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Urgent open letter re health, safety and human rights of people in prison during COVID-19 crisis

March 15, 2020 

Minister of Justice Mark Furey, Nova Scotia Department of Justice, markfurey.mla@eastlink.ca

Minister of Health and Wellness Randy Delorey, Nova Scotia Department of Health and Wellness, Health.Minister@novascotia.ca 

Mr. John Scoville, Executive Director, Corrections, John.Scoville@novascotia.ca 

Mr. Colin Stevenson, NSHA Vice-President – Health Services, Quality and System Performance, Colin.Stevenson@nshealth.ca 

Ms. Samantha Hodder NSHA Director – Mental Health and Addictions Samantha.Hodder@nshealth.ca

Dear Ministers Furey and Delorey, Mr. Scoville, Mr. Stevenson & Ms. Hodder: 

RE: Actions urgently required to ensure health, safety and human rights of incarcerated populations as well as public safety during COVID-19 crisis 

We (East Coast Prison Justice Society, Elizabeth Fry Societies – Halifax Mainland and Cape Breton, NS Prisoners’ Health Coalition, and Women’s Wellness Within) are writing on an urgent basis. 

Provincial corrections and the NSHA — responsible, respectively, for the safety and health of prisoners as well as public safety — are well aware of the escalating crisis of COVID-19 and the importance of immediate measures to protect imprisoned populations (as well as staff working in provincial jails). 

We concur with the recent statement of Nicole Austin-Hillery of Human Rights Watch: 

“All governments . . . have an obligation to protect the rights of people deprived of their liberty, including the right to health, especially when custody heightens the risks they face. . . Officials . . . should take immediate steps to prevent transmission of the coronavirus and consider finding alternatives to custody for those who are at high risk should they become infected.”

Second, we endorse recent statements of the Ontario Human Rights Commission, on ensuring that actions aimed at mitigating risk of COVID-19 spread do not disproportionately burden vulnerable populations in an arbitrary and discriminatory manner. As provincial jails disproportionately house “individuals protected from discrimination under the Code, including Indigenous and racialized people, people with disabilities and addictions . . . and other vulnerable groups,” it is essential that government’s mitigation plans “adopt a Public Health and human rights-focused approach to addressing evidence-based risks associated with COVID-19 in government- run facilities.” As the Ontario HRC further points out: 

“Individuals in these facilities also have the right to be free from discrimination including harassment related to COVID-19 in the provision of services on grounds under the Code. Under the Charter, these individuals have a right to privacy, liberty and security of the person and the right to protection against discrimination, arbitrary detention, and cruel and inhuman treatment, subject to reasonable limits.”

Given the importance of ensuring that rights-respecting measures are adopted to protect those in state custody at this time, we ask that you publicly indicate within a 48 hour period how you will exercise your joint responsibilities to respect human rights while assuring prisoner health and safety. Specifically, we seek responses on whether Nova Scotia will commit to the following calls for action (and if so, the timelines for action):

1 – As Ontario has done, grant all intermittent inmates temporary absence from custody until this public health response is no longer required;

2 – Using mechanisms such as temporary absences, move persons at heightened risk of complications from COVID-19 out of facilities into appropriate community settings immediately. Elizabeth Fry Societies Mainland and Cape Breton have increased capacity for this purpose; alternative forms of community release and supervision may be required in some cases, including release to private homes, to ensure the life and health of the most vulnerable prisoners is protected. This includes all persons over age 55 (arguably, the comparable age to 65 in prisoner populations is 50), those with compromised immunity, those with respiratory conditions and other chronic health conditions rendering them more vulnerable to complications from COVID-19, and pregnant people (who are likely to be immune-compromised); 

3 – Using mechanisms such as temporary absences, release from custody mothers and other primary support parents. This is required in order to ease the serious psychological stress of separation during a pandemic crisis, and to ensure safe supervision of dependent children who without a primary support parent may be in precarious living situations; 

4 – Ensure that health segregation is not used as an alternative to community placement per #1-2, and that no one is placed for any duration in the most oppressive of health segregation cells – in CNSCF, the windowless pressurized cell apparently intended for immunosuppressed or contagious prisoners

5 – Ensure that risk mitigation strategies are evidence-based and do not unduly restrict prisoners’ liberties – this means avoiding reliance on prolonged or indeterminate lockdowns / solitary confinement. Isolation / solitary confinement for any duration has been recognized to have profound, potentially permanent effects on the psychological and social functioning of persons with pre-existing mental health conditions. For other prisoners, prolonged and indeterminate isolation has been shown to have grievous effects on psychological and physical health and is recognized by Canadian appellate courts as contrary to the Charter; 

6 – Ensure that prisoners have regular access to phone communications with lawyers and family – e.g., through cost-free use of additional cordless phones. The recent statement of correctional responses to COVID-19, permitting two free phone calls per week, is a start, but two calls are inadequate during a time of public health crisis, during which concerns of and about family members are likely to be intensified, as is the pressure to use phones for communications with lawyers; 

7 – Ensure that prisoners have regular access to programming and other activities, modified as required by evidence-based public health considerations. We are concerned about the recent statement of correctional responses to COVID-19, placing a bar on visits from volunteer organizations. The role of organizations such as Elizabeth Fry Societies, Women’s Wellness Within, John Howard and others includes maintaining routine and enabling prisoners to focus on positive goals and relationships. This is critically important at this time of heightened stress. Justice and Corrections should work to identify ways of mitigating risk while maintaining volunteer access and programming (albeit potentially in altered forms) as far as possible. 

8 – More generally, identify and implement best practices to ensure that the highest public health standards are met in a manner that is least restrictive of residual liberties. This must include, at a minimum, increased rigour and frequency of sanitation measures. These responsibilities should not be delegated to prisoners but instead should be carried out by trained and adequately protected staff. At the same time, prisoners must have access to effective hygiene and sanitation products without cost; 

9 – Finally, make detailed action plans for prevention and treatment of COVID-19 among incarcerated populations available to the public in a transparent and accessible manner. 

We realize that a request for a response to these action items within 48 hours, on matters requiring coordination among multiple branches of government at the highest levels, would in ordinary circumstances be unreasonable. In the present context, it is the only alternative consistent with our organizations’ mandates to work with and for imprisoned populations to ensure their rights and safety are protected. 

If we do not hear from you within the time period noted, we will intensify our joint efforts to spur further public attention to these matters. However, as you know, with each day the challenge of taking an appropriate response escalates as do the consequences for the most vulnerable. 

We will be issuing a separate statement calling on the Minister of Justice, police, courts, Public Prosecution Service and other relevant justice system actors to coordinate efforts to expedite bail hearings and revisit court-ordered pre-trial custody, and otherwise make urgent efforts to prevent new admissions to jail and reduce the numbers of people currently incarcerated. This is required in light of the pressures facing provincial jails and the heightened individual and public health consequences of incarceration at this time. 

Again, we appreciate that these are trying times. As you know, it is in such times that our elected leaders and civil servants must do their utmost to safeguard human rights and protect the well being of those most vulnerable to discrimination and attendant disproportionate burdening. 

We look forward to your timely response. 

Yours, 

Sheila Wildeman

Sheila Wildeman, Co-Vice Chair, East Coast Prison Justice Society
for the Boards of East Coast Prison Justice Society, Elizabeth Fry Societies (NS Mainland and Cape Breton), NS Prisoners’ Health Coalition, Women’s Wellness Within

cc.: Deputy Minister of Justice, Karen Hudson; Deputy Minister of Health and Wellness, Dr. Kevin Orrell; Chief Medical Officer of Health, Dr. Robert Strang; Director, Nova Scotia Correctional Services, Mr. Chris Collette; Superintendent, Central Nova Scotia Correctional Facility, Mr. Adam Smith; Superintendent, CNSCF East Unit, Eileen Collette

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