Imagine that you are having a nightmare in which you are living a happy life when a deadly and highly contagious pandemic strikes. The voices of authority instruct you what to do to survive: wash your hands frequently, keep two metres apart, and stay at home.
But in this nightmare, you have no soap anywhere in sight, and no access to running water. People controlling your movements pat you down and lock you in a tiny room in close quarters with one or two strangers. Your “amenities” include a tiny black and white TV set and a tinny FM/AM radio, if you are lucky. You cannot speak to your loved ones on the phone because of the lineups. There is no disinfectant available to clean the telephone.
You cannot see your partner or your children or find out how they are managing. Do you need to consult a doctor? It could take weeks, if not months, to be examined for anything besides basic treatment. You will have to share a washroom and shower with 20 or 30 other people. Hand sanitizer is considered contraband. Those around you start coughing and fall into high fevers. Some are near death. You might be next.
You wake up, but this is not a nightmare in your dreams. This is the reality that thousands of inmates across Canada are experiencing under COVID-19.
Positive tests soar for inmates and guards
On April 12, the Mission Institution in British Columbia reported 35 positive cases of COVID-19 among prisoners, with many already hospitalized, and several guards testing positive as well. The Joliette Institution in Quebec reported 17 positive results. 48 correction officers from three prisons in Quebec have also tested positive. Once all test results are in, the results are likely to be much higher.
Welcome to Canada’s federal penitentiary and provincial reformatory systems in the age of the double plagues of neoliberalism and COVID-19. These are the institutions where the class nature of capitalism draws its sharpest lines.
Those who occupy prisons are unable to fit into the normative structures of capitalism due to poverty, marginalization and discrimination. They are the first victims of any cutbacks in medical and social services and economic downturns; the first fired and the last hired. Some of them are often wrongly maligned as the detritus of society by those who believe there is nothing like incarceration to keep their plight out of sight and out of mind.
Independent former federal corrections investigator Howard Spears describes the incarcerated as “a cross-section of the more marginalized and vulnerable members of society.” According to Chief Judge Pamela Williams of the Nova Scotia Provincial Court, “Jail is often a default position for a social safety net that has many holes in it. Often people are remanded not because they are a danger per se but because they don’t have stable housing in the community or supports that would help them.”
‘When one person gets the flu, we all get the flu’
Space has a political dimension. Sheltering in place, as we are urged to do, may mean a luxury home in a wealthy neighbourhood to a bank executive. To a gig worker, it may mean a windowless, one-room basement apartment with a shared washroom and a camping stove to cook her or his meals.
What does “space” mean to a prisoner? Prison is increasingly becoming a death sentence, though the penalty has been abolished since 1976. Canada has not released any prisoners from the federal prison system during the pandemic, which keeps those sentenced to two years or longer in 47 institutions across Canada. In comparison, the vast majority of countries affected by COVID-19 are releasing inmates, including Iran and France which released 50,000 and 5,000 prisoners, respectively. This means that federal low-risk elderly and vulnerable prisoners, even those nearing their release dates, are not freed and instead are being left in an escalating state of danger and despair.
“When one person gets the flu here, we all get the flu. The anxiety is over the roof here,” says Deepan Budlakoti, who is being held at the Ottawa-Carleton Detention Centre.
Nonetheless, the Trudeau government has stubbornly continued to keep in custody the 700 federal prisoners who are older than 65, suffer from dementia or Alzheimer’s disease, have mobility issues or are in palliative care. Thanks to the inflation of crimes that have required minimum sentences under former Prime Minister Stephen Harper, which the Liberals have kept in the Criminal Code, one quarter of all federal prisoners are over 50.
Soap is still a rare commodity in jail
In prisons, distancing is impossible. Available protective equipment is extremely limited, and guards have no or inconsistent access to hand sanitizers, gloves, masks and have even been denied the use of protective equipment. Guards in a Sarnia jail went on strike for three days until being allowed to use such equipment. Correctional officers in the Ottawa-Carleton Detention Centre also withdrew their services until screening measures were implemented.
Testing often consists of merely asking a prisoner if they are well upon admission. South Korea and Germany have demonstrated that mass testing and contact-tracing are key to effective anti-viral efforts, locating 30 percent of carriers who show no symptoms to trace their contacts and isolate the hot spots. But the federal government has ignored calls for meaningful testing levels by expert epidemiologists. Criminologist Justin Piche of the University of Ottawa says, “The federal government is dithering. They are playing with people’s lives and they have to take action immediately. You can tell who is really considered disposable in Canada right now.”
Correctional Service Canada has ignored the call for COVID-19 testing of all prison workers demanded by the Union of Canadian Correctional Officers. Instead of using the discretionary Temporary Absence Program to release prisoners who pose no threat, as many provinces have done, the Trudeau government has virtually cancelled the program, allegedly to prevent contagion in the event of re-entry.
Hand sanitizers contain alcohol that authorities fear could be consumed orally by inmates, so only the guards have spotty access to them. With many guards off sick, there is little supervision available to let prisoners out of their cells temporarily in already understaffed institutions. Parole hearings are now held electronically or in writing, which hinders consultations with counsel and presentation of documentary evidence which is prejudicial to the applicant. Prisoners have no stream of public health information regarding the viral threat. Trudeau has promised changes “in due course” to prevent deaths in prisons, but none have evidently been implemented.
Trudeau’s refusal to include federal jails in any serious preventative plan to stem the crisis is in lockstep with his predecessors’ inaction. Governments have largely ignored the calls made 80 years ago by Judge Joseph Archambault and echoed repeatedly since then, including by the Arbour Commission in 1996, for “radical change” in Canada’s prison system. All the divisions and oppressions that fester in society at large, find their homes in jails, usually in a magnified and more severe form.
Indigenous offenders in the federal prison system make up 30 percent of the total population and are increasing in number, despite being only five percent per cent of the population in Canada. Following the Gladue Decision and the findings of the Truth and Reconciliation Commission, the government recognized that Indigenous people are “jailed younger, denied bail more frequently, granted parole less often and hence released later in their sentence, overrepresented in segregation, overrepresented in remand custody, and more likely to be classified as higher risk offenders.”
Criminal Defence lawyer Tom Engel says that “When people are released on parole, they’re left without any supports or programs in the community. And what happens? They reoffend. Surprise, surprise.” Along with other criminal defence lawyers in Alberta, he calls for the government to “exercise the pardon authority in the Criminal Code, to immediately pardon all Aboriginal defenders that are currently serving time for non-violent crimes.” This avoids the trap of basing release on risk assessments that are systemically biased. Similar calls have come from the Union of BC Indian Chiefs.
The many victims of government dithering
Outside of the formal system of incarceration, there are likely close to 10,000 persons held in immigration detention centers throughout Canada at any time. Their facilities are in similar crowded and unclean condition where detainees have been known to linger for years because of the criminalization of migration. In many cases, to ease overcrowding, migrants are held in jails.
Many of them are refugees awaiting their hearings but are being kept in custody to ensure their appearance for decisions or to verify their identity. Only half of refugee claims are inevitably granted. These holding facilities have little or no medical infrastructure. The number of detainees has dropped somewhat recently in light of the pandemic and strong protests, but thousands remain locked up and vulnerable. A hunger strike by detainees in the centre in Laval in response to a lack of virus protection and the impossibility of distancing, received strong cross-country support including from other prisoners in Nova Scotia and the British Columbia Civil Liberties Association. Activists are now calling for the release of all immigrants and refugees from jails and immigration centers and for the suspension of immigration enforcement operations, especially around hospitals, shelters and medical clinics.
Indigenous women represent 42 percent of the female prison population. Most female prisoners are living with untreated trauma from sexual or physical abuse. Three quarters are reported to have lived with mental illness and two thirds have substance abuse disorders. Correctional investigator Ivan Singer describes a significant number of women who are suicidal or who chronically self-harm as those who should be regarded as patients. Many female inmates live communally, creating viral contagion hot spots like the one in Grand Valley for Women in Kitchener, which resulted in five positive tests in early April.
Women in jail often do not receive any personal protective equipment. Women could be released from prisons in large numbers since their offences are usually non-violent and significantly related to drug charges. Measures to relieve the pandemic in prisons such as health facilities and other preventative measures are geared to the much larger number of incarcerated men. In many cases, this leaves women detainees to be placed and treated in what amounts to administrative segregation (isolation).
Women detainees also tend to be cut off from their children and families because of increased distances to the very few federal facilities that house them. The increased isolation, their often collective living arrangements, the failure to treat, and the absence of gender accommodation result in higher risk to the virus. While mental health treatment has become a priority for many companies who want their workers to remain healthy, imprisoned women do not have access to medical treatment for serious psychological issues. This is compounded by heightened vulnerability and confinement.
Movements growing to release non-violent offenders
Louder calls for decarcerating those who can be safely released, and emergency measures to protect those remaining, are growing daily from health experts, legal authorities, doctors, pandemic experts, lawyers, at least one senator, and some New Democrats like MP Jack Harris. They call for accessible, staffed medical programs, widespread testing, free telephone communications, and the suspension of prosecutions for all non-violent charges. The corrections officers’ union is challenging Corrections Canada’s ridiculously narrow definition of “close contact” which allows up to two hours of enclosed contact with an infected inmate before it is considered crossing the line.
These calls recognize innate human rights that reflect deeply held values of a caring and sharing society. A society’s compassion and moral stature is tested by the way those least fortunate are regarded. Prime Minister Trudeau may espouse these values, but he does not always act in accordance with them in real life.
The government’s inaction is fueled by the perception, conscious or otherwise, that the health and safety of the incarcerated are a burden. It is also fueled by the social prejudices against persons in custody and the lack of political influence that those who are locked and isolated in tiny cells with little access to the outside world have.
Finally, the government’s inaction reflects a deeply rooted attachment to risk-based, reactive paradigms when proactive initiatives that are precautionary and based on harm-avoidance are needed. True, those left rotting in the cauldrons of contagion that the prison system is turning into are not “essential” to turning the wheels of industry. But it seems that the Liberal government is ignoring the reality that the virus does not discriminate, that prisons are porous to it, that we are all in this together, and that protecting the right to live is what defines us as human beings.
Harry Kopyto is a retired legal advocate who lives in Toronto. He is a member of the Courage Coalition and New Democrats for Leap. He has represented numerous imprisoned persons in lawsuits asserting their civil and human rights.