Canada Has Failed to Protect Inmates From Pandemic, Lawsuit Alleges

A wide-ranging lawsuit filed by a coalition of organizations alleges that Canadian government has failed its legal and constitutional obligation to look after inmates in federal prison amid the COVID-19 pandemic.

The suit alleges that Correctional Services Canada hasn’t done enough to help inmates protect against the virus, done little to get the most at-risk prisoners out of the dangerous environment inside those facilities, and it has violated inmates’ rights by locking them in their cells or solitary confinement indefinitely.

The case was brought forward by Sean Johnston, an inmate at the medium-security Warkworth Penitentiary in Ontario, serving a life sentence for murder. Johnston, amongst other illnesses, suffers from asthma and blood clots—putting him particularly at risk for the coronavirus.

Johnston is joined in the lawsuit by the Canadian Civil Liberties Association, the Canadian Prison Law Association, the HIV & AIDS Legal Clinic of Ontario, and the HIV Legal Network.

The legal challenge argues that Correctional Services Canada’s (CSC) duty to look after federal inmates, in the context of COVID-19, includes “taking immediate and proactive measures to depopulate its institutions to the greatest extent possible, consistent with public safety,” the court filing reads. “Unlike other correctional authorities around the world and across Canada, however, CSC has taken few if any steps to release prisoners from its institutions.”

As VICE has previously reported, claims from Justin Trudeau’s government that a significant number of federal inmates have been released due to COVID-19 do not appear to be accurate.

New numbers provided to VICE from the Parole Board of Canada and CSC underline just how little has been done to depopulate those prisons.

An April 27 statement from Public Safety Minister Bill Blair said that “at my request, [the Parole Board of Canada] PBC has amended a number of its policies to facilitate quicker decision-making processes.” That would mean that inmates who are of a low-risk to re-offend, who may be at particular risk of complications due to the virus, or who are already nearing the end of their sentence — or any combination of those three factors — could be released. The Parole Board could release those offenders to a halfway house, or release them to their family.

In particular, the Parole Board could grant “parole by exception,” where an inmate may not qualify for parole normally, but might be terminally ill or particularly at risk under the circumstances. “Since the onset of the pandemic, PBC has seen a significant increase in the number of parole by exception applications,” Blair’s statement read. The uptick in applications were proof of his government’s “expedited work” and has shown “above average results.”

Blair’s office and the Parole Board have not released the numbers behind those claims until this past Friday, when the board finally revealed that “since March 1, 2020, four parole by exception cases have been granted and 13 are scheduled for decision.”

The board rightly notes that this is a “significant increase” over 2019, when just four inmates were granted exceptional parole. There was, however, no global pandemic in 2019.

Regular parole hasn’t changed significantly either. The board told VICE that, on average, they hear 127 applications for parole a week. Since the beginning of May, that has increased to roughly 141 reviews per week.

Some of those inmates may find themselves leaving the frying pan to join the fire. Many halfway houses are not well-equipped to combat COVID-19 either. A resident of a Toronto-area halfway house told VICE that there is a confirmed case of COVID-19 in his facility, and that staff are doing little to stop the spread inside the house.

There are certainly inmates who are good candidates for release who are still inside on a technicality. Johnston is one of them, according to the lawsuit. He had previously been awarded temporary releases from his prison, but had that privilege revoked after corrections officers found an iPod in his cell.

Both the federal cabinet and Correctional Services have the power to release inmates, irrespective of the Parole Board. They have not exercised that power.

In fact, Correctional Services is releasing fewer inmates now than before the pandemic. Statistics provided to VICE reveal that just 566 were released from federal prisons in April—down slightly from a normal monthly average of about 600.

While the lawsuit argues that releasing inmates should be a first priority, there are other measures the applicants say must be taken. Expanding testing, for one—to date, 333 federal inmates have tested positive for the virus, but only 990 tests have been conducted. There have been isolated reports that corrections officers are refusing to administer tests to inmates. One healthcare worker told VICE previously that tests are only conducted if the inmate has shown symptoms, even those who have been in contact with sick inmates.

The lawsuit further requests that CSC provide adequate personal protective equipment and cleaning supplies. Inmates who have spoken to me in recent weeks said PPE is finally arriving, and is being used by both staff and inmates. While some prisons are cleaning extensively, others are still not taking any significant new measures. Hand sanitizer has still not been made available.

The lawsuit also goes after CSC’s use of lockdown to try and stem the spread of the virus. The civil liberties and human rights groups argue it is, essentially, a form of solitary confinement—something that has already been declared unconstitutional by courts in Ontario and British Columbia.

Inmates have said they are locked in their cells for more than 23 hours a day—sometimes for entire days at a time. Some are given 20 minutes a day out of their cells to shower and call loved ones.

The lawsuit, filed in Toronto on Tuesday, says Ottawa’s failure is particularly acute when compared to other provinces, which have taken significant steps to address the threat of the virus in their prisons.

“These breaches cannot be demonstrably justified in a free and democratic society,” the application concludes.

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