As Canadian courts started to shutter themselves against the coronavirus in the last two weeks of March, there were responsible and urgent efforts made by court staff, select judges, Crown prosecutors, police, defence counsel, social workers and community housing providers to get many prisoners out of Canadian jails and remand centres. With little guidance about how long the pandemic would keep the courts closed, the inspiration for the effort was to protect as many prisoners as possible from the risks that would follow from a COVID-19 infection in the confined, unhealthy environment of a detention institution. The practical result of these efforts has varied from province to province, within provinces, and between federal and provincial jurisdictions.
At first, it was seen to be important to get people who were on remand for non-violent offences out of the jails. People on remand are in jail because they have been denied release, not been granted release, or because they are unable to meet court-imposed conditions for their release. What these remand prisoners usually have in common is that they are in jail even though they have not been found guilty of the charges against them. Judges have acknowledged that some of these persons are in jail simply because they do not have stable housing outside of their prison. Those proved to be the easiest cases to deal with.
Prisoners who were close to the completion of their sentences were the next group which seemed safest to release from federal prisons and provincial correctional centres. If these offenders had been serving a sentence for non-violent offences, it seemed particularly smart to free them from the inherently unhealthy living conditions of living in close physical community with others, several of whom have significant health vulnerabilities.
The initiative to reduce the numbers kept in prisons, correctional centres, and remand centres seems to stall there. Courts in several provinces decided not to hold trials until at least June—and no jury trials before the fall. Remand prisoners who had already been waiting for trials are therefore now being told to wait substantially longer, and with no actual trial date scheduled. These prisoners can anticipate an even longer wait for trial once the courts choose to set a trial date in, hopefully, June. Prisoners who continue on remand until then can expect to engage in stiff competition with other prisoners for prompt court dates, and sufficient court time to deal with their matter fairly.
During this time of waiting by persons who may not be guilty, or who may not be violent or a danger to the public despite their criminal history, there are other burdens attributable to COVID-19. Prisons and correctional centres and remand centres have closed down any opportunity for prisoners to even have face-to-face visits through glass barriers, or to meet with a lawyer. Voice contact with family through telephone is subject to limited phone availability. Private telephone time even to speak with a lawyer remains scarce. Prisoners (or those who receive their calls) sometimes also need to be able to afford the charges that toll on each telephone call.
For those serving a sentence, or those whose behaviour has demonstrated an unacceptable public risk for violence when unsupervised in the community, or who have been denied release for some other reason, there can be no in-person chaplaincy service, nor community partner visitation programming, and no family visiting. This effective total separation of the remand population from the larger community is a most difficult feature of prisoner detention during this pandemic.
In an apparent effort to prove their capacity to maintain a healthy-enough correctional environment, the management at both federal and provincial levels have opted to confine, restrict and isolate their captive population more than ever. The answer to inadequate supplies of soap or disinfectant, or even the opportunity for daily showers has been to elevate the use of the most coercive prison tools. The federal correctional system has been less successful in preventing in-prison outbreaks of the virus than the provincial systems, but there have been outbreaks at both levels. Some provinces have claimed an entire absence of infection within their institutions.
Some jurisdictions have started to figure out how provincial court trials might be able to go ahead. Unfortunately, superior courts have generally been less sympathetic than the provincial courts to claims that the pandemic constitutes an urgent enough problem to unlock the courts themselves. The risks to the health of prisoners, which physicians dispute and debate with the managers of the remand institutions, have not generally been seen as important enough to justify innovating processes in a way that would allow trials to proceed at the Superior Court level. While both levels of court take the time to work through their concerns, prisoners are expected to continue to endure the health risks that the courts themselves are not prepared to face in their own spaces. The message from the superior courts of several provinces has been that the pandemic threat of COVID-19 is not an “urgent crisis.” It is too often being seen as simply an interruption to regular operations.
Canada, like other countries, has experienced outbreaks of infections in its prisons, and deaths of prisoners. Offenders, as well as the presumptively innocent on remand, continue to be at serious health risk. This has persisted weeks into what governments across the country have declared to be states of emergency.
Other countries have responded differently. Iran, for example, chose at the onset of the pandemic in that country to release more than 80,000 detained individuals from their institutions of detention. Canada’s number of COVID-based releases would be miniscule in comparison.
There are still things that can be done. The creation of more community spaces for prisoners who have housing needs can help to keep people out of remand facilities as new people continue to get arrested during the pandemic weeks. For those who are compelled by law to await trial inside a remand facility, advocacy by the public for a more sensitive response by the trial courts to their plight might help. Thoughtfulness by government policy makers might also allow detention institutions themselves to conceive of a way for some better kind of community contact and chaplaincy services to be available to the justice system’s inmates.
Donald C. Murray, Q.C., began practicing criminal law at Dalhousie Legal Aid, Halifax, in 1983. He has continued a private criminal defence practice in Nova Scotia since 1985, in addition to working in the areas of human rights and aboriginal justice. He is a warden at Christ Church in Dartmouth, N.S., and grew up in St. Paul’s Church in Lachine, Que.
Updated May 27, 2020.