Prosecutors review whether some N.W.T. inmates can be released, amid calls from defence lawyers

Prosecutors are reviewing the files of individuals currently on remand in jails in the Northwest Territories for their potential release under "very stringent conditions" to help curb the spread of COVID-19.

It comes as 15 defence lawyers in the N.W.T. said inmates face a "serious risk of rapid transmission" of the virus unless the government reduces the number of inmates in its jails.

CBC News has learned that the Public Prosecution Service is reviewing the files of individuals who are currently accused on remand in the territory for potential release.

Alex Godfrey, the chief federal prosecutor in the N.W.T., said the prosecution service is speaking with legal aid about this process.

"We're concerned about the fact that some of these individuals do potentially have a higher risk of contracting the virus, given the close proximity of the situations at the North Slave Correctional Complex]," he said in an interview Tuesday.

Godfrey said there are still a few key considerations that need to be made. He said they are not considering individuals charged with serious crimes or who are a threat to public safety if released.

They don't know how long the process would take, and ultimately it would be up to the courts to decide, he said.

They would also have to consult with people who may be impacted, Godfrey said.

It would be a case-by-case basis on where individuals were sent, he added.

As for how long individuals would be released for, Godfrey said if an individual is released on an appropriate plan, they would be out on that plan unless they reoffend.

Letter from lawyers

The N.W.T.'s chief public health officer is advising the general public to limit contact with others, but people who are incarcerated "do not have the freedom to protect themselves," states the March 23 letter from the defence lawyers.

The letter asked wardens to reduce the number of inmates at the North Slave Correctional Centre, the Fort Smith Correctional Complex and the South Mackenzie Correctional Centre, following calls from numerous human-rights organizations such as the Canadian Civil Liberties Association. 

The lawyers said they want temporary absences to be granted to prisoners on humanitarian grounds to protect inmates, staff and the public. 

The lawyers are also asking for the suspension of weekend sentences, because the movement of inmates in and out of jails presents a transmission risk.

N.W.T. jails have a disproportionate number of Indigenous inmates, who already face poorer health outcomes as a result of colonization, the letter states.

"The problem of over-representation of Indigenous people in Canadian institutions has been recognized by the Supreme Court of Canada as one that must be remedied. In the context of the COVID-19 pandemic, we fear that this over-representation will mean a disproportionate exposure and vulnerability to the virus," the letter states. 

"We urge you, as those responsible for the health of all inmates, to take immediate, preventative steps, before it is too late."

N.W.T. inmates are often housed two or three to a cell, and share bathing and toilet facilities, says the letter. They also share a kitchen and dining area. 

The Federal Prisons and Reformatories Act has provisions that authorize a temporary absence of a prisoner "with or without escort ... for medical or humanitarian reasons."

Concern about the widespread transmission of COVID-19 within jails already exists in Canada and the U.S., the letter states. At Toronto's South Detention Centre, one jail guard has already tested positive for the virus.

In the United States, at least 38 people have tested positive for COVID-19 at Rikers Island jail in New York City. That number includes 19 inmates and 12 staff, as of last week.

In response to the pandemic, some institutions have started releasing prisoners. In Ontario, low-risk inmates close to the end of their sentence are being released.

Department not publicizing COVID-19 plans

The N.W.T. Justice Department has a "contingency plan" for a COVID-19 outbreak at an N.W.T. jail, but it told the Yellowknifer newspaper that it would not release specific details.

At a March 13 press conference, chief public health officer Kami Kandola said correctional facilities have units to isolate people with respiratory illnesses such as tuberculosis.

If someone develops COVID-19 in jail, they would be sent to a private room and authorities would "ensure all measures to make sure nobody else has been exposed," said Kandola.

The final demand in the defence lawyers' letter is for the territory's three correctional institutions to immediately publicize their plan for prevention, testing, outbreak management and treatment. 

"Inmates, their families, and advocates, are entitled to know what the jails are doing to protect them in this time of danger and uncertainty," it states.

Without transparency, prisons risk 'panic and desperation,' says senator

Senator Kim Pate spent four decades advocating for the rights of incarcerated people and is the former executive director of the Canadian Association of Elizabeth Fry Societies.

She echoed N.W.T. defence lawyers in their calls for transparency from institutions and their pandemic plans.

Pandemics have historically hit prisons hard — from tuberculosis outbreaks to the Spanish Flu, she said.

While people fear a risk to public safety, prisons are a potential "petri dish" for incubation, she said.

"Knowing we're not talking about the most dangerous violent individuals … we should be looking at some of these measures (...) that would actually free up space to allow some of the curve flattening requirements that all the medical professionals are telling us we need to be doing."