Simon Says

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Prisons’ responses to COVID-19 may breach Charter rights

Correctional authorities are responsible for the health and safety of inmates. This is a statutory duty of Correctional Service Canada (for federal inmates) and the Ministry of Corrections (for provincial inmates).

Outbreaks in correctional institutions across Canada raise the issue of whether institutions are doing enough to protect inmates, as well as what can be done when institutions fail to protect prisoners.

In Latham v Canada, 2020 FC 670, at paras 59-72, the Federal Court confirmed that the failure to provide adequate health care or the failure to protect the health and safety of inmates could breach prisoners’ rights under section 7 of the Charter. Section 7 protects the right to life, liberty, and security of person.

The court in Latham pointed out that a breach will only exist under certain circumstances. The mere fact of a prisoner being held in a correctional facility during the pandemic and being vulnerable to COVID-19 exposure is insufficient (on its own) to establish a Charter breach. The court outlined that it needs more evidence to establish a Charter breach, such as information about the institution’s health and safety measures, administrative initiatives, and living arrangements as well as the prisoner’s medical records, behavioral history, etc.

So while institutions’ insufficient responses to COVID-19 may be capable of constituting a Charter breach, proving such a breach can be challenging. Establishing a Charter breach requires presenting significant evidence about the institution’s response and the prisoner’s background. Not all of this is information that a prisoner (or the prisoner’s counsel) will have easy access to. Getting such information can be challenging and time consuming.

The Federal Court outlined that without sufficient evidence to establish a Charter breach, it is up to the Parole Board of Canada and Correctional Service Canada to develop mechanisms to protect prisoners during the pandemic. Unfortunately, there are limited mechanisms in place to secure the release of prisoners during COVID-19, and the Board and CSC are not lightly using these mechanisms to help decarcerate prisons.

Therefore, both Charter remedies and/or conditional release might be very difficult to get (or even out of reach) for many prisoners whose health is not being adequately protected.

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