Of Governmental Priorities, Human Rights, and Social Control: Prison Responses to the COVID 19 Pandemic

Early in the COVID-19 pandemic, international human rights organizations and international health organizations warned that prisons would be
some of the most impacted spaces, both because of the congregated living
settings and because of the high vulnerability of those in custody. They urged
governments to decarcerate to the fullest extent possible and to ensure prisoner rights were upheld during the pandemic. Some of the Canadian provincial prison systems (responsible for the custody of those awaiting trial or
those serving custodial sentences of less than two years) undertook measures
to depopulate. However, many others, as well as the federal correctional system (responsible for those serving custodial sentences of two years or more),
did not. In addition, after the first two waves of the pandemic, the incarceration rates have creeped back up, even in the provinces that were faring
better. Many prisons have had difficulties respecting even basic health prevention protocols, such as providing masks and soaps to those incarcerated.
It is, thus, not surprising that the number of infections among incarcerated
populations, federally and in some provinces, has been much higher than the
rate of infection in the community.

The harm inflicted on those in custody, and by extension, on the communities they belong to, went beyond endangering physical health. Not only did
governments not take adequate measures to protect those in custody from
infection but also, under the justification of the pandemic, prison systems
and facilities were granted unfettered discretion to restrict, on a large scale,
prisoner rights and residual liberties. It is these restrictions that will be the
focus of this essay. In the next section, I will describe the measures taken in
correctional institutions across Canada and their impact on individual rights
and well-being. I will then turn to discussing the implications of these pandemic responses on society at large, on the rule of law, and on Canada’s commitment to social justice.

The chapter reflects on the responses adopted earlier on, at the peak of
the pandemic. Some of the pandemic measures continue to the present day,
and the regular prison activities have not resumed in full, across the country,
at the time of writing. That said, the restrictions that remain in place are
milder now and are often not reported as “pandemic emergency measures”
but rather as measures imposed due to staff shortage or budgetary issues (but
which, of course, either derive from or were worsened by the pandemic).
It is why this chapter often uses the past tense in describing the measures
taken while acknowledging that the consequences of these measures are still
unfolding.