COVID-19: Human rights implications for Canadians held in remand, prisons and jails

By Linda McKay-Panos

Reposted from LawNow 44(5) with permission

We find ourselves in unprecedented times. As we scramble to “socially distance” and address the economic consequences of the global pandemic, inmates in Canadian institutions are particularly vulnerable to adverse effects by virtue of the conditions where they are held. On March 30, 2020, the Canadian Government announced that two inmates in the Port-Cartier Institution of Quebec tested positive for COVID-19. Nine employees of the institution also tested positive.

There are significant numbers of people held in remand or custody. The majority of people held in remand have not been convicted of a crime and are awaiting trial. In 2017-2018 in Canada, there were 38,786 adults in provincial/territorial or federal custody per day, 792 youth in custody on average per day, and about 50% more adults (14,812) in remand that were in provincial/territorial sentenced custody (9,543).

Inmates held in close contact with each other who cannot “socially distance” or who do not have adequate access to hand sanitizer, masks or even soap are likely to become infected and could affect the staff as well. There are currently 700 federal inmates who are over 65 years old; these individuals are at very high risk.

While some people may not be particularly sympathetic, prisoners do have rights to adequate health care, reflected in both international law and in Canada’s Corrections and Conditional Release Act, (CCRA). The United Nations Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) provide:

Rule 24

1. The provision of health care for prisoners is a State responsibility. Prisoners 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.

2. Health-care services should be organized in close relationship to the general public health administration and in a way that ensures continuity of treatment and care, including for HIV, tuberculosis and other infectious diseases, as well as for drug dependence.

While these rules are not legally enforceable, they set the standard for treatment of prisoners that is accepted by countries across the world. The CCRA is legally enforceable in Canada. It provides:

86 (1) The Service shall provide every inmate with

(a) essential health care; and

(b) reasonable access to non-essential health care.

(2) The provision of health care under subsection (1) shall conform to professionally accepted standards..

CRC Commissioner’s Directive 800 defines essential health care as:

Health services: physical and mental health services, which include health promotion, disease prevention, health maintenance, patient education, diagnosis and treatment of illnesses, in accordance with the National Essential Health Services Framework.

It would seem that access to effective measures to address COVID-19 would be part of “essential health care”.

There have been calls by various justice-related groups for prisons and jails to release non-violent inmates, those who are medically vulnerable or those who have less than 90 days left in their sentences to stop the spread of the coronavirus. Some inmates are considering legal action. In Prince Albert, the inmate wellness committee hired Ottawa lawyer Michael Spratt to explore a possible legal challenge on how the government and prisons are handling COVID-19.

Some provinces have taken measures such as releasing some inmates (e.g., those who were serving on weekends) or creating separate spaces for those who become sick. However, those who are still in institutions face more isolation, dealing with no visitors, no recreation or gym time—all of which can result in mental health effects, such as depression or even suicide.

Hopefully, all possible measures will be taken to address the inmate population before some of these dire predictions come to fruition.