Jails emptied, but refilled as 2nd wave hit
After praise for early response, Ontario prisons backtracked, leading to at least 12 outbreaks
“It’s just a matter of time before we are all f---ed.”
When Ashley Woods read the last line of the handwritten letter from her boyfriend at the Maplehurst Correctional Complex, she felt sick to her stomach. In the preceding lines, he told her they were in a lockdown and couldn’t make calls, unless it was to a lawyer, or shower.
“This is no joke. Every other day it seems like someone is testing positive,” he wrote, urging her to contact his lawyer and try to get him bail.
On Jan. 25, the day his letter was written, the Milton jail had 98 confirmed COVID-19 cases among inmates, a number that would soon rise to 179 by the count of Halton Public Health. As of Tuesday, there had been a total of 274 cases, both inmates and staff, linked to the outbreak — the worst of any jail in the province.
The Star is not naming Woods’s boyfriend because she hasn’t spoken to him in a week.
In the early months of the pandemic, the province was lauded for a dramatic drop in the jail population — 70 per cent of which is made up of people waiting for trial — in recognition that COVID-19 had the potential to run wild through the crowded facilities, just like it did on cruise ships. An early example of just that was the first-wave outbreak at the Ontario Correctional Institute in Brampton that left 91 inmates and 25 staff infected with the virus.
“Information notes” from the Ministry of the Solicitor General used in bail and sentencing courts noted that jail population fell 32 per cent from pre-pandemic levels — a decrease of about 2,500 people — and all 25 Ontario jails were operating under capacity.
A significant part of the decrease came from the ministry allowing people serving intermittent sentences to stop spending their weekends in jail.
In parallel, court statistics show the number of people being charged also decreased in April and May 2020, alongside a drop in police-reported crimes. And, anecdotally at least, police seemed more likely to release people on undertakings without holding them in pretrial custody for a bail hearing, and prosecutors more likely to consent to release on bail.
As the summer turned to fall, that initial sense of urgency to keep the jail population low appeared to wane. In court decisions, judges noted that new restrictions, including a 14-day quarantine for new admissions, more frequent lockdowns, no or limited access to visits, and cancelled programming had made incarceration harsher. But, they also noted, the efforts to prevent further outbreaks were largely successful.
“There is no doubt that the current COVID-19 pandemic is still with us. It continues to be a danger to people in custody,” said one bail review decision from October. “The correctional authorities, however, appear to have done a good job of limiting its effects. No doubt this is due to the measures they have taken, including the release of the least dangerous inmates in an effort to lower the numbers of people in the prison population.”
But as Ontario entered its widely-predicted second wave, the jail population kept rising.
By October, the initial 32-per-cent drop in the jail population had become a 21-per-cent drop. By January, the population was down only 15 per cent from pre-pandemic levels. At least five jails were overcapacity.
Two of them, the Thunder Bay District Jail and the Maplehurst Correctional Complex, have large ongoing outbreaks.
In Ontario’s first wave between March and the fall, there were a total of 169 inmate cases of COVID-19, 91 of which came from the Ontario Correctional Institute outbreak in April — the sole outbreak listed in a ministry information note for that period of time.
Since December, there have been at least 590 inmate cases and at least 12 outbreaks at jails across the province, according to data released by the Ministry of the Solicitor General. As of Feb. 10, there were at least 186 active cases among inmates in Ontario jails. There have been more than 240 staff cases.
“It seems like the courts went back to the status quo,” said Dana Fisher, spokesperson for the union representing Legal Aid Ontario lawyers. Her colleagues are reporting an influx of administration of justice offences and a decline in flexibility from prosecutors compared to the first months of the pandemic.
Howard Sapers, the former Ontario Independent Advisor on Corrections Reform, had a similar observation.
“It appears to me that the administration of justice has recalibrated itself to the pandemic,” he said. “We are seeing the use of pretrial custody creep up. We are seeing not as much effort into make sure bail hearings (and) bail reviews are being done as quickly as possible. We are seeing people being returned to custody not because they’ve committed a new crime but because they’ve breached a condition of a bail release.”
And because inmates are not being physically transported to appear in court — a measure to reduce the risk of catching the virus outside and limit the need to repeatedly quarantine — jails are struggling with a spike in demand for audio and video court appearances, including for bail hearings, Fisher said.
Many of her colleagues have reported delays in scheduling bail hearings, particularly if bail is contested.
And it’s taking longer to craft a bail plan because it’s extremely hard for lawyers and community services agencies to speak to clients at the jails to get instructions, Fisher added.
COVID-19 has also made it harder for people to obtain sureties and places to live while on bail. It’s a burden felt especially by Indigenous people, who may not be able to return to their communities as they otherwise would because of the risk of introducing the virus to a highly vulnerable community, said Caitlyn Kasper, a lawyer at Aboriginal Legal Services Toronto.
The upshot, they say, is people who could be safely released on bail are being held in custody longer than they should be.
Overcrowding in jails was a well-documented problem pre-pandemic. Cells originally designed for one person now hold two, and sometimes up to four. A jail aims to operate at 85per-cent capacity. The most recent auditorgeneral report, covering 2018/2019, found more than half the province’s 25 jails operated above this threshold. The need for mental health care far outstrips what is available.
Overcrowding leads to more lockdowns, to staff who don’t have time to do their jobs properly, to longer waits for psychologists and health care, Sapers said.
There is a duty of care the province has to someone in jail, and that involves people being treated with dignity and respect for human rights.
“It’s hard to do that when you’ve got three or four people in a cell designed for one and somebody sleeping on a mat on the floor with their head beside a toilet,” he said. “With a pandemic, crowding means that you’re giving the virus a better chance to infect people and spread. And why would we do anything to enable this virus.”
“It’s not just a corrections issue,” Sapers notes. The jails don’t control who gets sent there.
But the spate of recent outbreaks, ongoing safety concerns raised by inmates such as being denied access to face masks, and the nine Ministry of Labour orders issued last week at Maplehurst, ordering improvements in infection control, show that the jails were not as prepared for the second wave as they should have been, Kasper said.
The initial shock of the first wave of the pandemic turned into complacency, she said.
“It’s unfathomable to think we have not been able to address this given the amount of time we’ve had,” Kasper said. “It was a crisis waiting to happen.”
Andrew Morrison, a spokesperson for the Ministry of the Solicitor General, said it is the courts who determine whether someone is denied bail and what sentences are imposed.
“The ministry has a legal responsibility to uphold the orders of the courts and to ensure the safety and security of those in its custody,” he said in a statement. “The ministry continues to work with its justice partners to reduce the number of individuals coming into custody across Ontario. These decisions are based on a number of factors to ensure community safety remains paramount.”
Morrison said the inmate telephone system now allows calls to both cellphone and landlines.
Depopulating jails is an important strategy because congregate settings will always be at higher risk for COVID-19 transmission, said Dr. Claire Bodkin, a resident physician at McMaster University and prison health researcher. And there are people coming in and out of the facilities regularly — both staff and inmates.
The average length of time someone on remand spends in custody is 43 days, while sentenced inmates were in custody for an average of 59 days, according to the latest auditor-general report.
“We make the mistake of thinking that jails and prisons are separate from communities, but actually they are part of communities,” Bodkin said. Inmates “rely on community health services … they are going to a hospital in that community.”
The high risk for outbreak, coupled with a population known to be less healthy than the general population, is why advocates have called for jail inmates and staff to be among those prioritized for the vaccine.
Kasper said there needs to be a renewed focus on preventing people from ending up in custody wherever possible — including preventing people from repeatedly ending up in custody because of minor bail breaches. More needs to be done to design realistic bail plans and there need to be community supports available to help people remain out of custody, she said.
Sapers is still hopeful that there will be long-term change in the way pretrial custody is used as a result of lessons learned during the pandemic — the initial decline in the jail population didn’t result in any crime wave.
“A desirable outcome for me would be learning how to live safely with less pretrial detention,” said Sapers.
When Woods last spoke to her boyfriend, he told her they’d spent six days in lockdown, unable to leave the cell he shares with one other person. They hadn’t showered in those six days, and when they were let out, were told that they left their cells at their own risk.
Woods can understand what he is going through better than most — she spent time in lockdowns at the Vanier Centre for Women, a jail also now in a COVID-19 outbreak. But now there is the fear of the virus spreading, the repeatedly delayed trial dates and the stress of being unable to see loved ones, or even call them. It’s making conditions unbearable, and even worse for inmates with mental health and substance use issues, she said.
“I had a breakdown this morning and I cried,” she said. “I’m trying to be supportive from the sidelines, trying to fight on their behalf and his behalf. It’s difficult.”
“We make the mistake of thinking that jails and prisons are separate from communities.”
DR. CLAIRE BODKIN
PRISON HEALTH RESEARCHER