Protecting prisoners across Canada

The issue

COVID-19 is shedding light on fundamental inequalities in Canadian society. Those with safe spaces to shelter can hunker down at home to self-isolate and physically distance themselves. Others – including the thousands of individuals confined in Canada’s prisons and jails – have no choice but to continue to live, eat and sleep within an arm’s reach of dozens of other people. People who are charged for crimes, those who cannot meet their bail release requirements, individuals who are waiting for their trial or a parole hearing to determine whether they can be supervised in the community – are all are at a heightened risk of contracting COVID-19. 

The incarcerated population is particularly vulnerable during this pandemic due to the large number of people with underlying health conditions. Already two federal prisons are in the midst of large outbreaks. Over 300 prisoners have tested positive. Two individuals have died. Without immediate action to increase infection control and decrease the incarcerated population, more outbreaks are inevitable. This endangers not only the lives of those behind bars, but also the health and lives of those who work there, their families, and the broader community. 

Sean Johnston is currently in custody at Warkworth Penitentiary. He has heart problems, asthma, sleep apnea, and experiences blood clots. He uses a nebulizer for his asthma, and a CPAP machine for sleep apnea. Sean has been told by health care staff at Warkworth that he should not use these devices because they may cause droplets to linger in the air for longer periods or be dispersed over greater distances and therefore, may increase the spread of COVID-19. 

Sean does not want to put other prisoners at risk of infection but needs these devices to effectively manage his conditions. Sean has applied for parole, has been assessed as posing a low risk if released, and has a release plan including a private residence. His parole hearing is currently scheduled for the end of May. While he awaits his hearing, he remains gravely concerned about the possibility of contracting COVID-19, particularly given his underlying health conditions. 

Prisons are densely populated making social distancing protocol impossible and living conditions hazardous. Proactive steps are immediately needed to reduce the population of prisoners in institutions to the greatest extent possible consistent with public safety, especially for those who are particularly vulnerable to COVID-19 due to age or underlying health conditions – people like Sean. 

Comprehensive COVID-19 testing, adequate personal protective equipment, effective personal hygiene supplies and access to healthcare for prisoners and staff are necessary in order to control the rapid spread within these communities.

Our recent work

2020 Constitutional challenge

CCLA has also written to every province and territory regarding immediate measures that need to be put in place to protect vulnerable individuals and the broader community. And we, along with our coalition partners, have filed a constitutional challenge to the government’s handling of the COVID-19 pandemic in federal correctional institutions. 

Public health advice is clear: without a treatment or a vaccine, the most effective thing we can do to mitigate the spread of the pandemic and protect the most vulnerable in our society is physical distancing.

The Correctional Service of Canada has failed to take the steps that would make physical distancing possible within its institutions. Jurisdictions across Canada and the world have taken significant proactive steps to shift low-risk inmates to community supervision in order to save lives. CSC has not. It has also failed to implement adequate infection control measures such as comprehensive testing, hand-washing, and professional cleaning of common areas. 

The continued incarceration of medically-vulnerable inmates who could be safely and conditionally released to effectively self-isolate in the community is a violation of CSC’s statutory and Canadian Charter obligations.

The public interest applicants in the legal claim are CCLA, Canadian Prison Law Association, HIV & AIDS Legal Clinic Ontario, HIV Legal Network and HIV & AIDS Legal Clinic Ontario. Sean Johnston, who is currently incarcerated at Warkworth Institution, is an individual applicant.

UPDATES

May 12, 2020 – CCLA and coalition partners have filed a constitutional challenge to the government’s handling of the COVID-19 pandemic in federal correctional institutions 

April 22, 2020 – CCLA wrote to Correctional Service of Canada Commissioner Anne Kelly outlining the organization’s concerns and urging CSC to take immediate action. CSC did not respond