Putting corrections to the test

Peter Kirby LL.B

It is time to make testing mandatory in jails and correctional centres.
With the announcement that the federal government has purchased almost eight million rapid testing kits from the United States (approved for use by Health Canada), and with premier Ford recognizing that we are in a second wave of the pandemic, it is time to institute mandatory testing within correctional institutions and ensure the safety of staff and inmates alike.
We know that rapid testing, where results are known in as little as an hour, works, and can be administered at jails and correctional centres. New Gold has instituted a rapid, PCR testing regime – the same type of regime used throughout Ontario. However, with rapid testing there is no need to send swabs to a lab. Testing kits produce results on-site. Manitoba has deployed similar testing units to remote communities and British Columbia is using saliva-based tests for school children.
To date, corrections has been content with screening, hand washing and other hygienic measures, isolation of newly admitted inmates and PPE.
In June, when two cases of inmates with the virus were detected at the Kenora Jail – the focus of my concern – the acting medical officer of health counselled voluntary testing. However, this advice is outdated, not only because of the development of rapid tests and an increase in testing capacity, but also because, as Premier Ford has recognized, Ontario is in the second wave of the pandemic.
The daily case count on September 28 was at its highest since the pandemic was declared; it is time to take stronger measures.
Like nursing homes, homeless shelters and schools, jails and correctional centres are congregate settings, where the risk of spread of the virus is high. As the Solicitor General’s guidance on COVID-19, “correctional institutions are congregate settings with increased risk for disease spread once it has been introduced” and that “preventing introduction of disease at the point of admission is key.”
The Ministry of Health and Long Term Care (MOHLTC) recognizes that “asymptomatic individuals from certain high risk populations may be considered for testing”, including “workers and residents of high risk settings such as long-term care homes, visitors of long-term care homes, workers and residents of homeless shelters and other congregate settings.”
MOHLTC Testing Guidance stipulates “that in the event on outbreak of COVID-19 is declared in the home, all staff in the entire home AND all residents in the home should be tested.”
Though the Guidance qualifies the mandatory language with the statement that, “local public health may also, based on a risk assessment, determine…whether any of the above-mentioned individuals do not require testing”, the Ministry issued a directive all staff in Long Term Care Homes be tested at least twice a month.
The same rule – at a minimum – must be applied to corrections.
The whole of the justice system, including corrections, has been working to reduce the numbers inside; reducing the number of inmates through TAP releases, reducing the number of people coming into the system through police releasing those arrested and not detaining them for bail hearings, through courts granting bail and opting for community-based sentences instead of carceral ones. All of these strategies need to be hard-wired into the whole justice system.
The Solicitor General has done an admirable job in reducing the numbers inside. As of May 5, 2020, occupancy was down 31 per cent; from 8500 to 5600 inmates.
Prisoners enter the system with compromised health. In April 2020, in a Bail Review Application seeking the release of a prisoner, epidemiologist Dr. Aaron Orkin offered the following opinion on the COVID-19 threat to inmates:
“The population health status of people experiencing incarceration is substantially worse than the rest of the public. This means that people experiencing incarceration have higher rates of chronic disease including cardiorespiratory disease, mental health challenges and addiction. This also means that people experiencing incarceration have a higher chance of intensive-care admission or death if they get COVID-19.”
As prisoners generally do not have individual cells, social distancing is extremely difficult: once inside an institution, the virus can spread quickly. Dr Orkin compares the threat of rapid spread in correctional settings to the spread experienced by cruise ships.
Furthermore, even if corrections is able to limit the number of prisoners and isolate new arrivals for 14 days, as is the protocol, it is the staff and others who enter, leave and re-enter the system shift after shift, who pose the real threat of infecting inmates and staff.
The coming of the second wave has increased the risk of staff being infected in the community and bringing it inside the workplace.
Ontario’s return to stricter surveillance in LTC’s – limiting visitors – is an indication of the seriousness of the threat to congregate settings.
Testing of staff and residents in, and visitors to, nursing homes will allow greater opportunity for family and friends to visit. The same logic applies in jails and correctional centres.
Testing elevates safety for all.
The pandemic is an opportunity to make permanent the reductions in staff-inmate ratios which has resulted from releasing prisoners and reducing the number of new admissions.
With correctional settings at or below capacity, corrections has the opportunity to provide more intense rehabilitative services – which understaffing and overcrowding made impossible pre-COVID – and thereby reduce the rate of re-offending.
Corrections told the Auditor-General that 85 per cent occupancy is the optimal rate. Overcrowding creates poor living conditions and poor opportunities for rehabilitation, creates tensions between prisoners and between staff and prisoners which will sometimes result in violence.
The overcrowding and tensions within the system result in staff booking off sick and consequent staff shortage lockdowns which have plagued the system and made life inside more difficult for staff and inmates alike.
Reducing the numbers inside by 31 per cent would appear to go a long way to eliminating staff shortage lockdowns and thereby improving staff and inmate safety and well-being.
Making the reduction permanent allows resources to be spent on community supervision, like parole and Temporary Absence Passes – the latter mechanism featuring prominently in the Solicitor General’s efforts to reduce the number of inmates.
A reduced occupancy rate also recognizes that pre-COVID, 70 per cent or more of inmates were on remand, awaiting trial or plea and sentence.
The Mandela Rules counsel the world that remand prisoners are to be treated as presumed innocent and permitted greater freedom than sentenced inmates: they should not be subject to crowded and unhealthy facilities and lockdowns caused by staff shortages.
In addition, the effect of a permanent reduction in numbers helps Ontario reduce the over-incarceration of Indigenous inmates (and other racialized groups). Ninety per cent of the inmates at the Kenora Jail – my immediate concern – are Indigenous. Switching penal and correctional resources to community supervision and community restorative justice programs – like the justice hub which Mr. Rickford announced is coming to Kenora – also creates space for the growth of Indigenous justice systems.
Such a change in correctional philosophy answers the calls of the Truth and Reconciliation Commission and helps embed the self-government provisions of The United nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
Finally, changing from a bricks and mortar approach allows Ontario to invest in community resources, prioritizing the hiring of probation and parole officers, TAP and Supervised Bail Program supervisors and funding other justice workers and programs.
Employing the same imagination and will which has significantly reduced the numbers inside, Ontario can immediately introduce rapid resting and use the pandemic as a unique opportunity to revitalize the correctional system.

Peter Kirby, LL.B.