An Ontario man's fight to get out of jail before COVID-19 gets in

At Toronto East Detention Centre, a 21-year-old man watches the news from inside his jail cell. The cell faces a common area where a TV blasts a 24-hour news channel.

It's early March, and the man The Doc Project has agreed to call "T" for confidentiality reasons, watches as the number of cases of COVID-19 climb in Ontario and almost everywhere else in Canada. 

He and others awaiting trial here are getting scared.

As the politicians on TV call for social distancing, T looks around his tiny cell and the small common area.

"There's 10 cells on a range [cellblock], possibly two people to a cell. Ten or more people, up to 20 people on the range," says T.

Sometimes three people must squeeze inside cells that were really built for two, T says. When this happens, one person sleeps on the floor.

There's 10 cells on a range [cellblock], possibly two people to a cell. Ten or more people, up to 20 people on the range.- T, an inmate at Toronto East Detention Centre

At the time, up to 20 men lived in close quarters with new inmates coming in and a rotation of guards clocking in and out every day. As T watched the news, it became clear to him: these conditions were ripe for spreading COVID-19.

T says a guard told him to try and find a way to make bail, and — for the sake of his health — not to wait for trial from inside the prison.

So, T, like others waiting for trial at the onset of the pandemic, asked his lawyer to do whatever she could to get him out while he awaited trial on charges related to drugs and possession of a weapon.

Inside the courts

Bail hearings across Ontario are becoming debating grounds about COVID-19 and the threat it poses to inmates and detention centre staff.

Hilary Dudding, T's lawyer, says the COVID-19 crisis has brought one of the "busiest and most stressful and surreal" times in her career.

"Everybody's looking for bail," she says.

Defence lawyers are arguing that every single prisoner is at risk of getting sick and that detaining them increases that risk.

Dudding says she's been concerned about how COVID-19 will affect her clients since she saw how the virus spread on cruise ships. She says factors that allowed it to spread there would be "doubly a problem for people in jail."

T says the correctional officers delivered a pile of toiletries to the cellblock every week, but not everyone got some.

"It really depends because some people take more than what they need."

T said access to hand sanitizer was unpredictable, too. Most jails won't let prisoners have it at all because of the alcohol content, but T says the guards in Toronto East kept large bottles in the hallways between the cells and the yard. Some detainees discovered they could fill a small shampoo bottle with sanitizer from the communal supply and keep it in their cells, he says.

When The Doc Project asked Ontario's Ministry of the Solicitor General about toiletries, a spokesperson said all inmates are "provided cleaning products to keep their living areas clean, as well as toiletries such as soap, shampoo and toothpaste. Additional toiletries are provided to inmates upon request."

Some Crown attorneys are acknowledging the risks to everyone. But Crown attorneys, who spoke to The Doc Project and asked for their names to be withheld, also said they were arguing for prisoners' to present proof of their individual risks, so decision-makers could weigh that risk when deciding on releases.

In Ontario, there's been no public directive from the provincial government on how Crown attorneys should approach bail hearings.

The federal prosecution service put out a memo for their staff, but federal prosecutors only work on a limited range of issues, with their work largely focused on drug-related cases. Ontario Crown attorneys say they are internally discussing strategy, but it's ultimately up to each individual on how to approach their cases. 

The decision to grant or deny bail is complex and based on the specific circumstances of each case.- Ontario's Attorney General

Last week, a spokesperson for Ontario's Attorney General told The Doc Project in a written statement that "the prosecutor must act with objectivity, independence and fairness in each case to ensure early, timely and principled decision making based on the circumstances of the accused and the offence and an appropriate use of legal principles." 

The statement went on to say that if the prosecutor believes releasing the accused would jeopardize safety for a victim or the general public, they must seek detention.

It also said "the decision to grant or deny bail is complex and based on the specific circumstances of each case."

There was no mention of COVID-19.

Detained, but presumed innocent

On March 13, Ontario's provincial jails ended in-person visits with family and friends.

A few days later, the offices and courtrooms of the Ontario's Superior Court of Justice mostly closed down, saying it was no longer safe for court staff, lawyers, or people with cases to come to court in person.

The court started pushing back some court appearances, moving others to phone and video-conferencing. Some trials got cancelled altogether. Court officials say it will stay that way until at least June and later revise that target to July or beyond.

As with many aspects of the COVID crisis, the situation in Canada's correctional systems is evolving. But when The Doc Project began chronicling T's journey at the start of the pandemic, much of the conversation around COVID-19 and the correctional system focused on releasing non-violent offenders in order to prevent outbreaks in prisons from getting any worse.

Just over two weeks ago, 60 inmates and eight staff at the Ontario Correctional Institute in Brampton tested positive for COVID-19. That number climbed as the province shut the facility down.

In recent weeks, some prisoners serving sentences have been released early while others have been given temporary release.

But most people sitting in Ontario's jails haven't been convicted of anything. They're pretrial — detained, but presumed innocent. The Auditor General of Ontario reported from 2018 to 2019, 71 per cent of people in Ontario's prisons were awaiting bail or trial. Statistics Canada reported that from 2017 to 2018, eight territories and provinces had more people presumed innocent in their jails than those found guilty.

Across Canada, the total number of people awaiting trial or sentencing in provincial and territorial jails has been higher than the number of people actually sentenced since 2005.

With the courts in emergency mode, pretrial detention became purgatory. Some people have already been in jail for months awaiting their trials — some for more than a year. Trial dates in April and May have been cancelled. No one has been given new trial dates.

Dudding said Ontario jails were at a crisis point before COVID-19 came along, with more than half the provinces' jails operating above their target capacities.

Ontario's Ministry of the Solicitor General, which oversees jails, told The Doc Project it has "implemented a number of measures" to keep staff and people in custody safe, including granting temporary absence passes to intermittent inmates who no longer have to report to jails on weekends, and releasing a small number of people who were nearing the ends of their sentences.

Since March 16, the prison population has gone down by 32 per cent. But the ministry couldn't say how many pretrial detainees had been released. 

Getting out

With the courts closed, busy courtrooms shrank to a phone line or video conferencing. Lawyers called into their hearings. People offering themselves as sureties — community members who take responsibility for people released from jail while awaiting criminal trials — called in, too.

"We were all kind of figuring it out as we went along," says Dudding.

But on the day of T's hearing in late March, something went wrong with the video system in the jail so he had to go in person.

On the morning of the hearing, a correctional officer handcuffed T, then he was handed off between a whole series of officers. They put him in a paddy wagon with four other prisoners.

We were all kind of figuring it out as we went along.- Hilary Dudding, T's lawyer

No one offered him hand sanitizer, he says. He tried not to touch his face.

After the arguments were made, everyone waited for the Justice of the Peace to make a decision, but he needed more time to think. He said he would have the ruling the next day. Hilary hung up the phone. T went back to jail.

The next day, T was back in court. His mom sat in her car outside, waiting for the decision. T would be under house arrest at her place. She stared at her phone waiting for a text from Dudding. Fnally, her phone lit up.

T is coming home.

"Joyful. Like happy. It's like, hard to explain," says T when asked how the decision made him feel.

As for his mom, "You can't describe it. She's happier than me."

About the Reporter

Leora Smith is a journalist and graduate of Harvard Law School. Her recent writing has appeared in The Atlantic, ProPublica, The New York Times Magazine and Longreads.

This documentary was produced by Acey Rowe and edited by Julia Pagel. Special thanks to Joan Webber.