Indigenous Bar Association Calls Upon Federal, Provincial and Territorial Justice Ministers and Attorneys General to Immediately Release Low-risk Indigenous Inmates over COVID-19

Indigenous Bar Association Calls Upon Federal, Provincial and Territorial Justice Ministers and Attorneys General to Immediately Release Low-risk Indigenous Inmates over COVID-19

OTTAWA, ON – The Indigenous Bar Association in Canada ( “IBA”) calls on federal, provincial and territorial Ministers of Justice and Attorneys General to immediately release low-risk Indigenous people who are currently incarcerated. For clarity, we define low-risk as anything below dangerous offender, which is a specific designation. With respect to dangerous offenders and those who pose a significant risk upon release, supplementary COVID-19 protection plans specifically designed for incarcerated Indigenous people must be put in place immediately across Canada. The IBA calls upon all correctional facilities to ensure COVID-19 protection plans for incarcerated Indigenous people are constructed in a way that considers the legacy of colonization and mitigates further trauma.

For decades, Indigenous peoples have consistently decried the justice system’s failure to respond to the alarming and disproportionate Indigenous incarceration rates in Canada, which have steadily increased and surpassed crisis levels. In Canada, Indigenous peoples comprise thirty (30) and forty-two (42) percent of the total male and female inmates, respectively, despite the fact that Indigenous people make up only five (5) percent of Canada’s population. The Correctional Investigator of Canada stated that Indigenous incarceration rates expose “disturbing and entrenched imbalances” caused largely by poverty and racism in policing.

To date, at least one hundred and seventy (170) Canadian inmates have tested positive for COVID-19, with one death reported at the Mission Institution in British Columbia.  Additionally, the Union of Canadian Correctional Workers reported at least sixty-six (66) correctional workers who have tested positive for COVID-19.  The spread of COVID-19 in Canadian prisons is particularly troubling for Indigenous peoples who are acutely vulnerable to pandemic and the effects of COVID-19. For many Indigenous inmates, serious and chronic pre-existing health and medical conditions put them at serious and disproportionate risk of severe illness and fatality. Such conditions include diabetes, heart disease, hepatitis, HIV/AIDS, addictions, asthma and other respiratory diseases.

At this time, all inmates in Canadian correctional facilities are highly vulnerable and defenceless against the COVID-19 outbreak. This is especially concerning for Indigenous inmates. The conditions of correctional facilities can cause rapid transmission of COVID-19.  The conditions to which inmates are exposed and the urgent need for early release have been outlined by organizations such as the Canadian Association of Elizabeth Fry Societies, John Howard Society of Canada, Union of British Columbia Indian Chiefs, Canadian Prison Law Association, Amnesty International, Canadian medical and health professionals, as well as an affidavit from Dr. Aaron Orkin – physician, epidemiologist and assistant professor at the University of Toronto.

Over one-hundred (100) medical and health care professionals plead with federal and provincial governments to take immediate action. They outlined how correctional facility conditions are conducive to the spread of COVID-19, and to take steps to protect the health and safety of all inmates, correction workers, and the community at large.

The IBA calls on federal, provincial and territorial Ministers of Justice and Attorneys General to uphold rights of individuals who are incarcerated under the Charter of Rights of Freedoms, United Nations Minimum Standard Rules for Treatment of Prisoners, and the United Nations Declaration on the Rights of Indigenous Peoples. Specifically, we call for the immediate release of incarcerated Indigenous people and the following action:

• Immediately and minimally, carry-out the release of Indigenous inmates that are low-risk, non-violent, nearly eligible for parole, nearing sentence end, over 50 years of age, pregnant women, those offenders who are able to be adequately supervised in the community, and those at heightened risk due to pre-existing medical and chronic health conditions;
• The release of inmates described above to apply to federal and provincial correctional facilities, including all remand, youth and short-term detentions centres;
• For those that absolutely cannot be released, ensure:
  • Full access to medical and mental health care;
  • Full and equitable access to personal protective equipment, medical grade sanitizer and cleaning agents, personal hygiene products, and other critical supplies, with invariable availability of these supplies to all inmates and correction workers (including officers, administrators, and all other employees and contractors);
  • Access to enhanced cultural supports during heightened safety measures, ensuring any quarantine of those incarcerated is carried out in the least traumatic way, in an attempt to mitigate resurgence of traumatic experiences or intergenerational effects of the legacy of colonialism;
• In accordance with domestic and international laws and conventions, ensure that institutions do not use isolation methods that are akin to segregation punishment for infected inmates, specifically:
  • Individuals should not serve longer than 15 days in segregation, isolation, solitary confinement, medical removal or administrative removal;
  • Those who are segregated within the 15-day limit are given access to daily use of shower, telephone, and recreational facilities;
  • Those who are segregated are given daily access to mental health professionals in attempt to mitigate the lasting damage done by isolation;
• Implement the short and long-term measures identified recently by the Union of British Columbia Indian Chiefs in their open letter dated March 24, 2020; and
• Correctional Services Canada and all provincial correctional jurisdictions implement the recommendations of the Correctional Investigator of Canada, Dr. Ivan Zinger and take notice of specific requests by Indigenous organizations and communities.

The IBA is a national non-profit association comprised of Indigenous lawyers (practicing and non-practicing), legal academics and scholars, articling clerks and law students, including graduate and post-graduate law students. Our mandate is to promote the advancement of legal and social justice for Indigenous peoples in Canada and the reform of laws and policies affecting Indigenous peoples.

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For more information, please contact IBA President Drew Lafond (dlafond@indigenousbar.ca) or visit www.indigenousbar.ca.

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