Revised on 26 June 2020, 8:20 a.m.
Any substantive changes in this HillNote that have been made since the preceding issue are indicated in bold print.
(Disponible en français : La COVID 19 et le système correctionnel fédéral)
Since the start of the COVID-19 pandemic, federal penitentiaries across the country have reported infections, with institutions experiencing outbreaks in Quebec, Ontario and British Columbia. Both federally sentenced persons and guards have been infected. 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 federally sentenced population is particularly vulnerable due to aging and higher rates of chronic illness. Many federally sentenced persons have struggled with high-risk behaviours associated with chronic health conditions such as Hepatitis C Virus and Human Immunodeficiency Virus. 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 health issues.
Correctional Service of Canada and the Provision of Health Care
Correctional Service of Canada (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, “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 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.” CSC has also implemented measures to prevent the spread of this disease, such as:
- halting all temporary absences unless medically necessary;
- suspending all visits and programs; and
- closing communal spaces, such as gyms and libraries.
These measures, however, have been criticized for being inadequate and for potentially violating rights.
Correctional Investigator COVID-19 Status Update
On 23 April, the Correctional Investigator (CI), the ombudsman for federal corrections, published a COVID-19 Status Update, in which he reported that 25% of complaints to his office since mid-March have been related to COVID-19. These have ranged “from staff not wearing proper protective gear or not practicing safe physical distancing to loss of yard time, lack of access to programs, chaplaincy and overall restrictive routines and conditions of confinement.”
Further, in his view, the human rights of federally sentenced persons infected with COVID-19 are being violated at some institutions. Specifically singling out Mission Institution in British Columbia, the CI stated that infected federally sentenced persons there “have been subjected to periods of 24-hour lock-up with no access to phones, fresh air, lawyers or family members,” noting that none have been able to contact his office.
He stated that the conditions of solitary confinement under which they are held “is a violation of universal human rights safeguards, and can never be considered justifiable, tolerable or necessary in any circumstance.”
In response to conditions inside penitentiaries, some are advocating the early release of vulnerable inmates who would not pose a risk to public safety, which is an approach that some provinces and other countries have adopted.
The only federally sentenced person reported to have been released by CSC because of COVID-19 to date, however, is Derrick Snow. Mr. Snow sought a court-ordered release for fear that contracting COVID-19 would be fatal because of his multiple chronic illnesses. The day before his case was to be heard, the warden granted him an unescorted temporary absence on medical grounds.
In addition, according to “COVID-19 and the Parole Board of Canada,” eight “parole by exception” cases were granted since 1 March 2020, compared to four the previous fiscal year.
Current Court Challenges
Three court challenges against the federal government’s handling of the pandemic within penitentiaries appear to be ongoing.
One, brought by an applicant at Warkworth Institution in Ontario and supported by organizations including the Canadian Civil Liberties Association, seeks orders including that CSC:
- immediately take “proactive and systematic steps to reduce the population of prisoners in CSC institutions to the greatest extent possible consistent with public safety”;
- implement adequate physical distancing measures;
- implement comprehensive testing and contact tracing;
- provide adequate personal protective equipment, cleaning supplies, hand soap and hand sanitizer; and
- enhance cleaning of common areas.
In addition to these orders, the applicants seek declarations:
- That “CSC’s failure to take all reasonable steps to ensure a safe and healthful penitentiary environment, provide prisoners with essential health care in the context of COVID-19, and take each prisoner’s health status and health care needs into consideration in all decisions affecting the prisoner” violates its obligations under the CCRA and the Canadian Charter of Rights and Freedoms (Charter).
- That “CSC’s use of lockdowns and confinement of prisoners in conditions equivalent or tantamount to segregation for indefinite and prolonged periods of time in response to COVID-19 violates the rights of prisoners” as guaranteed by the Charter, including the right “not to be arbitrarily detained or imprisoned” and the right “not to be subjected to any cruel and unusual treatment or punishment.”
The other ongoing cases are reported to be applications for class action lawsuits, seeking compensation for those incarcerated in two of the federal correctional institutions where the virus spread most widely.
The application filed in relation to Mission Medium Institution in British Columbia is reported to allege that inmates got sick because CSC failed to take “adequate measures” to protect against COVID-19 and then failed to “provide appropriate medical care in a timely manner or at all.”
The application filed in relation to Joliette Institution in Quebec reportedly alleges that CSC did too little, too late, to protect against the spread of the virus, and seeks damages including an amount of $100 per day for each person incarcerated in a federal institution in Quebec since 13 March 2020, when Quebec declared a public health emergency.
The Correctional Investigator, COVID-19 Status Update, 23 April 2020.
Canadian Civil Liberties Association, CCLA and Partners File legal Case Against the Correctional Service of Canada.
Union of Safety and Justice Employees, COVID-19 and the Federal Prison Situation in Quebec: a disaster in the making.
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