by an inmate at the women’s institution in Joliette, although there have been COVID-19 outbreaks at two other facilities in the province, with one death. The claim is on behalf of all federal inmates in Quebec, and is seeking $100 per day for all federal inmates in the province incarcerated since March 13, when Quebec declared a public health emergency, plus a $500 lump sum payment for those who have been affected by the virus. Like the B.C. action, it has subclasses for those who actually have tested positive for the virus and those who has been subject to lockdowns.

Counsel Marie-Claude Lacroix of Simao Lacroix said “everybody is affected” by the crisis in correctional institutions right now, noting inmates at the federal institution in Port-Cartier, Que., were in segregation for six to eight weeks and locked in their cells for 24 hours a day, only allowed to leave their cells for 15 minutes every two days.

“If CSC had established a strict protocol everywhere, we would not have been in this situation,” she said. “They didn’t realize that it could be a problem — in the beginning, they said inmates were not getting out so they are not at risk of contracting COVID-19, and they were mostly protecting their staff. But they didn’t realize that actually it would be their staff actually bringing the COVID-19 inside and it would contaminate everybody.”

Lacroix noted “every institution is different” because they were largely allowed to make their own rules concerning COVID-19, and that is problematic right now. And Hartman added it was “incumbent” on the warden and staff at Mission to take reasonable steps to protect the inmates.

“Canada does have laws for emergency preparation and in the face of an emergency there are duties on the warden and the warden’s staff, and it is pretty clear that there was a failure because if you look across Canada there are the institutions in Quebec who have had COVID-19 outbreaks and then there is pretty much nothing until you get to Mission,” he said. “Something happened at Mission which didn’t happen at other institutions, and we need to examine what that is.”

CSC declined to comment specifically on either class action, noting they were active litigation currently before the courts. But spokesperson Martine Rondeau said in an e-mail that CSC was “working diligently, and often around the clock” to prevent the spread of COVID-19. According to CSC statistics, of the approximately 13,900 federal inmates in Canada, 333 have tested positive for the virus at five institutions as of May 8; only eight of those cases were from outside Quebec or B.C.

“The situation around COVID-19 is both challenging and rapidly evolving and we continue to adapt our response and do everything in our power to keep our employees and inmates safe,” she said. “That is why public health has tested all inmates at Mission. To make sure we are doing everything we can, we had experts come to Mission to review our infection prevention and control measures. As a result of their recommendations, we have implemented additional hand-washing stations, increased hygiene supplies throughout the institution and continue to disinfect high-contact surfaces multiple times a day.”

Neither allegation has been tested in court.

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