Sending people to the Thunder Bay jail during COVID-19 outbreak is a violation of Charter rights: lawyers

The Ontario government is violating the Canadian Charter of Rights and Freedoms when they detain people at the Thunder Bay jail and correctional centre during the growing COVID-19 outbreaks.

That's the position of the Defence Counsel Association of Thunder Bay, a group of criminal defence lawyers in the city that formed in January of last year to advocate for the rights of the accused.

"Individuals who are in pretrial detention are being held under the benefit of the presumption of innocence. There's no lawful basis for their punishment. [But COVID] is a highly infectious condition. This is a condition that potentially has long term health effects. This is a condition that can be fatal," said Michael Hargadon, a practicing criminal defence lawyer in the city and a director with the association.

He added, "it's a matter of being held in pretrial detention, where you may be exposed to a potentially deadly pathogen and may suffer long-term health effects if you're infected with it. And so we are of the position that that violates the right to life and the right to security of the person."

Constitutional expert says multiple Charter rights being violated

An associate professor that teaches constitutional law at the Lakehead University Bora Laskin Faculty of Law says there are three Charter rights that are potentially being violated by the Ontario government when it comes to the care of inmates in Thunder Bay correctional facilities.

The most obvious violation, Mariette Brennan says, come with Section 7 of the Charter: the right to life, liberty and security of the person.

"COVID-19 obviously does have an impact on people's lives in that they may die if they're contracting it … and so their right to security of the person and the right to life would be in jeopardy if they were sentenced to jail."

But Brennan added that the inmates right to protection from cruel and unusual punishment, or Section 12 of the Charter, is also in question.

"There are more severe restrictions put into place in the prison systems now, so there's more segregation occurring to ensure physical distancing. There is a cutback of all kinds of community privileges that happen … and so essentially it means that they're put into harsher situations than what is necessarily warranted for them."

There is also an over-representation of particularly vulnerable populations like Indigenous people and people with mental health disabilities within the justice system, Brennan said, which "actually violates Section 15 in terms of discrimination because it is having an unequal impact on certain recognized groups in our society."

The constitutional law expert added that Section 1 of the Charter provides an opportunity for the province to argue it was justified in violating the rights of inmates.

But Brennan said evidence of the Ontario justice system knowingly sending people into custody at facilities with active COVID-19 outbreaks will likely lead to new lawsuits against the government.

Inmate population at jail grew despite outbreak

And indeed, statistics obtained by CBC shows that the Ontario government continued to send people into remand at the district jail throughout January, despite cries for help from local union leaders to move inmates out as the respiratory disease spread rapidly throughout both buildings.

For 14 consecutive days in January, the district jail had a population at or above its operational capacity of 124 inmates.

It was only after January 21 — the same day that 51 new cases were announced at the two correctional facilities — that there was any clear action taken by the Ministry of the Solicitor General to reduce the inmate population.

And since the first case was reported on January 5, 126 inmates and staff at the two facilities have tested positive for COVID-19, by CBC's count.

Inmates scared about getting COVID: defence lawyer

Defence lawyer Hargadon said most of his colleagues started receiving frantic calls from their clients being held in the city's two correctional facilities as soon as the outbreak was reported.

"Our phones exploded with clients essentially saying, 'I'm scared. I'm not sure if the protections that are here are going to be adequate. I don't really feel that I should be in custody. What can you do to deal with this?'"

Hargadon said the different parties involved in the local justice system, including police officers and lawyers for both the Crown and the accused, came together to act quickly.

He says bail hearings have been prioritized, and Crown attorneys have made more time available to negotiate sentences for people that plead guilty so the number of people doing "dead time" in the jail is reduced.

And in respects to potential lawsuits, Hargadon says he hasn't heard of anything with respect to the Thunder Bay correctional facilities, but he "would be very happy to see it taken up."

Ontario's Solicitor General Sylvia Jones has refused multiple requests for an interview with CBC.