Human rights groups are challenging the federal government in court over its handling of the COVID-19 pandemic in Canada’s prisons, claiming it has failed to protect vulnerable inmates, violating their constitutional rights.
An application was filed at federal court on Tuesday by the Canadian Civil Liberties Association (CCLA), Canadian Prison Law Association, HIV and Aids Legal Clinic Ontario and HIV Legal Network, as well as Sean Johnston, an inmate at Warkworth penitentiary near Peterborough, Ont. — the same day Correctional Service Canada (CSC) reported that 333 inmates have tested positive for COVID-19 in institutions across the country. Two other inmates have died of COVID-19.
“This application is really about making sure CSC is doing everything in its power to keep people safe in institutions and release people so they can socially distance,” CCLA lawyer Abby Deshman told HuffPost Canada.
Public Safety Minister Bill Blair’s office declined to comment. CSC said it has received and is currently reviewing the application. The allegations have not been proven in court.
“CSC is working diligently to protect the safety of staff, inmates and the public,” said spokesperson Esther Mailhot in an email. “Since the start of the COVID-19 pandemic, management teams at all levels are engaging with local, provincial and federal public health authorities to navigate these unprecedented times.”
Women in federal prisons are 43 times more likely to contract COVID-19 than women in the general population, according to data compiled by Ryerson University criminology Prof. Jane Sprott. Male prisoners are 12 times more likely to contract COVID-19.
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The applicants are requesting the court quickly intervene by ordering CSC to systematically reduce prison populations, while protecting public safety, and ensure prisoners are not segregated for indefinite periods of time or more than 15 days because of COVID-19. The applicants also want prisoners to have access to personal protective equipment, hand soap and hand sanitizer, among other measures.
The ministry is required to protect inmates from health threats, like the highly contagious coronavirus. The most effective way to do this is by reducing prison populations so that the inmates that remain can practise social distancing, say experts across Canada.
Last month, more than 100 health professionals signed an open letter to the Canadian government advising it to release as many people as possible to prevent outbreaks.
CSC’s handling of the COVID-19 crisis has been criticized by academics, lawyers and Canada’s prison ombudsman Ivan Zinger, who said in a report that current prison conditions “obviously violate universal human rights standards.”
In the two months since the World Health Organization declared the pandemic, CSC has not publicly confirmed any systemic releases in direct response to COVID-19. Derrick Snow is the only known inmate who was granted a temporary absence from prison because of underlying health conditions, including a cancer diagnosis, that meant he faced a high risk of dying if he contracted COVID-19.
Johnston, the inmate who filed the lawsuit, has a slew of underlying medical conditions including asthma, diabetes and sleep apnea. The 47-year-old has served 28 years for murder at Warkworth, where so far no inmates have tested positive for COVID-19.
He is eligible for parole, has been deemed unlikely to reoffend, and has a place to live and self-isolate if released, said the application. His hearing is at the end of May, although he has attempted to appear before the parole board before then.
Johnston was unavailable for an interview as he has limited access to a phone, but said in a statement that “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 potential consequences of contracting COVID-19 also constitute cruel and unusual treatment or punishment.CCLA application
Some prisons have resorted to lockdowns that constitute “cruel, inhumane or degrading treatment of a prisoner,” violating CSC’s mandate, according to the application. Other institutions have continued to allow inmates to use phones, or line up for food, but because there are so many people, it’s impossible to maintain a safe physical distance.
“Avoidable exposure to and the potential consequences of contracting COVID-19 also constitute cruel and unusual treatment or punishment, contrary to Section 12 of the [Canadian Charter of Rights and Freedoms],” said the application.
The ministry’s lack of a co-ordinated, widespread response and institutions’ reliance on lockdowns have disproportionately impacted prisoners who are pregnant, elderly and have physical and mental health disabilities, which violates Section 15 of the charter that every person is equal before the law without discrimination, said the application.
Inmates are also facing cancelled programs, visits and recreational and spiritual activities.
“The sentences currently being served by federally sentenced prisoners are accordingly significantly harsher than were intended by the courts and grossly disproportionate to the offences to which they were imposed,” the application said.