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COVID-19 and the difficulties for Ontario inmates | Sarina Nezhadian

Thursday, July 02, 2020 @ 1:52 PM | By Sarina Nezhadian

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Sarina Nezhadian %>
Sarina Nezhadian
As we enter the fourth month of the COVID-19 pandemic, restrictions are slowly being lifted, allowing individuals who once felt imprisoned inside their own homes to enjoy amenities from a safe distance. People began to compare the feelings of confinement to being detained.

However, what are the living conditions for inmates in detention centres amidst a global pandemic? How safe can one be in a crowded provincial jail, if faced with an outbreak?

Maria Rosa Muia, criminal lawyer, Domenic Basile Barrister and Solicitors, witnessed the conditions inside Ontario detention centres. “Inmates are being kept inside of their cells for longer, with a lot of their privileges taken away from them, such as yard time and limited access to medical care outside of the facility,” Muia said. Many inmates are now at a greater risk for health complications due to their advanced age or pre-existing conditions.

At the start of the pandemic, Ontario faced shortages of personal protective equipment. This greatly impacted detention centres and jails, as there have been restrictions on hygiene products, including hand sanitizers and masks. This not only placed the inmates at risk, but also facility employees including nurses and correctional officers.

Since March, the South West Detention Centre, Toronto South Detention Centre, Elgin-Middlesex Detention Centre and Ontario Correctional Institute have faced positive cases of COVID-19 from either staff or inmate populations. Detention centres and jails have become a hotspot for community transmissions, as inmates are often paired or in large groups with one another and staff have frequent close contact with the prisoners. Detainees from particular facilities often come from different locations, which increases the potential of introducing COVID-19 from different geographic locations. For example, before being moved into a detention centre, an individual is taken from the police station, to a holding cell, to the jail — exposing them to numerous facilities.

Although each institution has its own individualized pandemic plan, there is one operational change common to them all — the restriction of personal visitors, including lawyer-client visitations and inmate in-person court appearances.

“As their lawyers, we cannot conduct face-to-face visits which becomes difficult when discussing the details of the case, or reviewing disclosure,” Muia noted. By not having this option, it becomes difficult to advise and prepare clients for court appearances, or to build trusting relationships through the phone.

According to Bobby Russon, criminal lawyer, Windsor Criminal Law, these barriers also impact new clientele and those suffering from mental health problems. “A lot of people come into custody and do not make bail right away,” Russon explained. “These people might be suffering from mental health problems to begin with, and in that very moment could experience a mental health crisis.”

Russon provides legal advice but also must take on the role of a social worker, noting the importance of being present for your clients during stressful legal proceedings that may be new and unfamiliar to some. “To not be able to physically be there and calm down my client has a negative impact on how we can normally proceed. While my client is in the holding cells, I cannot go there to speak or reassure them of the situation. It is a lot harder to inform and advise my clients without the face-to-face interviews.”

This faceless barrier has made its way into other legal proceedings. When conducting guilty pleas for minor matters, additional obstacles are faced such as not being in the same building as your client. Time-sensitive matters are affected when you do not have the opportunity to speak to your client right away. “If something occurs right before the plea and you need to get a hold of your client promptly, or if your client is afraid of the court process but only feels comfortable speaking to their lawyer, it creates additional obstacles,” Russon explained.

Audio-based proceedings have also affected bail hearings. Russon says the justice of the peace, defence counsel, Crown counsel and the jail call into a conference to begin the hearing. Audio-only hearings can create problems, Russon notes. “I’ve had a situation when a representative was testifying and the line kept getting disconnected. In the detention order there were several misstatements, which led us to review the decision and file an appeal.” These situations lengthen criminal proceedings and could impact the efficiency of the system.

In addition, audio-only bail hearings may impact the outcome of proceedings. While it is true that physical appearances matter in the courtroom, by not having the defendant appear before the court it becomes easier to reduce the individual to what they are on paper. “A modest conversation about who the defendant is, is something that presiding justices must guard against,” Russon advises. A defence lawyer's job is to be cautious of how the court may perceive the defendant’s physical appearance. It becomes difficult to present a client as a human being, rather than an individual with a list of charges, when the hearing is conducted over the telephone.

When looking at the future months, Russon agrees that the pandemic may be considered as a collateral consequence in sentencing hearings. Collateral consequences were defined in R. v. Pham 2013 SCC 15 as “any consequence for the impact of the sentence, on the particular offender.” Presiding justices are able to take collateral consequences into account when conducting sentencing procedures.

Russon referenced his recent case, R. v. Tasevski 2020 ONSC 3724, where his client received a one-year reduction of his sentence for collateral consequence. It was agreed by both counsel that because the accused would be serving his term in prison while the COVID-19 pandemic continues, this factor can be taken into account as a collateral consequence. It is important to note that collateral consequences do not diminish the offender’s moral blameworthiness, or render the offence less serious, but rather the collateral consequence of one’s incarceration during a pandemic would make his sentence harsher and more restrictive than it would have been prior to the pandemic. Russon agrees that in the following months, courts may look at the pandemic as a collateral consequence, until we are safely in the clear.

The COVID-19 pandemic has made many of us feel like a prisoner in our own homes. However, we must maintain our humanity when thinking of the conditions inmates are facing and how these unprecedented times may affect their futures longer than merely a wait for a vaccine. It is up to us as future lawyers, current lawyers and presiding justices to improve the appalling conditions inmates face in comparison to the rest of society.

Sarina Nezhadian is a rising second-year law student at the Dual JD program at the University of Windsor’s Faculty of Law and the University of Detroit Mercy School of Law. She has a great passion for criminal law and civil litigation. She is active on LinkedIn.

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