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Other provinces such as British Columbia – the Mission Correctional Institution in Mission, B.C. seen here on April 14, 2020 – and Nova Scotia have also liberated prisoners, in addition to Ontario’s decision to allow intermittent prisoners to remain free.

JONATHAN HAYWARD/The Canadian Press

In mid-March, when the COVID-19 pandemic hit, Ontario had more than 8,000 people in its jails. Five weeks later, 2,600 have been freed – nearly a third of the provincial prison population.

These releases were an emergency health measure, because in overcrowded jails, as in seniors’ homes, the virus can spread quickly. Across Canada, infections are surging among inmates. In federal prisons, 186 inmates had been infected as of Monday, double the number from five days earlier, and one prisoner had died. A single provincial jail in Ontario reported an outbreak infecting 60 prisoners.

The failure to stop the virus from spreading behind bars raises questions as to why more prisoners haven’t been released. But the fact that many prisoners were released, and quickly, raises deeper questions about the rhyme and reason of Canada’s prison system.

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If these men and women could be safely released now, why not earlier? Why is jail our principal punishment, even for many non-violent offenders? Are there better responses to some crimes, and some criminals?

It is time for a radical rethink of a prison system that is little changed since its invention two centuries ago.

Ontario’s decision on March 13 was to allow intermittent prisoners – low-risk offenders who are behind bars only on weekends – to remain free. A week later, Ontario extended the release to some inmates near the end of their time served.

Other provinces such as British Columbia and Nova Scotia have also liberated prisoners. On Monday, Public Safety Minister Bill Blair said several hundred inmates have been released from federal prisons. Federal institutions hold those sentenced to two or more years; provincial institutions hold those serving shorter sentences, or awaiting trial.

There were 38,786 adults imprisoned in Canada as of the most recent tally from Statistics Canada. About 14,000 were in federal custody and the rest held provincially.

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The first urgent issue is remand, which accounts for 60 per cent of prisoners in provincial custody, or nearly 15,000 people. They are charged but unconvicted, and awaiting trial.

Bail is a right under the Charter of Rights and Freedoms but the justice system for years has leaned toward pretrial detention. Since the mid-2000s, there have been more people in remand in provincial jails than sentenced.

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Justice reformers have worked to reverse this ugly trend. A 2017 Supreme Court ruling underscored that release on a promise to appear should be the “default position.” Ottawa two years ago conceded the bail system was “overly punitive” and last year passed Criminal Code amendments that included “restraint” on the use of bail. These principles need to be reinforced, and carried out.

A bigger question is imprisonment itself. Canada puts convicted people behind bars at a lower rate than the United States, but at a far higher rate than most European countries. Why? The goal is not to coddle criminals or ignore crime. It’s to find better ways to help offenders – many of whom come out of difficult circumstances – become law-abiding citizens, find employment and live as good neighbours.

Instead of jail for lesser offenders, what about greater reliance on conditional sentences, such as home arrest with an ankle monitoring bracelet? What about sentences whose “punishment” includes the obligation to graduate from high school, get a postsecondary degree or apprentice in a trade?

Lastly, there is jail itself. Some people have to be held behind bars, but nobody should be subjected to our worst institutions. Consider the deplorable state of Ontario’s newest jail, the second largest in Canada, the Toronto South Detention Centre. One judge recently described conditions there as “Dickensian, regressive and inexcusable.”

Germany can be a model: fewer people jailed, for less time and in better conditions. And Germany gets better results, for less money. Savings could then be invested in alleviating root causes of crime.

Canada has the opportunity to rethink criminal justice, and to remake it.

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The pandemic has freed thousands of low-risk offenders – suggesting that the case for them being behind bars in the first place was weaker than widely believed. And on Tuesday, the federal government quietly abandoned its appeal of a court ruling banning the use of segregation – solitary confinement – for more than 15 days. In prison, the status quo is no longer an option.

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