I have been getting a lot of questions about early release from provincial jail in light of what’s going on with Covid-19. I’m getting calls from inmates in jail, from families, and from other lawyers. Everyone wants to know how the authorities are going to respond to this pandemic. And everyone, obviously, wants either to get out of jail or wants their family out of jail. There may be a few places worse than jail to live through a pandemic (or not live through it, as case may be) but not many come to mind. Things are going to get hellish pretty quickly.

The problem is that most people are going on rumor, guesswork, and half-truths. Even the lawyers referring clients to me generally don’t deal with parole in normal times – and these are obviously not normal times. So the first thing I tell any client is that I really don’t know what’s going to happen next. I’m talking to all the right people – everyone who does know anything – and it’s still not clear. So if I don’t know, then no one really knows for sure what’s going to happen next. And anyone who claims to know is probably just confused.

Here’s what I do know. The government very recently amended Regulation 778 under the Ministry of Correctional Services Act and changed two major things. First, the Ontario Parole Board is now able to conduct hearings by remote, and those are continuing by telephone. This is mostly a good thing (I have some concerns, but I’ll save them for a follow-up post) because if nothing else it allows the Board to continue functioning at all. Previously the Parole Board would go into the jails to conduct hearings, and the jails aren’t allowing anyone – including them – in right now. Second, the government has given senior corrections officials the power to grant extended temporary absences from jail. In basic terms, the corrections authorities now have the power to simply allow someone to not be in jail even though their sentence isn’t done.

The sticking point – and here is where anyone who claims to know just isn’t being honest about it – is how that power will be used. Based on the government’s news release on the subject, this will be used for “early release of those inmates who are near the end of their sentence.” They also state that “inmates who have been convicted of serious crimes, such as violent crimes or crimes involving guns, would not be considered for early release.” It’s already the case that inmates who were serving intermittent sentences – coming in for the weekend but allowed to go home in between – are already not staying in jail. But beyond that, I don’t know of any case where this new power has been applied. All we have is the text of the news release itself.

I have one other piece of information to go on. I was contacted by the Globe and Mail in relation to this article about conditions in Thunder Bay jail. I’ve been popular with the media lately, with all that’s going on. They didn’t end up using my quote because they got some information directly from the Ministry – which is better information than I have from anywhere else. Quoted in this article, the Ministry of the Solicitor-General confirmed that “inmates are not expected to apply and will instead be notified if they qualify.” No timeline for this process was clarified.

That is as much as I do know, right now. Which leaves everything I don’t know. I don’t know for certain who will qualify or on what basis. The few lines we have in a media release do not imply a legal test, by themselves, with any kind of predictable criteria. I also don’t know if this is a power intended to be used immediately to reduce the inmate population or if it’s a special power they are keeping in their back pocket in case things get really bad. Since there is no way to apply for consideration, and it’s supposed to be automatic, there’s realistically nothing I (or any other lawyer) can do to hasten it along. Theoretically there could be judicial appeals to any decisions down the road, but that won’t help anyone immediately and that’s all that really matters right now.

All of this brings me back around to what I can do – which is exactly the same thing I’ve been doing for years. I can help people apply for provincial parole and prepare for their hearing before the Ontario Parole Board – which is now taking place by phone, but is at least still happening. My experience has been that every form of decision-making in the justice system is bending in acknowledgement of Covid-19 – which is entirely appropriate. Police are thinking twice before arresting people for petty reasons, are releasing on a “promise to appear” where possible, bail hearings are getting more flexible and more creative, and I certainly believe and expect that parole decisions will take the pandemic into account also. This emergency isn’t a “get out of jail free” card. It could never be that. But certainly it could push a decision over the line that might have fallen short in other circumstances.

I’ve spoken to a lot of people lately who want to tell me how bad it already is in jail and how much worse it’s going to get. I always listen, but it isn’t like this information is new to me. And there’s still nothing I can do to push the authorities towards any kind of extraordinary release process. As a lawyer, I gravitate to the things I can do. The Ontario Parole Board is still making decisions in the usual and orderly way. It won’t get anyone out of jail immediately, but it can result in much earlier release for many people. Pursuing parole through the usual channels doesn’t mean giving up on the hope of some special emergency action in the meanwhile. It just means that you haven’t put all your eggs in that basket.

As always, I’m available for consultation as needed. Please note that nothing in this post or on this site should be relied upon as legal advice by itself. If you want to set up a consultation, please contact me.