Put prosecution of petty criminals off to the side

Now is not the time to fill up our jails, Joe Killoran says.

Across the country, Canadians are making extraordinary efforts to practise physical distancing to slow the spread of the COVID-19 virus. Unfortunately, these practices are impossible to implement in Canada’s jails and prisons where criminalized people are grouped together in small areas.

Consequently, it should surprise no one that the virus has spread among prison employees and staff. The first case in a B.C. jail was identified this week, several inmates and correctional officers have tested positive in Quebec and Ontario, and more are almost certain to follow. While Canadian jails and prisons have always been ineffective in their goal of rehabilitating inmates and inhumane in their treatment of prisoners, they now constitute a clear and present danger to the health of the public.

B.C. Corrections has just begun to release some low-risk inmates who are close to the end of their sentences. This is a wise and necessary step but the justice system must take further measures to ensure the safety of prisoners, corrections employees, and the Canadian population. With that in mind, police should avoid arresting anyone who is not a danger to the safety of another human being. Catching drug users and preventing crimes against property must take a back seat to protecting public health. When police officers must make an arrest, they should consider releasing accused people on the scene whenever possible.

Similarly, police and prosecutors should have to meet a higher standard for charge approval. For example, in B.C., Crown counsels must already consider whether pursuing a charge is in the public interest. During this crisis, they should receive direction that petty thefts and drug offences should not be charged and that these low-level offenders must not be jailed. The criminal code already provides prosecutors with the option of pursuing alternative measures such as restitution, a letter of apology, or referrals to specialized programs such as counselling. While these measures are often limited to young or first-time offenders, their use should be expanded for this emergency.

The public interest demands jail be used as a last resort. The prosecution of petty criminals, of questionable value at the best of times, is terrible public policy during a pandemic. These offenders, many of whom have existing health problems, are often in jails or correctional centres for short sentences or periods of time prior to their bail hearings. This make them ideal candidates to spread the virus and means their movements between jail and society are dangerous.

More importantly, while many people imagine “criminals” as depraved and diabolical masterminds, the truth is most petty criminals are among the most broken, abused, addicted, mentally ill, and vulnerable members of our society. None of them deserve a possible death sentence for manifesting the entirely predictable consequences of the trauma they have experienced. In the case of Indigenous prisoners who make up a hugely disproportionate percentage of people in Canadian jails, this trauma is usually the result of Canada’s oppressive colonial policies.

If arrests must be made, then the grounds for seeking bail must be amended for the duration of this crisis. Crown counsels can seek someone’s detention on three grounds: 1) They are unlikely to attend their next court appearance; 2) they are likely to reoffend; 3) their detention is necessary to maintain public confidence in the justice system. Going forward, detention should only be sought when the accused is deemed to be a threat to the physical safety of another Canadian, and the onus ought to be on the Crown to prove this threat. Given the emergency circumstances, it is dangerous to risk spreading this virus in order to detain shoplifters or people with drug addictions, even if they are likely to continue using drugs, shoplift, miss court dates, or breach probation conditions.

All Canadians are entitled to “security of the person,” according to the Charter of Rights and Freedoms. In practice, this means the government is not permitted to take actions that threaten an individual’s health or bodily integrity. It is difficult to imagine a graver violation of this right than forcing Canadians to face a heightened risk of serious illness or death. Perhaps the “reasonable limits” clause of the Charter could be employed to make the argument that murderers or other dangerous offenders must be confined to protect the public. However, it is unconscionable that petty criminals must endure these risks and the dread that accompanies incarceration at this time.