The socio-economic inequalities in any given society will always be highlighted during a national crisis and the COVID-19 pandemic is no exception. Long before COVID-19 hit Canada, we could predict with a fair degree of certainty which groups would be most at risk.

From a health perspective, the science tells us that the elderly and those with compromised immune systems will be especially vulnerable to the more serious aspects of the disease. However, there are other people who are often hidden from view, and who are especially vulnerable, including children in youth corrections; and adults in prison. We know that Indigenous peoples are over-represented in all those categories.

Healthcare professionals working in prisons throughout the country have advised correctional authorities to release prisoners. Measures taken by prison authorities so far have included issuing directives relating to social distancing or hygiene that too often cannot be followed in shared, overcrowded living spaces, or imposing extensive lockdowns that put human rights at risk but have not kept people safe or healthy. There are outbreaks and the virus is spreading fast. There has already been one death in Mission, a federal penitentiary for men in BC. Without immediate and decisive preventative measures, the death toll will soon mount.

The Correctional Service of Canada (CSC) issued a statement on April 16 explaining that in addition to the death at Mission Institution, 54 other prisoners and eight correctional officers have tested positive for the virus. And that is just at Mission.

The Joliette Institution for women in Quebec now reports more than 60 per cent of its prisoners are infected with COVID-19. As of April 18, CSC reports 151 prisoners who have tested positive in federal prisoners and we know those numbers will continue to grow.

Yet, despite the serious risks to prisoners, guards and other prison staff, and to surrounding communities, the federal government has failed to heed the calls of medical, legal and human rights experts to decarcerate low-risk prisoners. On March 31, Public Safety Minister Bill Blair asked CSC and the Parole Board of Canada to consider release options. Several weeks later, there has been no reassurance that the extraordinary early release measures that COVID-19 requires have been put in place.

On April 20, Minister Blair referred to hundreds of prisoners who have become eligible for release, but it remains unclear how many of these eligible individuals have been released; as well as how many were released from prisons versus halfway houses, since the figures referenced include those who are paroled, those who are released on statutory release as well as those whose sentences expire.

What is clear is that the number of releases has not increased beyond ordinary rates of about 600 prisoners released each month last year and the Minister’s office has acknowledged that the slight downward trend in the prison population during this pandemic is at least in part a function of the reduced numbers of prisoners being admitted to federal penitentiaries.

The World Health Organization has advised governments to take immediate steps to prevent the spread of the virus in prisons by releasing vulnerable prisoners. The United Nations High Commissioner for Human Rights Michelle Bachelet also called on governments to act quickly to decarcerate the elderly, those who are sick and low-risk prisoners — especially women and youth.

Here at home, the Canadian Human Rights Commission has also called on the CSC to release low-risk and vulnerable prisoners including elderly, those with serious illnesses, pregnant women and women with children.

The federal government has a legal obligation to protect prisoners in its care from the virus, so why not build on the release efforts that have been started by nearly every province and territory?

Ontario, for example, has now safely released about a quarter of those in its provincial prisons. Both international and domestic medical experts and human rights experts agree that prisons should be decarcerating now to prevent a massive loss of life later.

We need only look to the situation of long-term care institutions to see the dangers in failing to act pre-emptively. Ontario Premier Doug Ford explained that the virus has spread through long-term care institutions like “wildfire,” with more than 98 outbreaks to date. Federal prisons like Mission, Grand Valley, Joliette and Port Cartier are just the beginning if the CSC doesn’t act quickly.

Right now, lawyers are being forced to advocate for prisoners on an individual basis – a time-consuming process that is not effective during a pandemic. We need a clear and decisive plan which sets out specific criteria for release so that prisoners can be released with proper supports within days, not weeks or months.

Individual lawyers cannot – and independent of applications, courts will not – undertake creative and expansive use of extraordinary remedies. As each day passes, it becomes increasingly evident that just like some provincial authorities have demonstrated, it is time for the government to lead the way and take decisive action.

We call upon Blair to immediately release vulnerable prisoners; anyone over 50 years old; immunocompromised, pregnant, sick, or who has a pre-existing condition that renders them high risk of dying from COVID-19; those with mental health issues – including dementia; those already granted conditional release by the Parole Board of Canada; prisoners classified as minimum security; Indigenous prisoners pursuant to ss. 81 or 84 agreements for transfer or release into the care and custody of Indigenous communities.

The prisoners could be released to families and communities or to non-governmental organizations with fully funded housing, health and educational services.

Releasing ill, elderly or minimum-security individuals to self-isolate and then shelter in place in the care of family or community groups represents little, if any risk to public safety. Leaving them in prison and allowing the virus to incubate and spread will place significant strain on the healthcare system of smaller centres where prisons are located and put whole communities at risk.

For the up to 75 per cent of prisoners who will remain imprisoned, Blair needs to ensure public health officials conduct independent reviews to certify whether CSC adheres to physical distancing and hygiene directives. He also must ensure that current lockdowns cease.

As well, public health official should be immediately conducting independent inspections of all prisons to determine the adequacy of health care, testing, treatment and prevention protocols.

Medical professionals are urging us to ensure that health and public safety issues are appropriately and adequately addressed. To do this, an all-government decarceration plan is urgently needed if we are to prevent a massive loss of life in Canada’s prisons.

This article is part of the The Coronavirus Pandemic: Canada’s Response special feature.

Photo: An overhead view of the women’s prison in Joliette, Que., on June 1, 2005. THE CANADIAN PRESS/Ryan Remiorz

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Pamela Palmater
Dr. Pamela Palmater is a Mi’kmaw lawyer from Eel River Bar First Nation. She is an author, activist and currently serves as Professor and Chair in Indigenous Governance at Ryerson University in Toronto.
Kim Pate
Kim Pate is a senator. She is an adjunct law professor who has also spent the past four decades working with and on behalf of marginalized, victimized, criminalized and institutionalized youth, men and women.

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