Drastic Action Needed; Protect Incarcerated, Correctional Workers & Broader Communities

Thursday, March 26, 2020

I am writing to urge you to take further immediate actions to mitigate the spread of COVID-19 through New Brunswick’s jails and detention centres. Individuals in provincial jails are at particular risk during this pandemic because of their underlying health conditions and the conditions of confinement within institutions. A public health approach requires that the releasable be released and detention be a measure of last resort. New Brunswick needs to take immediate measures to drastically reduce the currently incarcerated population and divert newly arrested individuals from entering these institutions.

Other jurisdictions are already taking action. On Sunday New Jersey’s chief justice signed an order authorizing the release of as many as 1000 sentenced offenders from its jails, including low-level offenders, those jailed for probation violations and those convicted in municipal courts.1 In California judges and sheriffs are proactively ordering the release of hundreds of inmates, including by releasing those most at risk to health complications, speeding up the release those with less than 30 days of jail time remaining, choosing to issue citations instead of arrests, and reducing bail requirements for nonviolent pretrial inmates.2 In the Bay area those released with no place to go are being offered rooms in local hotels.3 Most Canadian governments have suspended all intermittent sentences, among other measures.

Despite the steps being taken by various Canadian governments to date, on the whole our criminal justice system is still operating at cross-purposes with public health goals. The incarcerated population is particularly vulnerable due to the crowded conditions and the large number of people with underlying health conditions. Providing adequate health care and controlling infection in provincial institutions is very difficult at the best of times. Our correctional institutions are simply not equipped to handle the magnitude of this public health crisis without immediate and significant actions. Most individuals in New Brunswick’s jails are waiting for release on bail or serving short sentences for non-violent offences. Failing to act now risks turning a short stay behind bars into a death sentence.

Isolation measures in jails and correctional centres is part of the answer. Simply locking the cell doors, however, will not bring this infection under control. Most people cycle in and out of detention centres within a matter of days or weeks. Being locked up means overcrowded conditions, little to no healthcare, and the near impossibility of socially distancing. This health crisis appears set to last for months, at a minimum. Lockdowns under these conditions are both inhumane and ineffective. This is exactly when our Constitution requires governments to step up to treat everyone humanely.

The Ontario Superior Court made a similar point this week on a bail review: R. v. J.S., 2020 ONSC 1710. Our criminal justice and correctional systems must come to terms with the magnitude of this crisis.

At a minimum, the following specific actions must be taken immediately:

Generally:

• Provincial governments should publish emergency updates to crown policy manuals, probation and parole policy, and guidance documents for police services to ensure that public health exigencies are imported into the “public interest” component of all decision-making processes in the criminal justice system, including police arrest, charging and detention decisions; parole and probation officer monitoring and breaching decisions; and the quasi-judicial discretion exercised by Crowns.
• Justice system actors should facilitate timely, fair hearings using available technology, including telephones, for the purpose of granting releases with minimal and flexible conditions, parole, probation, and other forms of release into the community. Unnecessarily strict application of evidence and procedural bars must be eliminated to facilitating release.

For those facing possible arrest or charges:

• Police should be encouraged to exercise their discretionary authority to release those charged at the scene, buttressing the principle of restraint entrenched in Part XVI of Criminal Code. Specifically, arrest and detention should be reserved for those presenting a serious, evidence-driven risk of flight for serious violent charges. Those who are arrested should be released on police-imposed conditions rather than held for a bail hearing.

For those in pretrial detention:

• Prosecutors should review all cases of pre-trial inmates to determine whether, taking into account the public health crisis, it is in the public interest to proceed with the charges.4 Serious consideration should be given to withdrawing all non-violent charges.
• The attorney general should pursue a blanket judicial order allowing all pre-trial detainees facing non-violent charges to be released forthwith.
• At a minimum, prosecutors should review all cases of pre-trial detainees waiting for a bail decision and consent to judicial interim releases on the same grounds of extra restraint, consistent with R. v. J.S., 2020 ONSC 1710.
• Prosecutors should also be proactively reviewing all cases of individuals detained after a bail hearing to determine whether, given the public health issues, a consent release is now possible.

For those on probation and parole:

• The terms and conditions of all individuals on probation and parole should be reviewed to eliminate in-person check ins and replace them with telephone or internet monitoring where necessary.
• Probation and parole policy manuals should be updated to take into account the public health crisis and direct PPOs to use their discretion when deciding whether to reincarcerate individuals who breach conditions;

For immigration detainees:

• Any immigration detainees being held in Provincial facilities must be immediately released through the temporary or permanent suspension of immigration holding agreements with the Federal government.

For sentenced inmates:

• Consider any and all legal mechanisms to facilitate the mass early release of those facing short sentences for non-violent offences, including replicating Ontario’s recent actions and the recent New Jersey consent order.5 At a minimum, all existing legal tools must be proactively accessed to immediately reduce the prison population including temporary absences, parole, and other discretionary measures.
• Correctional officials must ensure that conditions of confinement adhere to humane standards, including providing for virtual visits, and adequate programming to the extent possible. In particular, isolation and lockdowns cannot replace releases where the latter is possible to ensure the health of inmates, correctional staff, or their families.
• Correctional institutions must maintain accurate, disaggregated data about lockdowns, isolation, and other measures, to ensure transparency and accountability.

Every release from confinement will alleviate over-crowding, avoid the spread of infection when the virus reaches penal institutions, and protect inmates, correctional officers, and the innocent families and communities to which detainees and inmates will return.

New Brunswick must effectively advance public health goals throughout the criminal justice system, in a variety of ways, with particular focus on those easily becoming an afterthought during a pandemic.

Thank you for considering the foregoing.

Sincerely,

Michael Bryant
Executive Director & General Counsel
Canadian Civil Liberties Association

Footnotes:

1 https://www.nytimes.com/2020/03/23/nyregion/coronavirus-nj-inmates-release.html
https://www.aclu-nj.org/files/5415/8496/4744/2020.03.22_-_Consent_Order_Filed_Stamped_Copy-1.pdf.

2 https://www.latimes.com/california/story/2020-03-20/california-releases-more-jail-inmates-amid-coronavirus-crisis

3  https://www.themarshallproject.org/2020/03/21/coronavirus-transforming-jails-across-the-country

4 The “public interest” can be invoked to justify the liberation of a defendant, but not to justify the laying of a charge or continuation of a prosecution, absent a reasonable prospect of conviction.

5 See https://www.aclu-nj.org/files/5415/8496/4744/2020.03.22_-_Consent_Order_Filed_Stamped_Copy-1.pdf.