Prisoners dilemma

COVID-19 has revealed how unprepared our legal institutions are for the pandemic. One of the more immediate concerns confronting the courts is what to do with offenders and those waiting to stand trial.

Since Canada first saw a significant number of coronavirus cases in March, judges have had to grapple with what weight, if any, to give the health crisis in handing down their rulings.

In 20 cases that have been published online, across five provinces, the courts have cited the threat of COVID-19 as a release to grant bail, reduce a prison sentence, or otherwise grant release about half the time. In those cases, they sided with defence counsel who argued that prisons are uniquely dangerous places during a pandemic, and that the threat should be a factor in the court's deliberations.

On the other side, Crown prosecutors have argued that giving COVID-19 too much weight in sentencing could amount to a "get out of jail free card," creating a "free for all" on the courts.

The tension comes as cases mount in Canadian prisons. According to Correctional Services Canada, more than 177 federal inmates have tested positive for COVID-19. More than 60 other provincial inmates have also contracted the virus, according to an unofficial count. One inmate, at the hard-hit Mission Institution in British Columbia, has died.

"Few situations are as potentially explosive and life-threatening because of the COVID-19 pandemic as those within Canada's prisons, jails and immigration detention facilities for those detained and for the general public," reads a statement from the Canadian Bar Association's sections on Criminal Justice and Immigration and Refugee law.

"As a general principle, the CBA has argued that incarceration and detention should be the option of last resort when necessary for public safety," the March 30 statement reads. "With the additional health threats now present, it is especially important to consider releasing those who can safely be released from custody in prisons and immigration detention facilities."

The CBA, as well as a host of other legal, health, and human rights organizations, has called on Ottawa to take steps to decarcerate prisons, jails, and immigration detention facilities across the country.

Some jurisdictions have taken action. Ontario and the Northwest Territories have said they've reduced the inmate population by as much as a quarter in the past month. Most other provinces have taken steps to release inmates already on day parole, or who were nearing the end of their sentence.

The federal government has not made any significant additional reduction in the inmate population.

The Public Prosecution Service, meanwhile, has sought jail time for non-violent offences and parole violations. In a case before the Ontario Superior Court in late March, the Crown told the court that while the PPSC was reviewing files and pursuing more lenient bail on a case-by-case basis, they would oppose bail for the drug trafficking charge before them.

The Crown argued that "public confidence in the administration of justice would be lost if violent drug dealers were released. The court cannot give the signal or perception that it is a 'free for all,'" Justice Andrew Goodman wrote, summarizing the Crown position. "The administration of justice would falter if the public were to perceive that, due to strained resources, the ability to ensure the safety of the public would be compromised.

The court acknowledged the arguments, but ultimately granted bail.

Similar cases have popped up across the country, with each one posing a unique challenge for the courts, as they try and balance the possible risk to the inmate, given their age and prior conditions, against the potential risk they re-offend.

So far, the higher courts have said little on the matter. Earlier in April, the Ontario Court of Appeal heard from the prosecution in R. v. Kazman that "there is no evidence...that the applicant is living in crowded conditions rendering him at any greater risk of contracting the virus than any other member of the public."

The court rejected the argument, acknowledging that the accused's age, prior health conditions put him at risk for the virus, while "being in jail will make it difficult, if not impossible, to practice such social distancing." It ordered his release as he pursues an appeal of his conviction.

"I emphasize that this does not mean that bail will be granted in any case where COVID-19 is raised as an issue," Justice Alison Harvison Young wrote.

Not every Crown is seeking jail time, however.

"Anecdotally, Crown prosecutors are being much more lenient on opposing bail," says Tom Engel, who practises law in Edmonton and serves as President of the Canadian Prison Law Association.

Cate Martell, who served as counsel in Kazman, says she has already seen a variety of approaches from prosecutors, but that Crowns had worked quickly, earlier in the pandemic, to get non-violent offenders out on bail. “So, I think the cases we are seeing come out from the Superior Court now are the harder cases — people facing very serious charges, often with lengthy criminal records and/or poor histories of compliance with court orders,” she says.

Martell says her application before the Ontario Court of Appeal was an “easy case,” given her client had already been out on bail, was older, and had underlying health risks. “However, that doesn't really explain why some Crowns are still getting up in court and arguing that there is no heightened risk to incarcerated people of contracting COVID-19. It's frankly bizarre that this argument is still being made,” she says.

It’s even more absurd, she says, given the conditions make it unsafe for the court itself to meet in-person. “How could it possibly be safe for individuals to be living in crowded jail facilities, where they share pay phones with hundreds of other people, line up for meals and medications, and often have scarce supplies of basic necessities like soap?”

Engel is seeking release for his clients who are good candidates for release. "[My client] has got three months left," he says. But the piecemeal approach of applying to the court for every inmate who should be incarcerated is a dizzying prospect. "Our position is: if you've got three months left, and you're not a danger to the public, get them out. And they have the tools to do it, whether federally or provincially, they can do it."

Ottawa lawyer Paul Champ, along with the Queen's Prison Law Clinic, applied to the Federal Court seeking an unescorted temporary absence permit for their client. His client had already requested such a permit from the prison on medical grounds. The warden of his institution had not responded.

After some wrangling over dates, the court agreed to schedule a hearing in short order. On the eve of the hearing, Correctional Service Canada notified his client that his request for a permit was granted.

"He is the first federal inmate to be released under the temporary absence provisions since the coronavirus state of emergency one month ago," Champ says. "It's unfortunate we had to fight for over three weeks to secure his release. But we are hopeful that CSC will now consider using this measure more broadly to facilitate the expedited release of other medically vulnerable prisoners."

Both Engel and Champ note that the attorney-general has wide latitude in selecting candidates for release, from both federal and provincial institutions. The tools range from the unescorted temporary of absence permits to the royal prerogative of mercy, which allows wide latitude for pardons and conditional release.

On April 8, the Public Prosecution Service released new directives to Crown counsel, instructing prosecutors to pursue "the reduction to the extent possible, in a principled manner, of the detention population during the pandemic period." The new guidance encourages Crowns to seek alternatives to jail time, while still considering the impacts on public safety.

“That balancing exercise is going to change as the weeks go by and more jails suffer outbreaks,” Martell says. “It's going to become more and more untenable for Crowns to argue that the risk to anybody in custody is ‘low.’”

Meanwhile, there are still roughly 50,000 inmates in federal and provincial custody.

A class action suit, on behalf of Quebec federal inmates, has been filed against the Canadian government by the Association des avocats et avocates en droit carcéral du Quebec. Philippe Larochelle and Marie-Claude Lacroix are representing the applicant, a woman in the Joliette Institution for Women, where an outbreak has already infected the majority of the inmates.

The lawsuit alleges that the federal government and CSC failed to implement policies to prevent COVID-19 outbreaks, allowed each institution to "improvise the manner in which they would manage the situation," and failed "to take concrete measures to protect individuals in its care," amongst a host of other failures.

"CSC acted too little and too late," the action alleges.

Lacroix told CBA National that this action is about giving a recourse for those who are stuck inside these institutions with little hope of release. “Only a percentage of the population would be eligible for [unescorted temporary absence permits], what about lifers? What about people who have indeterminate sentences? What about the ones who are far from their release date, or who are inside for violence offences?” she says, adding that Correctional Services “still have an obligation to ensure that those individuals under their responsibility are safe.”

Lawyers elsewhere in the country are also actively pursuing the possibility of class actions.

Asked repeatedly on Monday, Public Safety Minister Bill Blair has not indicated any new measures to be taken to release inmates or reduce the risk of COVID-19 in prisons.