Indigenous Lives at Risk: Prisons and COVID-19

By Jesse Donovan

As provinces begin contemplating the reduction of physical distancing requirements, Indigenous communities remain on the edge of a precipice.

Despite extraordinary measures, over one hundred and fifty cases of COVID-19 have been confirmed on First Nations reserves. Multiple outbreaks have been reported in federal prisons where Indigenous people are over-represented due to the chronic racism in the legal system.

The timing and severity of subsequent waves of COVID-19 remains unknown. Meanwhile, flooding and wildfires loom on the horizon and threaten to compound the effects of the pandemic.

With this backdrop of extreme uncertainty, actions taken by Canada and its provinces will have an outsized impact on Indigenous peoples. Nowhere will these actions be felt more intensely and immediately than among Canada’s population of Indigenous prisoners.

To prevent an imminent humanitarian disaster, Canada must take immediate steps to prevent the spread of COVID-19 in the prison system. These steps will likely include targeted releases of prisoners, increased testing, and improved sanitation measures. While necessary, these short-term measures will not address the root causes of Indigenous overincarceration.

Before COVID-19, the proportion of Indigenous prisoners in federal prisons was rapidly increasing. In this context, a return to normalcy is unacceptable. Failing to address Indigenous overincarceration will leave Indigenous prisoners vulnerable to subsequent waves of COVID-19 and future pandemics.

The Prison State

Canada’s mass incarceration of Indigenous people has long presented a stumbling block to reconciliation.

Earlier this year, Canada’s prison watchdog warned policymakers that the proportion of Indigenous prisoners in federal custody had reached an all-time high.

Indigenous people represent roughly five percent of the population but almost a third of the federal population of prisoners. The situation is even worse for Indigenous women who make up 42 percent of the population of women in federal custody.

Courts have consistently recognized that the overincarceration of Indigenous people stems from the  history of colonialism, residential schools, and displacement of Indigenous people.

Put simply, Canada is the architect of the incarceration crisis.

Overcrowding and a lack of adequate health care services mean that prisoners are especially vulnerable to the spread of disease.

In recent weeks, complaints have emerged that Correctional Services Canada is mishandling the COVID-19 outbreak in prisons. A lack of protective equipment, testing, and transparency have resulted in dangerous situations in some federal prisons. These concerns are compounded by inadequate sanitary measures and the near impossibility of physical distancing.

In early April, a significant outbreak of COVID-19 occurred at the Mission Institution in British Columbia. Roughly 40 percent of inmates who tested positive for the virus are Indigenous.

In Quebec, an Indigenous woman filed a class-action lawsuit against Correctional Services Canada after a large outbreak of COVID-19 at the Joliette Women’s Institution. These incidents underscore the immediate dangers facing Indigenous prisoners across the country.

Addressing the Crisis

To avoid catastrophe, Canada must take immediate steps to halt the spread of COVID-19 in prisons.

As a crucial first step, Canada must acknowledge its role in filling prisons with Indigenous prisoners. In coordination with Indigenous bodies, Canada must swiftly implement a transparent plan to reduce the risk of COVID-19 in its prisons.

Earlier this month, the Union of BC Indian Chiefs called for increased testing and medical capacity, access to mental health resources, and targeted releases of prisoners.

Canada has begun to take these important steps, releasing several hundred federal prisoners. These measures are essential to avoiding a humanitarian crisis in the near-term.

The backdrop to the current crisis is the mass incarceration of Indigenous people. Before COVID-19 began to spread through Canada, rates of Indigenous incarceration were continuing to rise. The goal, therefore, cannot be a return to normalcy.

Canada must approach this issue on the basis that COVID-19 may continue to circulate for the foreseeable future. A long-term approach involves addressing the systemic factors that have led to the mass incarceration of Indigenous people.

Looking Ahead

The potential impact of relaxed restrictions remains unknown. What is known is that Indigenous prisoners are highly vulnerable to COVID-19.

Canada must ensure that its prisons have the necessary resources to prevent and address outbreaks. This, however, represents the bare minimum.

Suppressing the first wave of COVID-19 will save lives but will not address the factors that have made Indigenous people uniquely vulnerable to pandemics. Canada’s policy response must be grounded on the knowledge that its chronic discrimination against Indigenous people has created these vulnerabilities.

This is part three in our COVID-19 series. Read part one and part two.

Jesse Donovan is a lawyer at First Peoples Law Corporation.

Contact Jesse

Follow Jesse on LinkedIn and Twitter 

For more First Peoples Law analysis, visit our blog

Sign up for our Aboriginal Law Report