A letter regarding inmates and #COVID19

Here is a letter that I sent to Hon. Blair, Commissioner Kelly, Hon. Schweitzer and Hon. Jones and cc to relevant shadow ministers/critics. You can view it here.


Inmates and #COVID19

April 6, 2020

Via email: BILL.BLAIR@PARL.GC.CA

Honourable Bill Blair, PC MP                                                                                                          

Minister of Public Safety and Emergency Preparedness

Public Safety Canada

269 Laurier Ave W

Ottawa, ON K1A 0P8

Via email: Anne.Kelly@CSC-SCC.GC.ca

Commissioner Kelly

340 Laurier Avenue West

Ottawa, ON  K1A 0P9

Via email: doug.schweitzer@assembly.ab.ca

Honourable D. Schweitzer Minister of Justice and Solicitor General, Deputy House Leader Office of the Minister

Justice and Solicitor General 424 Legislature Building 10800 - 97 Avenue Edmonton, AB T5K 2B6

Via email: sylvia.jones@pc.ola.org

Solicitor General George Drew Building, 18th Floor 25 Grosvenor St.

Toronto,ON M7A 1Y6

Dear Hon. Blair

         Commissioner Kelly

         Hon. Schweitzer

         Hon. Jones

COVID-19 and Reasonable Release of Inmates

Introduction

I am an Indigenous lawyer with a broad public law practice. I am writing this letter to raise serious concerns about the current state of inmates in Canada in light of the COVID-19 pandemic. Currently, there is limited public information about the welfare of inmates in the face of this health crisis, unless inmates speak out, and they are being punished for doing so. [1]

I am frequently asked to speak, consult, advise or contribute to matters concerning the rights of Indigenous women, particularly Indigenous women in prison. I have published extensively on issues and matters that concern the safety and well-being of Indigenous women and girls, including those who experience trauma and continued criminalization. I am also a survivor of violence and exploitation. My story as an Indigenous woman living in Canada is not unique. The stories you read about in the media about young Indigenous women and girls surviving violence or exploitation is also my story. However, stories like mine are often erased, ignored or silenced in order to advance the state’s goals to increase criminalization of Indigenous people’s lives while concurrently decreasing social supports for their well-being.[2] This often results in the over-policing and under protection of Indigenous people; the police are always there to arrest us, but they are never there to protect us. When I write, my words and advocacy are often used against me to silence me further. I often experience targeted backlash and harassment for my public advocacy. Nevertheless, I believe, as a member of the legal profession and an Indigenous community member, it is my duty to speak out regarding my concerns about inmates; I may experience some harm, but these harms are not as great as those endured by inmates.

While I have concern for all inmates, I have particular concern about Indigenous women and girls, two-spirit people and non-binary people in prison—groups of people with experiences that are often erased and/or ignored, either intentionally or unintentionally, by mainstream media or policy makers. Accordingly, I write this letter as a member of the legal profession with both lived experience and conventional education, and I write this in an effort to amplify the voices or experiences often ignored, silence or erased—voices that are intentionally being ignored, silenced or erased by the very institutions established to protect society.

Context

I left home as a teenager. I did not leave home on good terms. I was learning to live with a brain injury at that time and the effects of this injury negatively impacted me and my relationship with my family. I am proud to say that I now have a wonderful relationship with my family. However, at that time, the police gave me an ultimatum: leave home or be arrested. So, I left. Upon turning 18 years old, I entered the sex trade as an escort. Shortly after entering the sex trade, I became a victim of sexual and gendered-based violence. I survived. Unfortunately, around this same time, I was also arrested. I remember my time in the institution. It was unclean. I was unable to shower regularly, and I was placed on suicide watch. The only time I felt treated like a human being was when one of the guards who was watching me shared her brownie with me, a likely offence for her and for me to accept.

Once I left my home region completely, I did so in the context of selling/trading sex. I arrived in London, Ontario and I met the same fate I had recently left back home.

In my early twenties, I found myself being victim to violence and exploitation. Again, I soon was arrested and like before, I was on suicide watch at Elgin-Middlesex Detention Centre in London, Ontario. I recall the institution being much like the last, unclean with inedible food and inaccessible shower facilities (I recall only showering once, before my court appearance).

I share these experiences with you to remove the degrees of separation that exist between the institution and those who are institutionalized. Those who sit in Canada’s prisons are humans with inalienable rights. Further to this, they have families and loved ones; they have passions and talents, as well as promise and potential. They deserve the same level of care and consideration as every member of the general public during this time.  

It has been several years, over a decade, since these incidents. I am now a lawyer called in Alberta and Ontario. I cannot stay silent, knowing that many of these inmates are likely experiencing far worse conditions today in terms of cleanliness, especially during COVID-19.[3] More alarming, however, is that it is completely unknown what is happening in provincial and federal institutions concerning inmates’ health and safety during COVID-19.

Based on the Correctional Investigator of Canada, Dr. Ivan Zinger’s 2019 report, here is what is known about prisons in Canada:

  • There is an increase in the number of strip search compliance issues;

  • There is a “staff culture of impunity and mistreatment at Edmonton Institution”;

  • There is an “elevated rate of use of force incidents at the Regional Treatment Centres (designated psychiatric hospitals for mentally ill patient inmates)”;

  • There is a “lack of in-cell toilets on one living unit at Pacific Institution”; and

  • There still exists “prison food that is substandard and inadequate to meet nutritional needs”, inter alia.[4]

Based on the reporting around COVID-19, here is what we know in order to keep citizens safe:

  • People must be practicing physical (or social) distancing;

  • People should be covering their faces with suitable masks to prevent viral shedding[5];

  • People should be maintaining their hygiene by washing their hands regularly; and

  • People should have access to alcohol-based sanitizer to sanitize hands and frequently touched surfaces.

The facts outlined in these two lists are in conflict with one another.

Recommendations

Given the aforementioned context and facts, I support the recommendations of bodies such as the Canadian Bar Association[6] and Canadian Civil Liberties Association[7] aimed to protect the health and safety of inmates during this time. In addition to these recommendations, I am calling on your ministries and respective institutions to make the necessary orders as permitted by your governing statutes to consider the following:

Federal

  • Updating prosecution policy to consider exigent circumstances, namely COVID-19, as a basis to proceed with judicial referring hearings under the Criminal Code, RSC 1985 c C-46[8];

  • Relying on relevant provisions in the Corrections and Conditional Release Act, SC 1992, c 20 (“CCRA”) to do the following:

  • Allow inmates to update the accuracy of their information in possession by the relevant institution which may positively impact their release at an earlier date as soon as possible;

  • Direct the Commissioner to review, update, amend or allow for discretion in enforcing directives including but not limited to temporary absences, work authorizations, or search plans that center the inmates’ safety, well-being and health without limiting or breaching Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982(UK), 1982, c 11, s 91(24) (“Charter”);

  • Assess use and reasonableness of all structured units;

  • Assess use and reasonableness of classification systems;

  • Assess use and reasonableness of disciplinary sanctions;

  • Assess use and reasonableness of routine non-intrusive or frisk searches;

  • Ban and eliminate use of routine strip searches;

  • Amend procedure for searches of cells;

  • Ban and eliminate use of routine searches; and

  • Provide essential health care to eliminate and/or reduce COVID-19 transmission including but not limiting to prioritizing release of inmates where possible with the necessary safety supports in place as needed.


The purpose of the correctional system ensures that:

  1. sentences are carried out through safe and humane custody and supervision of inmates; and

  2. sentences assist with rehabilitation of inmates and their reintegration into the community.

The paramount consideration under the CCRA is the protection of society. While this paramount consideration is important, it is not the only consideration. Inmates’ dignity, well-being, health and safety are also of critical importance.

Specifically, I have concerns around the lack of relevant information that is available to the public on the conditions of correctional institutions, during COVID-19. The CCRA sees that protection of society is enhanced by the CSC’s timely exchange of relevant information to certain parties and through communications about its correctional policies to parties who include the public. There is no such information. The CSC must also consider the least restrictive measure consistent with the protection of society. The CCRA does not create a freestanding right for the Ministry and Commissioner to arbitrarily hold inmates without consideration of the current conditions. Protection of society does not mean unknown imprisonment during a time of uncertainty—uncertainty for inmates, their well-being, safety and health.

Though I doubt the Union of Canadian Correctional Officers intended for this, I have concern for inmates in the context of the Union’s comments in the media, explicitly where the Union suggests that releasing inmates would increase the risk of COVID-19 to the rest of Canada.[9] This comment implies that COVID-19 is already rampant in correctional institutions. Transparency is not simply needed for the sake of transparency; the level of urgency demands transparency now.

Provincial

The relevant provincial legislation governing both Ontario and Alberta institutions provides powers to grant temporary absences for inmates. I strongly urge that the provincial ministers consider these provisions and any corresponding regulations during this time.

Further, there are broad emergency and public health powers upon which the provinces rely on during this time. I strongly urge the provincial ministries to consider emergency and/or public health orders to allow for the release of inmates in accordance with the Charter.

For Alberta, the Public Health Act, RSA, c P-37 explicitly includes correctional institutions as a public place in which its orders could apply. Such orders should allow for the timely release of inmates in accordance with the Charter.

For Ontario, while the Solicitor General uses emergency legislation to apply to the general public, there is nothing prohibiting or preventing the Solicitor General from making an emergency order that applies to correctional institutions, in accordance with the Charter. In fact, the Emergency Management and Civil Protection Act, RSO 1990, c E-9 explicitly states that such orders are subject to the Charter, which suggests this kind of release order is not only permissible but required in this circumstance.

Concluding Remarks

In the pursuit of “protecting” society from inmates, we often forget that inmates are also our mothers, fathers, sisters and brothers. Society often speak of inmates as people deserving of inhumane punishment. I do not doubt that some victims and/or survivors of serious crimes including their families and friends deserve justice. However, justice is not unilateral. The justice system must exist to uphold the rights of both victims and those who are incarcerated, if human rights are to be truly ubiquitous. These rights compel the state to uphold inmates’ safety, well-being and health. I urge you all to use the identified powers in your governing statutes to empower the release of inmates where suitable, and to ensure their safe rehabilitation into society.

If there is one thing I urge you all to consider, it is that I am one person, but I survived. Many people on the inside may not if you do not act now.

Sincerely and chi-miigwetch,

Naomi Sayers

Cc/ Attorney General Critic (ON), GSingh-CO@ndp.on.ca

       Community Safety and Correctional Services Critic (ON), KYarde-QP@ndp.on.ca

       Justice Critic (AB), Kathleen.ganley@assembly.ab.ca

       Justice and Attorney General, Shadow Minister (Can), Rob.Moore@parl.gc.ca

       Public Safety and Emergency Preparedness, Shadow Minister (Can),

Rob.Morrison@parl.gc.ca

      Public Safety and Emergency Preparedness, Shadow Minister – Associate (Can),

Glen.Motz@parl.gc.ca

[1] Janice Johnston, CBC News (Edmonton), 5 April 2020, online: https://www.cbc.ca/news/canada/edmonton/edmonton-institution-inmate-punished-for-speaking-to-media-about-covid-19-1.5522166 (Accessed 5 April 2020).

[2] See similar comments that I made at Parliament’s Standing Committee on Justice and Human Rights wherein I was the only First Nations woman with lived experience to publicly oppose the legislative response to Canada (AG) v Bedford, 2013 SCC 72: https://openparliament.ca/committees/justice/41-2/33/naomi-sayers-1/only/ (Accessed 5 April 2020).

[3] See Min Byung-Moon,  Toronto Life, “‘There’s no such thing as social distancing in here’: An inmate tells his story”, 3 April 2020, online: https://torontolife.com/city/theres-no-such-thing-as-social-distancing-in-here-an-inmate-tells-his-story/ (Accessed 5 April 2020).

[4] Correctional Investigator, Office of the Correctional Investigator Annual Report 2018-2019, 25 June 2019, online: https://www.oci-bec.gc.ca/cnt/rpt/annrpt/annrpt20182019-eng.aspx (Accessed 5 April 2020).

[5] Centers for Disease Control and Prevention, “How to Wear a Cloth Face Covering”, ND, online: https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html (Accessed 5 April 2020). Generally, see Nancy H. L. Leung, Daniel K. W. Chu, Eunice Y. C. Shiu, Kwok-Hung Chan, James J. McDevitt, Benien J. P. Hau, Hui-Ling Yen, Yuguo Li, Dennis K. M. Ip, J. S. Malik Peiris, Wing-Hong Seto, Gabriel M. Leung, Donald K. Milton, Benjamin J. Cowling. Respiratory virus shedding in exhaled breath and efficacy of face masks. Nature Medicine, 2020; DOI: 10.1038/s41591-020-0843-2.

[6] Canadian Bar Association, Letter to Hon. Bill Blair PC MP re COVID-19 and Incarcerated and Detained individuals, online; http://www.cba.org/CMSPages/GetFile.aspx?guid=928356a6-2fbf-4e50-871d-331a10299a20 (Accessed 5 April 2020).

[7] Canadian Civil Liberties Association, CCLA to provinces and territories: Drastic action is needed now to protect incarcerated population, correctional workers, and broader communities, 2 April 2020, online: https://ccla.org/coronavirus-update-letter-to-provandterr/ (Accessed 5 April 2020).

[8] See Public Prosecution Service of Canada Deskbook, Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act, online: https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p3/ch20.html (Accessed 5 April 2020).

[9] Jim Bronskill, The Canada Press (CTV News), “Consider releasing some inmates to stem COVID-19 in prisons, minister requests” 31 March 2020, online: https://www.ctvnews.ca/health/coronavirus/consider-releasing-some-inmates-to-stem-covid-19-in-prisons-minister-requests-1.4876496 (Accessed 5 April 2020).

© 2019 - 2020 by Naomi Sayers

This website and associated materials do not contain legal advice and does not contain a guarantee, warranty, or prediction regarding the outcome of any legal matter. Unsolicited information will not be protected by lawyer-client privilege.

Photo Credit: Jessica Blaine Smith

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