March 17, 2020
Hon. Sylvia Jones
Ministry of the Solicitor General
18th Floor, George Drew Building
25 Grosvenor Street
Toronto, Ontario M7A 1Y6
Dear Solicitor General Jones:
RE: COVID-19 – Corrections and human rights
I hope you and your family are keeping safe in light of ongoing challenges with COVID-19.
As you may know, the Ontario Human Rights Commission recently released a policy statement on maintaining human rights during the COVID-19 pandemic. I am writing to you today on behalf of the OHRC to provide advice on steps the government can take to apply a human rights lens to reducing transmission of COVID-19 in Ontario’s correctional facilities and detention centres.
The OHRC commends you for taking steps to allow intermittent prisoners to remain in the community. The OHRC recognizes that the Ministry of Solicitor General (SOLGEN) is working hard to address this evolving situation, and we have appreciated engaging with SOLGEN staff and leadership, including Assistant Deputy Minister Suzanne McGurn, on this matter.
In light of this engagement, the OHRC asks the government to take further measures to help reduce the transmission of COVID-19, as have been urgently recommended by prison experts, including Penal Reform International (PRI) and the Vera Institute for Justice, and have been taken in jurisdictions comparable to Ontario. These steps include:
- Enhancing transparency and communication
- Supporting family contact
- Reducing overcrowding
- Collecting data.
We encourage SOLGEN to take these steps, which adopt a public health-centred approach rather than a risk-based approach to managing COVID-19, including reducing over-crowding in facilities.
Transparency and communication
Adopting a public health-centred approach would include being transparent about existing emergency preparedness plans and ensuring that these plans are reviewed and approved by public health officials before being finalized. In addition, SOLGEN should ensure relevant and up-to-date public health information and guidance on proper protocols is widely distributed to prisoners and staff. One option is to have public health authorities deliver relevant information to staff and prisoners to ensure that the information is seen as up-to-date and independent. SOLGEN should also house prisoners with suspected and confirmed cases of COVID-19 in isolated units, and proactively house vulnerable prisoners or people at heightened risk of COVID-19-related consequences in separate units.
While restrictions on face-to-face or contact visits for people in detention can be legitimate to prevent COVID-19 outbreaks, PRI notes that authorities doing so need a comprehensive and transparent decision-making policy. In case of restrictions, these need to be proportionate to the goal of preventing (or responding to) an outbreak. Contact visits must be replaced by increased means and opportunities for contacting the outside world (for example, by phone, emails or video calls).
Allowing free telephone calls into the community and calls to cellular phones will allow for continued family contact, especially if in-person visits are suspended. Prisoners will want to connect with their families regularly to ensure their family’s safety and update them on their own circumstances. This would help SOLGEN to accommodate based on the Human Rights Code ground of family status.
Consistent with public health advice to engage in social distancing, and given the likely disruption of criminal proceedings, SOLGEN should make all reasonable efforts to reduce overcrowding within institutions by creatively using all existing discretionary release provisions within the Ministry of Correctional Services Act including work release, temporary absences, compassionate releases and medical releases.
Many other jurisdictions, including Cuyahoga County and Los Angeles County in the United States, have already taken measures to release or reduce sentences of prisoners who do not pose a risk to the public. Prisons in the United Kingdom are considering similar action. In light of this, SOLGEN should also look at releasing sentenced individuals who do not pose a risk to the public, including people with fewer than 60 days left in their sentence, and people convicted of minor and non-violent offences (such as drug-related offences). Compassionate releases should also be issued for vulnerable prisoners including elderly people, pregnant women, people with compromised immunity, people with mental health disabilities, etc. The expansion of probation resources in the community, including through redeploying correctional officers (by telephone), would also be helpful in reducing overcrowding. Prisoners should be provided with transportation to return home if they require it, especially to remote communities.
SOLGEN should also work with the federal government to release immigrant detainees who do not pose a risk to the public.
Finally, experts have universally recognized the need for standardized data collection, particularly at this time. SOLGEN should take steps to standardize data collection related to COVID-19 cases, including associated use of lock downs, segregation, isolation, etc., all disaggregated by Human Rights Code grounds.
The OHRC appreciates the ever-evolving circumstances surrounding COVID-19 and understands that the government is working to address issues on many fronts. However, as has been noted by many experts, the spread of COVID-19 in Ontario’s correctional facilities could prove catastrophic. Taking the recommended steps as soon as possible can help limit the spread of the virus while maintaining Ontario’s human rights obligations.
Renu Mandhane, B.A., J.D., LL.M.
cc: Hon. Doug Downey, Attorney General
Hon. Christine Elliot, Minister of Health
Irwin Glasberg, Deputy Attorney General (Acting), Attorney General
Melanie Fraser, Associate Deputy Minister, Ministry of Health
Suzanne McGurn, Assistant Deputy Minister – Institutional Services,
Ministry of the Solicitor General