COVID-19 UPDATE FROM TARNOW CRIMINAL LAWLearn More

Mission Impossible: Managing COVID-19 in the Canadian Correctional System

On March 18, 2020, the BC court system responded to the coronavirus pandemic swiftly and without hesitation, reducing operations by the likes of which criminal counsel simply hasn’t seen before. Once it was confirmed how rapidly COVID19 spreads, the crowded confines of publicly accessed courtrooms were immediately deemed inappropriate – dangerous even. Since courtrooms often yield a congregation of some of society’s most vulnerable people, it made perfect sense to act defensively. These decisions, and many others effecting the justice system, were made only one week after the World Health Organization declared a global pandemic on March 11, 2020.

Unfortunately, there was a noticeable absence of urgency when it came time to protect the vulnerable inmate population overcrowded and totally confined within the walls of Mission Institution.


“In the worst-case scenario, CSC will need to order more body bags and find cold storage to stack up the bodies of those whose lives will be lost that could have been saved”Justin Piche, criminologist, Criminalization and Punishment Project at the University of Ottawa

On March 31, 2020, federal Public Safety Minister Bill Blair recommended that the Correctional Service of Canada (“CSC”) immediately consider the release of non-violent inmates to mitigate the unavoidable reality that the virus could, and would, devastate the wellbeing of prison populations. His recommendation came on the heels of the CSC announcing the first two positive COVID-19 cases in federal institutions in Quebec.

On April 4, 2020, the CSC announced 4 confirmed cases at Mission Institution, leading to a lockdown of the facility.  

By April 8, 2020, there were 11 confirmed cases, all inmates. Nearly one month had passed since the WHO declared a global pandemic.

By April 18, 60 inmates and 10 staff tested positive, and the CSC marked its first coronavirus related inmate death, exactly one month after the courts effectively shut down.

By April 25, 2020, 106 inmates and 12 correctional officers were confirmed to be infected, representing the largest outbreak in the Canadian Correctional System. On this date, the CSC advised that all inmates at Mission Medium Institution had been tested, but in any event, new cases were continuing to be discovered.

While disturbing, none of these developments are surprising. The largest incidence of outbreaks has been at long-term care homes – combining close quarters, limited mobility, and care-workers employed at more than one facility is a recipe for disaster when it comes to COVID-19, a pathogen that spreads and infects without discrimination. The same vulnerabilities exist within the correctional system, where they are intensified. Inmates and corrections staff are simply unable to practice crucial social distancing. Personal protective equipment for inmates has not been prioritized as it has in other sectors, despite these individuals being at a much higher risk of getting sick.

The CSC responded to COVID-19 by prohibiting visits to inmates, temporary absences, work releases, and inmate transfers between correctional facilities. While these steps likely helped to curb the spread of the virus, as a whole, they are grossly inadequate. Without a vaccine, social distancing remains our greatest defence against the virus. For the inmates at Mission Institution and those incarcerated at facilities across Canada, proper protective equipment is hard to come by, but hope is even harder.

High Risk: Marginalizing the Mentally Ill

A Justice of the BC Supreme Court refused to label    Allan Schoenborn as a “High Risk Offender”, meaning that designation has still not been successfully applied since it was introduced by the Harper Government.

Allan Schoenborn was found guilty, but not criminally responsible for the murders of his 3 young children, whom he believed had become victims of sexual abuse. Psychiatrists who assessed him unanimously agreed that he had been suffering from delusions and other symptoms consistent with a schizoaffective type disorder. As a result, it was determined that he did not bear legal culpability for his actions.

Although he was found to not be responsible for his actions, he was remanded to Colony Farm, a Forensic Psychiatric Hospital, for an indefinite period of time (as is standard with all NCR offenders).

The purpose of the Not Criminally Responsible, High Risk Offender legislation is aimed at designating offenders found not criminally responsible by reason of mental disorder as “high risk” if it can be proven that they pose a serious threat of inflicting grave physical or psychological harm to another person.

This legislation is strictly applicable to offenders found not criminally responsible – in essence, it is punitive legal recourse only available for individuals who have already been deemed as severely mentally ill.  

In her decision, Justice Martha Devlin determined that there was no reason to believe that Schoenborn met the criteria necessary for a High Risk designation. She noted that his current mental condition, along with the opinions of the experts overseeing his care, does not reflect him posing a serious threat to the public.

If the designation had been granted, it would have excluded Schoenborn from receiving escorted outings into the community, and would create a 3 year period between his review board hearings, as opposed to 1 year as is current procedure.

One of the biggest concerns we see in this legislation, is the effect it may have on offenders who should be entering a plea of not criminally responsible. The problem is that if an offender is likely to meet the criteria of a High Risk Offender once being deemed NCR, they may opt to take a determinate jail sentence simply because a High Risk Offender designation could seriously impede their ability to regain freedom from the psychiatric facility where they are being held. If an Accused person is told “plead guilty and you’ll get 10 years in jail” or given the option of “if you establish a NCR defence, there is a risk of a High Offender Designation, and I can’t tell you with any certainty whatsoever when, or if, you will ever be freed”, which option will likely seem more attractive?

Interestingly enough, Mr. Schoenborn’s high profile case was basically singled out by Stephen Harper when the “High Risk Designation for NCR Offenders” legislation was tabled in 2013. The decision by Justice Devlin demonstrates why impartiality and transparency are vital to the survival of judicial process: although the facts related to this case are heinous and disturbing, a path has been carved for Mr. Schoenborn, and Justice Devlin refused to hinder his progress. His NCR designation was not established in haste, and each step of his treatment since that time has been methodical and closely monitored. He requires intensive treatment and rehabilitation in order to, one day, have an opportunity at freedom.

Navigating through the criminal justice system as an Accused person is an intimidating experience. It is compounded when you are dealing with a mental illness. We are experienced in liaising with clients who suffer from severe mental health problems. We understand that compassion, respect and understanding are of fundamental importance when confronting with these issues. We are conveniently located in Richmond, B.C. only a few steps away from Brighouse Station on the Canada Line, which brings you from various locations in Metro Vancouver in 20 minutes. We service all areas of the lower mainland (including but not limited to Surrey, New Westminster, Port Coquitlam, North Vancouver, and Abbotsford) the interior of B.C. (including but not limited to Cranbrook, Kelowna, Kamloops, and Salmon Arm), Northern B.C. (including but not limited to Prince George, Prince Rupert, and Quesnel) and in the Yukon Territory where we offer services in Whitehorse, Dawson City, and Old Crow. Contact our office today for your initial consultation.