7 April 2020, 9:05 a.m.
(Disponible en français : La COVID-19 et le système correctionnel fédéral)
In recent weeks, Correctional Service Canada (CSC) reported cases of COVID-19 in some of Canada’s federal penitentiaries. Both federally sentenced persons and guards have been infected. The rapid spread of this infectious disease is a looming threat to the health and safety of incarcerated persons and correctional personnel across Canada. Because correctional facilities and their populations are part of the larger community, a disease outbreak within penitentiaries is also a health risk to society.
Approximately 14,000 federally sentenced persons are in federal correctional facilities. They generally live in close quarters, with little separation between cells. Practising physical distancing is either not feasible or could require imposing measures (e.g. prolonged solitary confinement and lockdowns) that have been shown to cause significant physiological and psychological harm.
The potential for the spread of infectious diseases in federal correctional facilities has been likened to that of cruise ships, which have experienced rapid and extensive transmission rates in an enclosed space. One factor that is overlooked in this comparison, however, is that federally sentenced persons comprise some of the most marginalized and vulnerable members of society. Many are at risk of developing severe illness. A number of federally sentenced persons have struggled with high-risk behaviours associated with chronic health conditions such as Hepatitis C Virus and Human Immunodeficiency Virus.
The federally sentenced population is also an aging one, with those over the age of 50 experiencing higher rates of chronic illness. In addition, Indigenous Peoples are overrepresented in federal corrections (30% of federally sentenced persons compared to 5% of Canada’s overall population), and have higher rates of infectious disease and chronic illness.
Correctional Service of Canada and the Provision of Health Care
CSC has an obligation to provide federally sentenced persons with “essential health care” and “reasonable access to non-essential health care” under section 86 of the Corrections and Conditional Release Act (CCRA). Section 4(g) of the CCRA also requires CSC to ensure that its correctional policies, programs and practices, including those relating to health care,
respect gender, ethnic, cultural, religious and linguistic differences, sexual orientation and gender identity and expression, and are responsive to the special needs of women, Indigenous persons, visible minorities, persons requiring mental health care and other groups.
Canada also endorsed the United Nations Nelson Mandela Rules (Mandela Rules), which state that “[p]risoners should enjoy the same standards of health care that are available in the community, and should have access to necessary health-care services free of charge without discrimination on the grounds of their legal status.” Though not legally binding, the Mandela Rules are generally accepted as identifying good practices in the treatment of those in custody.
In the past, CSC’s ability to deliver these minimum standards of health has been questioned by some. For example, the Correctional Investigator (CI), the ombudsman for federal corrections, has stated that “the federal correctional system faces serious capacity, accessibility, quality of care and health service delivery challenges and constraints.” Some of the challenges the CI’s reports have identified include:
- Aging and inappropriate infrastructure
- Sharing of information between health care and front-line staff
- Meeting the needs of aging inmates
- Operational dilemmas – prison vs. hospital, inmate vs. patient, security vs. treatment
- Infectious diseases, drugs in prison and harm reduction
Correctional Service of Canada: Response to COVID-19
In the context of COVID-19, CSC has stated that it “has dedicated health care services in its institutions that have the knowledge and experience to handle cases of infectious diseases and respiratory illnesses, such as COVID-19.” It also reported on measures it has taken to minimize the risk of infection within federal penitentiaries. These have included suspending visits from family members and volunteers as well as halting all temporary absences unless medically necessary.
In an effort to mitigate the effects of these measures on federally sentenced persons, the Commissioner of CSC has indicated that food, accommodation, and telephone use would not be deducted from their earned salaries for at least three months.
With COVID-19 spreading across the country and entering federal penitentiaries, the Minister of Public Safety has also asked CSC and the Parole Board of Canada “to consider early release for some federal inmates.” This is a strategy that has already been adopted by a number of countries, including some states in the United States of America.
Critics in Canada, including the CI, have been advocating for the release of certain federally sentenced persons, especially for those who are non-violent, are not a threat to the community and are considered a low risk to reoffend. Other advocates have also suggested giving conditional releases to federally sentenced aging persons at higher risk of serious illness, incarcerated mothers and their children, as well as those at their parole eligibility date. Some of these steps to prevent the spread of COVID-19 have already been adopted by other Canadian jurisdictions.
Select Responses from other Canadian Jurisdictions
Provinces and territories have adopted different strategies to respond to the threat of COVID-19 in their institutions, which house persons sentenced to less than two years. They also house persons held in custody while awaiting trial, and trial delays are expected as a result of the pandemic.
One approach that mirrors CSC’s, announced by jurisdictions including British Columbia, Saskatchewan, Newfoundland and Labrador and Nunavut, is to restrict or suspend in-person visits to limit the likelihood of the virus entering the institution.
Another strategy is to release certain persons from custody where doing so will not jeopardize public safety. Section 732 of the Criminal Code authorizes a court imposing a sentence of imprisonment of ninety days or less to order the sentence to be served “intermittently” rather than all at once, which usually means the person will spend weekdays in the community and weekends in custody. To help prevent the spread of COVID-19, Nova Scotia has announced that 41 people who are serving intermittent sentences will be released on temporary absence.
Ontario had originally announced that those serving intermittent sentences on weekends would be required to report to their facility, but later updated this policy so as to “avoid cycling individuals back and forth between the community and a correctional facility.” Amendments made to the relevant regulations will also allow senior corrections officials to authorize longer-term temporary absences beyond the former 72-hour maximum, and to grant certain persons near the end of their sentences an early release.
In addition, a recent decision of the Ontario Superior Court of Justice indicates that the impact of COVID-19 is a factor courts may take into consideration in deciding whether a person should be detained in custody or released on bail prior to trial.
The Correctional Investigator of Canada and the Canadian Human Rights Commission, Aging and Dying in Prison: An Investigation in the Experiences of Older Individuals in Federal Custody, 28 February 2019.
World Health Organization Regional Office for Europe, “Preparedness, prevention and control of COVID-19 in prisons and other places of detention,” 15 March 2020.
United Nations Human Rights Office of the High Commissioner, Urgent action needed to prevent COVID-19 “rampaging through places of detention” – Bachelet, 25 March 2020
UCCO-SACC, COVID-19 – Press release – March 30.
United Nations Office on Drug and Crime, “Position Paper – COVID-19 preparedness and responses in prison,” 31 March 2020.
Jane Philpott and Kim Pate, “Several measures should be taken immediately to prevent a catastrophic outbreak of COVID-19 in Canada’s overcrowded and underprepared prisons,” Policy Options, 31 March 2020.
Authors: Jean-Philippe Duguay and Cynthia Kirkby, Library of Parliament