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Legal groups file Charter challenge against government to protect federal inmates

Tuesday, May 19, 2020 @ 11:41 AM | By Amanda Jerome

Last Updated: Wednesday, May 20, 2020 @ 11:16 AM

Legal organizations and a federal prisoner have banded together to file a legal challenge against the Government of Canada to “compel it to take proactive steps to ensure prisoners’ safety in the context of COVID-19.”

According to a press release, the Canadian Civil Liberties Association (CCLA), Canadian HIV/AIDS Legal Network, Canadian Prison Law Association (CPLA), HIV & AIDS Legal Clinic Ontario (HALCO), and current federal inmate, Sean Johnston, filed a constitutional and human rights challenge on May 12 that compels the government to release federal prisoners, “with precedence for those who are particularly vulnerable to COVID-19 due to age or underlying health conditions.”

The notice of application noted that Correctional Service Canada’s (CSC) “failure to take steps to release prisoners, and its failure to implement additional measures to more fully safeguard the health of those who remain, constitutes a breach of its statutory duties and a breach of the rights guaranteed to all prisoners under sections 7, 12 and 15 of the Charter.”

Abby Deshman, criminal justice program director at the CCLA

Abby Deshman, the criminal justice program director at the CCLA, told The Lawyer’s Daily that the health of incarcerated people at federal institutions is a “growing concern.”

“We’ve been closely monitoring the steps that provincial, territorial and the federal government have been taking in relation to the incarcerated population and we’ve seen several provincial governments in particular move quite quickly to significantly reduce their incarcerated populations. We just haven’t seen that action or resolve from the federal government and we’re concerned that people’s lives are at risk,” she explained.

Deshman noted that there are “several mechanisms” in the Corrections and Conditional Release Act that would “allow the federal government to triage the incarcerated population and determine who could be released consistent with public safety.”

“That includes, for example, unescorted temporary absences for medical purposes, parole by exception, [and] there’s the ability to designate other locations as correctional institutions. All of these are existing measures in our law that could be used to respond to this pandemic and what we think the CSC needs to do is proactively use these legal avenues to ensure that our institutions are as safe and healthy as they possibly can be,” she explained.

Deshman stressed that, right now, physical distancing is “impossible in the prisons and we know that is the only really effective measure to slow the spread of this pandemic and keep vulnerable persons in our society as safe as possible.”

“There is no vaccine; there is no effective treatment for this disease. We have two active outbreaks in our federal institutions right now. Without significant steps from our federal government, we’re going to see many more. Already two people have lost their lives and I think more deaths will follow,” she added.

A press release from the Canadian HIV/AIDS Legal Network noted that, as of May 6, 2020, “582 federal prisoners were tested for COVID-19 of whom approximately 300 tested positive, and two federal prisoners have already died as a result of these outbreaks." The release also noted that the “rate of infection within federal prisons is significantly higher than in the population at large.”

The release explained that Johnston, who is serving a life sentence at Warkworth Penitentiary and has numerous health conditions, has applied for parole, been assessed as posing a low risk if released and has a release plan including a private residence.

“In his words, ‘Physical distancing measures in prison have been grossly inadequate. Some of us remain double-bunked and cannot achieve physical distancing within our own cells, let alone throughout the institution. While I await my hearing, I am gravely concerned about the possibility of contracting COVID-19, particularly given my underlying health conditions,’ ” the release added.

Sandra Ka Hon Chu, director of research and advocacy at the Canadian HIV/AIDS Legal Network, said in a statement that the “prevalence of pre-existing vulnerabilities such as cardiovascular disease, respiratory diseases, diabetes and HIV and hepatitis C virus infection is higher amongst our prison population,” and by “ignoring basic public health recommendations, CSC is effectively sentencing some prisoners to death.”

“Authorities in various jurisdictions around the world and across Canada have taken action to release prisoners as an essential part of the response to COVID-19,” added Ryan Peck, HALCO’s executive director, in a statement.  

“In contrast, CSC has taken few if any steps to release federal prisoners from its institutions,” he added.

Tom Engel, president of the Canadian Prison Law Association, noted that “depopulation safeguards and promotes the health not only of those prisoners who are released but also, and crucially, the health of those who for whatever reason must remain in prison.”

“Depopulation helps to ensure that their access to essential health care for other conditions is not restricted or impaired as a result of COVID-19 outbreaks,” he added.

Deshman noted that where prisoners “cannot be released, CSC must ensure comprehensive COVID-19 testing and an adequate supply of personal protective equipment; provide prisoners with hand soap, hand sanitizer, and cleaning supplies; and enhance cleaning of common areas.”

She added that it’s worth reiterating that other jurisdictions have depopulated prisons in response to the pandemic.

“We’re not asking CSC to take bold new steps in the sense that there are many provinces, and jurisdictions around the world, that have viewed getting people out of prison as the primary public health response that they can do in the context of COVID-19,” she said.

Editor’s note: This story was updated to include more detailed numbers of inmates impacted by COVID-19.

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