More than a dozen defence lawyers are urgently calling on the territory to temporarily release as many inmates as possible from NWT jails amid growing concerns over COVID-19 and its potentially “catastrophic” impact on vulnerable prisoners.
Citing “grave concerns” about the health and safety of inmates living in close quarters in the territory’s three jails, located in Yellowknife, Hay River and Fort Smith, lawyer Kate Oja sent an email to top-ranking staff at each facility Monday afternoon, urging them to grant temporary absences for inmates on humanitarian grounds.
“Our clients are at serious risk of rapid transmission and exposure to the virus, should it make its way into the institutions, and do not have the freedom to protect themselves,” wrote Oja. “An outbreak of COVID-19 in any one of the territory’s jails could be catastrophic.”
Including Oja, the letter is signed by 15 NWT defence lawyers.
Cc'd in the email are Justice Minister Caroline Wawzonek, NWT RCMP Commanding Officer Jamie Zettler and the Public Prosecution Service of Canada, an office of the Attorney General of Canada that assigns prosecutors to cases.
The territory confirmed its first case of COVID-19 over the weekend.
Inmates can be granted temporary absences from correctional facilities for a number of reasons, including medical purposes and for urgent family matters.
Defence lawyers want the territorial government to act quickly to safeguard the susceptible population.
They’re calling on facilities to fast-track temporary absence applications by identifying inmates who are most at risk, factoring in age and underlying medical issues, and process their requests first.
The email recommends the granting of temporary absences to inmates serving intermediate sentences — usually on weekends — so they aren't required to enter jail weekly.
The correspondence calls for a “liberal” application of the criteria for temporary absences, enabling the “greatest number of releases possible.”
Practising social distancing — the territory’s chief medical officer recommends residents stay at least two metres away from each other in public — is rarely an option for inmates, wrote Oja.
“For inmates in custody, often housed two or three to a cell, sharing toilet and bathing facilities, as well as kitchen and dining areas, these directives are not an option,” she wrote.
She referred to a call from the Canadian Civil Liberties Association to "use existing legal tools to reduce the prison population" amid the COVID-19 pandemic.
The association is pushing for “humane” releases based on conditional, compassionate and discretionary measures to avoid correctional facilities becoming “breeding grounds for a virus outbreak.”
“The frightening – and potentially deadly – prospect of widespread transmission of COVID-19 within jails already looms elsewhere in Canada, and the U.S,” states Monday’s email to NWT jail staff.
Asked about public safety issues related to the release of certain inmates, Peter Harte, one of the lawyers backing the urgent plea, said when prisoners are housed in a facility in a bid to keep the public safe, they’re afforded the fundamental right of being kept safe themselves. If those rights are upheld, then temporary absences, based on humanitarian grounds, should be granted, in this case, not only for the prisoner, but for their family and the public at large.
A jail guard recently tested positive for COVID-19 at the Toronto South Detention Centre — a facility that houses up to 1,650 inmates — and prisons and jails south of the border have moved to release inmates due to COVID-19 concerns.
The same should be done here, for the safety of inmates, their families and the public at large, the lawyers argue.
Harte noted that the territory’s border is closed; stores are shut down and people are being asked to physically distance themselves from one another, yet there’s still 100-plus inmates living in close proximity to one another in Yellowknife alone — that’s a problem, he said.
If the GNWT is implementing such stringent measures, how is placing so many people in close quarters safe, he asks.
“We’re dealing with a group of people who can’t practise self-isolation; who can only practise limited social distancing — our thinking is that we need to reduce (the number of people in jails) as much, and as quickly as we can,” said Harte.
In the email sent to Corrections Service staff Monday, it’s noted that the vast majority of inmates housed in NWT jails are Indigenous — people impacted by inter-generational trauma, driven by the effects of the residential school system and colonialism, and who often didn't have access to health care, leaving many with compromised health.
“The problem of over-representation of Indigenous people in Canadian institutions has been recognized by the Supreme Court of Canada as one that must be remedied. In the context of the COVID-19 pandemic, we fear that this over-representation will mean a disproportionate exposure and vulnerability to the virus,” states the letter.
Defence lawyers say time is of the essence — inmates will return home to small NWT communities. That’s why it’s crucial they leave now, “before the virus enters the jails and puts them at risk of infection, and transmission to the communities.”
Need for transparency
Lawyers backing the plea are also calling for transparency. They want correctional facilities to “immediately make each institution’s plan for prevention, testing and outbreak management and treatment for COVID-19 public.”
A Department of Justice spokesperson, refusing to provide specifics on contingency plans in the event of a COVID-19 outbreak, didn't address why details were not being released to the public when asked by NNSL Media last week.
The department said it was beefing up health safety measures while adhering to self-isolation protocol for staff who had recently travelled, but declined to say what strategies were in place in the event of a facility outbreak.
Harte called the tight-lipped response “perplexing.”
“The administration of justice fundamentally depends on the certainty that inmates are going to be properly taken care of,” he said.
According to Harte, Oja, fuelled by concern over the safety of inmates in NWT jails, sent an email to jail staff on March 19 — two days before the territory’s first COVID-19 case was announced — asking for clarification of COVID-19 protocol and plans.
So far, there’s been no response, he said.
The majority of inmates currently in NWT jails are in remand custody. They haven't been convicted of a crime.