OHRC statement calling on Ontario’s justice sector to fight COVID-19 by keeping prison custody numbers low

 

On March 17, 2020, the Ontario government first declared a state of emergency because of the COVID-19 pandemic. The province announced that it would use every power possible to try and protect the health and safety of the individuals and families in Ontario.

That same day, the Ontario Human Rights Commission (OHRC) wrote to the government sounding the alarm about the potential for COVID-19 outbreaks in Ontario’s correctional institutions – already burdened by extreme overcrowding – and the grave risk this posed for people both inside and outside these facilities. The OHRC and many others appealed to Ontario to do everything possible to decrease the number of people in custody.

Ontario – alongside partners from across the justice sector – acted. Thanks to the collective efforts of police, courts, correctional staff and the government, within weeks the number of people in Ontario’s prisons dropped by about 30%.

However, the custody numbers have been rising again for months. As Ontario is facing the most serious stage of the pandemic so far, custody numbers have at times nearly returned to pre-pandemic levels.

To keep Ontario’s people and communities safe, it is critical to once again make sure the custody numbers come down and stay down.

Achieving this requires a unified response from every actor in the justice sector. The OHRC has consulted widely with various correctional and justice stakeholders to identify concrete actions that could help. We are not suggesting that tremendous efforts are not already being made but, instead, acknowledging the complexity and challenge of managing COVID-19 in congregate settings like correctional institutions.

 

High prison populations raise the same COVID-19 risks today as they did last year

Despite the important, life-saving efforts made at the outset of the pandemic, the number of people in Ontario’s prisons has not stayed down. At times, these numbers have reached a near-return to pre-pandemic levels of overcrowding that many, including the Auditor General, the OHRC and front-line correctional workers had identified as a critical issue, even without the risks posed by the pandemic.

As we find ourselves facing the grimmest chapter of the pandemic to date, Ontario’s prisons have again experienced crowding, putting front-line correctional workers, prisoners, and our communities at risk.

 

Crowded prisons create a perfect storm of COVID-19 spread

As facilities become more crowded both the severity of conditions prisoners experience, and the stress on correctional staff working on the front line, escalates. Even with major precautionary efforts, containing COVID-19 in congregate settings like correctional institutions is complex and challenging – and exponentially so when these facilities are crowded.

The most obvious and basic risk associated with high custody numbers is that when there is an outbreak – and there have been more than 16 in Ontario’s correctional institutions since December – a crowded facility increases transmission and the number of people who are exposed. This threat is even more pronounced given the new and increasingly contagious variants of COVID-19 that are emerging.

In crowded facilities, it is impossible to establish safe physical distancing protocols, or to humanely quarantine prisoners who may have COVID-19. Also, the measures that are put in place can result in particularly severe conditions of confinement. Many prisoners are experiencing lockdowns or segregation-like placements. Throughout the pandemic, programming and services have either been severely restricted or cut entirely. All of these restrictions occur within the context of a prison population that is unable to meet in-person with their loved ones, due to the temporary elimination of such visits.

 

Preventing COVID-19 in prisons protects the entire community

The risk posed by high custody numbers is not confined to prisoners and front-line correctional workers, but will inevitably spill into the broader community giving rise to community safety concerns.

While public health units across Ontario have begun providing vaccines to staff and prisoners – a hugely important measure – waiting for, and relying on, vaccine rollout will not solve the problem. Prison populations in Ontario rotate quickly – the average time in custody is about seven days – making comprehensive vaccination all but impossible.

Correctional systems are a powerful centralizing and diffusing vector of disease: they collect people from many different communities, contain them in a high exposure-risk environment, and then quickly release them back into those same communities. Front-line correctional staff go home to their families at the end of their shifts. This creates significant risk of COVID-19 spread into communities.

Importantly, these risks are borne most heavily by Human Rights Code-protected groups that are disproportionately policed and imprisoned, such as Black and Indigenous persons. This means that prisoners exposed to COVID-19 in corrections returning home could exacerbate the spread of COVID-19 in communities that are already particularly hard hit by the pandemic.

Many prisoners also experience poverty and homelessness. The overlap between the prison and shelter population means there is a risk that someone released from a prison could bring COVID-19 to a shelter community or vice versa – elevating risk for these already extremely vulnerable and marginalized populations, which again are disproportionately comprised of Code-protected groups including people with disabilities, racialized and Indigenous peoples, women (especially single mothers and older women), and recent immigrants or newcomers.

Also, in a crowded facility, COVID-19 can rapidly spread to hundreds of people who are particularly vulnerable and will need hospital care, creating the potential to completely overwhelm local health care resources – which are already beyond their limits. This risk is magnified because a disproportionate number of prisoners are people with both physical and mental health disabilities and addictions, who experience poorer health status than the general public and have a higher chance of intensive-care admission or death if they get COVID-19.

 

Reducing prison populations is consistent with keeping communities safe

It is important to recognize that the vast majority of people held in Ontario’s correctional facilities are on remand, and that data does not substantiate fears that releasing the remand population will pose a threat to community safety.

Several studies in the United States have found that reducing the remand population did not increase criminal activity. In many cases, criminal activity even decreased.[i] For example, in recent years, New Jersey, Kentucky, Yakima County, Washington DC and Philadelphia all made efforts to use risk-assessment tools to reduce the remand population. While the remand or pre-trial population decreased significantly in these jurisdictions, criminal rates remained unchanged, or even decreased.

The remand population consists of people who are awaiting bail or trial, and represents more than 70% of who is held in Ontario’s correctional facilities. Focusing efforts on reducing the remand population is an effective means of getting the custody numbers down without compromising community safety.

Effectively addressing the pandemic requires that policy makers assess and weigh risk in relation to specific demographics, populations and areas. In the justice sector, the evidence is clear that the high risk of COVID-19 spread within crowded institutions and throughout the community vastly outweighs the risk of diversion and release from custody. All actors in the justice sector must work to make sure custodial policies align with the relative risk profiles.

 

All branches of the justice sector must work to keep custody numbers low and ensure community safety

To keep Ontario’s people and communities safe, it is now more important than at any other point in the pandemic to make sure the number of people in custody in Ontario’s correctional facilities stays down. Every admission prevented and every person discharged is an opportunity to flatten the curve.

Achieving this – as was done at the pandemic’s outset – requires a unified response from every actor in the justice sector: police, courts, corrections and the government.

The 12 concrete actions identified below to maintain low custody numbers and reduce the risk of COVID-19 spread in correctional institutions are achievable, can be acted on quickly, maximize the use of existing programs and diversion powers, will free up the courts, and aim to use taxpayer money more efficiently.

 

Concrete actions to keep institutional custody numbers down

The OHRC identified the following actions by consulting widely with various correctional and justice stakeholders.

 

Promoting police diversion efforts

1. The Ministry of the Solicitor General (SOLGEN) should issue weekly All Chiefs Bulletins providing police services with updated information about institutional capacity numbers and flagging particular regions or institutions where police efforts to divert people from custody are more urgently needed.

 

2. All Ontario police boards and chiefs of police should issue updates informing officers of high institutional custody numbers and directing them to:
   
   1. Use their discretion to issue warnings or cautions and not charge for alleged minor and non-violent offences, and particularly alleged minor and non-violent administration of justice offences such as bail condition breaches
   2. Maximize referrals to pre-charge diversion programs, which offer an alternative to charges and formal court processes for alleged minor and non-violent offences
   3. Consider the elevated COVID-19 risk caused by high institutional custody numbers when determining whether someone should be held in custody before a bail hearing.

 

3. Police officers should be provided with easy-to-access, step-by-step guidance outlining all diversion options that should be considered before detention in a correctional institution. These resources should be specific to each service and reference local community programs and contacts. Police services should consider dedicating specific members/teams to focus on identifying and liaising with available community programs to make sure these options are maximized and used as efficiently as possible as an alternative before institutional custody.

 

Clear direction and support from the Ministry of the Attorney General (MAG)

4. MAG should update the August 2020 COVID-19 section of its Crown Prosecution Manual, section “D. 38: COVID-19 Recovery” to:
   
   1. Reflect the current state of the pandemic
   2. Underscore the seriousness of the risk posed by high institutional custody numbers for front-line corrections, prisoners, the healthcare system, and Ontario’s communities
   3. Highlight that the lower institutional custody numbers achieved at the outset of the pandemic have not been maintained and that renewed efforts to keep numbers low are urgently needed
   4. Direct Crowns to exercise their discretion in light of the exceptional circumstances created by the pandemic to pursue and expeditiously support non-custodial options wherever possible
   5. Recommend that Crowns not pursue cash sureties given the disparate impact this requirement has on people experiencing poverty
   6. Adopt the considerations and guidance in the COVID 19: Bail and Resolution Principles memorandum distributed to federal prosecutors.

 

5. MAG should issue updates and directives to Crowns stressing the need for diversion based on alerts from SOLGEN and local medical officers of health on any institutions or regions where high custody numbers pose increased risk.

 

6. MAG should provide Crowns with updated information about and direction to maximize the use of all existing MAG programs meant to defer people from institutional custody and reduce court delays.

 

7. MAG should look for all ways to increase access to its existing programs, such as the Direct Accountability Program and Bail Verification Supervision Program, including by:
   
   1. Increasing funding, particularly to increase the availability of bail beds for people who lack housing options and might otherwise be detained
   2. Expanding the scope for eligibility for existing programs
   3. Reviewing processes wherever possible to increase front-end access, for example by allowing or promoting referrals directly from police in addition to those from Crowns and courts.

 

 

Ministry of the Solicitor General (SOLGEN)

8. SOLGEN should determine, for each institution, target capacity levels that would best enable COVID-19 precaution measures to be implemented. These levels should be established using existing Ministry of Health and Public Health Ontario guidelines; consultation with the Ministry of Health, Public Health Ontario or local medical officers of health where possible; and reflect the current state of the pandemic, risk posed by emerging COVID-19 variants, and the capacity of both SOLGEN and community health-care resources to provide care in the event of an outbreak.

 

9. SOLGEN’s “Response to COVID-19 Information Note,” a bulletin describing measures being taken to manage COVID-19 in corrections, which is distributed to Crown counsel and relied on during court proceedings, should include a highlighted alert at the very beginning with:
   
   1. An explanation that, while SOLGEN is continuing to take all steps to prevent transmission, high institutional capacity numbers greatly increases the difficulty of managing COVID-19 and the risk of an outbreak, putting front-line correctional workers, prisoners, communities, and healthcare workers at risk
   2. A clear indicator of the current occupancy rate and how this compares to target capacity levels for ensuring COVID-19 precaution measures can be implemented, broken down by institution and region
   3. A chart plotting the full progression of institutional capacity numbers from before the pandemic in March 2020 to the present.

 

This should not be interpreted as an indication that SOLGEN is not making best efforts to mitigate against COVID-19 outbreaks but, instead, as an acknowledgement of  the complexity and challenge of managing COVID-19 in congregate settings like correctional institutions.

 

10. SOLGEN should continue its efforts to maintain temporary absence passes for people serving intermittent sentences.

 

11. SOLGEN should explore opportunities to expand access to temporary absence passes, while still protecting community safety. This should include making sure the eligibility criteria and risk-assessment screening are evidence-based and the option of conducting centralized reviews.

 

12. SOLGEN should continue to look for all options to use medical or compassionate releases for any prisoners who are particularly vulnerable in light of COVID-19, including elderly people, pregnant women, people with compromised immunity, people with mental health disabilities, and people who may need to provide care to children or other family members.