Inmates have died because of COVID-19, despite many early warnings to take action. Canada must learn from its failures and enact sweeping re-forms.

In July 2020, the NGO International Penal Reform reported that most countries have failed to protect detained individuals against COVID-19. Their failure to adequately respond to the early calls of international human rights and health organizations to take swift action led to the infection of at least 102,537 people deprived of their liberty in 88 countries, and at least 1,569 prisoners dying in 36 countries. This is illustrative of the level of marginalization incarcerated people face worldwide and the equity gaps prevalent in most societies.

Canada is one of the countries that has not only failed to take robust action and ensure the protection of those in custody, but also implemented measures that further harmed prisoners. If the federal and provincial governments are committed to closing equity gaps and to advancing public health objectives, it must learn from its failures and do better as we head towards new waves of the pandemic.

Second, the implementation of preventative measures has proven difficult in jurisdictions that did not engage in sufficient depopulation. Social distancing has generally not been possible. In federal prisons, communal eating, food serving and group activities have not been suspended in all institutions. Incarcerated people were not given masks and not all officers have worn personal protective equipment when engaging with prisoners.

The Office of the Correctional Investigator reported that while CSC has worked towards hiring more healthcare personnel, there was still such a shortage that, for example, one institution dealing with an outbreak had only two nurses available (one more than pre-pandemic) and one part-time physician for nearly 200 people. While there is limited information emerging from provincial institutions, reports indicate that at least some provincial prison systems failed to follow public health guidelines in their institutions.

Third, isolation was a common response to the pandemic, despite international organizations’ warning that segregation and lockdowns are not sufficient to prevent spread and may have devastating mental health consequences on prisoners. Provinces like Quebec and Ontario have engaged in holding people in their cells for 24 hours daily.

The government has already failed many times in addressing the issue of segregation outside of the international spotlight when a pandemic was not looming.

In the federal institutions where there were active outbreaks, even individuals who were not presumed infected were held for up to 24 hours in their cells. When permitted to go outside their cell for 20 minutes each day, they had to choose whether they would call their family, their lawyer or take a shower. In institutions with no presumptive COVID-19 cases, individuals were allowed outside between two to four hours daily. Thus, at times, this regime has been in breach of international norms and human rights, according to which prolonged isolation (more than 14 days of being locked up for 22 hours or longer in a cell) and indefinite isolation (without a clear end) constitute torture. This should come as no surprise. The government has already failed many times in addressing the issue of segregation outside of the international spotlight when a pandemic was not looming. Most recently, the 2019 changes the federal government has made to its solitary confinement regime is seen by many as “window dressing.”

These failures led to serious consequences. In Canada, there were outbreaks in five federal prisons. In May 2020, the rate of infection in federal prisons was over 13 times higher than in the community. Two deaths were reported. Federally incarcerated women have been the most affected by the infection. The rate of infection in women’s penitentiaries was 77 times higher than among women in the community. Provincially, there have been outbreaks in Ontario and Quebec prisons, with a significant number of people being infected and one death reported.

From a public health perspective, this failure has devastating downstream consequences. First, allowing hot spots of infection to grow impedes the successful flattening of the curve and prolongs the life of the pandemic in the community. Second, incarcerated people are more likely to have severe complications from COVID-19 due to a higher than average prevalence of pre-existing conditions, which in turn will be taxing on the healthcare systems. Third, the measures taken, in particular lockdowns and lack of communication with families, negatively affects the mental health of incarcerated individuals, increasing the chances of substance overdose and the frequency of self-harm incidents. This could bring about increased unrest in prisons, stretch healthcare resources, and will generally have harmful effects on prisoner health. Finally, COVID-19 may have severe and long-lasting consequences on health, especially for those at higher risk. Therefore, there are heightened concerns regarding the higher rates of infection in people who will ultimately return to marginalized communities in a more fragile state of health than when they entered prison.

The measures taken, in particular lockdowns and lack of communication with families, negatively affects the mental health of incarcerated individuals, increasing the chances of substance overdose and the frequency of self-harm incidents.

For those conducting prison work, the impact of COVID-19 on prison populations and the refusal of some governments to take meaningful measures to protect them come as no surprise. These are the by-products of the pre-COVID-19 shortcomings of the correctional systems and of the broader criminal and social justice practices that have perpetuated equity gaps in the society, including overreliance on incarceration, inadequate healthcare, and the general disregard for prisoner well being and prisoner rights.

Social and health inequities have long been feeding the prison systems. In turn, prisons are now cracking under the pressure of the pandemic, and the spill-outs impact all of society. The current crisis has shown how connected prison and social justice issues are to public health. Returning to normal should not be an option; instead, sweeping reforms that ensure Canada’s (and other countries’) ability to equitably protect everyone in the case of a public health crisis are needed.

Some of the much-needed long-term reforms that are intrinsically connected to imprisonment and well-being of criminalized people include universal basic income, better healthcare, better child support and other community supports for marginalized people, as well as sentencing reforms (such as the abolition of mandatory minimum sentences) that will effectively reduce the overreliance on incarceration and increase diversion and community sentences.

In the short term, during a second pandemic wave, the governments should use the tools available to them to identify and release incarcerated individuals who are low-risk and have significant health needs and provide them with community support.

There are numerous options available for releasing different eligible individuals, including parole, parole by exception, statutory release, releases for Indigenous individuals, temporary absence passes and the royal prerogative of mercy. None of these mechanisms has been used, for instance, to release federally incarcerated people during the first wave of COVID-19.

Finally, all correctional systems should review their pandemic protocols and compare them against the recommendations of international health and human rights agencies, as well as community public health measures. The implementation of these protocols must be supervised by public health agencies.

A longer version of this piece can be found in Vulnerable: The Law, Policy and Ethics of COVID-19, edited by Colleen M Flood, Vanessa MacDonnell, Jane Philpott, Sophie Thériault and Sridhar Venkatapuram, out now and available open access from University of Ottawa Press.

This article is part of the Addressing Vulnerabilities for a More Equitable Pandemic Response special feature.

Photo: The Matsqui Institution, as seen on April 11, 2015, is a federal medium-security prison facility in Abbotsford, British Columbia. Shutterstock/By Eric Buermeyer