The COVID-19 pandemic has disproportionately impacted many demographics, and correctional facilities are no exception. It is common knowledge that COVID-19 has created a particular problem with how to prevent the spread of coronavirus in prisons and jails. At 72 years old, Mr. Latham, currently an inmate at the Bowden Institution, a federal medium security prison in Alberta, filed a motion seeking for immediate release from prison under subsection 24(1) of the Canadian Charter of Rights and Freedoms.  Mr. Latham has been in jail for 50 years after being convicted for a series of violent sexual offences in the 1970s and 1980s. Mr. Latham argues that remaining in prison violates sections 7, 9 and 12 of the Charter because of his COVID-related sensitives, specifically his advanced age and pre-existing medical conditions (heart and lung issues), leading to a heightened risk of succumbing to coronavirus.  Mr. Latham contends that Bowden Institution is not adequately equipped to protect someone with his advanced age and medical background from COVID-19 because of the high number of inmates in the institutional unit, limited control over the food supply, and lack of social distancing capabilities in common areas.
The court ultimately dismissed Mr. Latham’s motion seeking immediate release from the Bowden Institution. The court looked at Mr. Latham’s past of repeatedly filing motions to be released from prison, to the point where he was declared a “vexatious litigant” by the Court of Queen’s Bench of Alberta. Upon considering Mr. Latham’s submission to be released, the Parole Board concluded in 2019 that he may reoffend if released and was deemed “unmanageable in the community.”  However, the court recognized that the confined design of prison makes social distancing difficult for inmates, especially in shared sleeping and dining spaces.  It has also been recognized that older members of society and individuals with underlying medical conditions are at a higher risk of contracting coronavirus, under which Mr. Latham falls into both categories. Nonetheless, the court concluded that Mr. Latham’s designation as a dangerous offender because of his prior violent sexual offences and the fact that he is serving an indeterminate sentence, outweighs his age and medical concerns related to contracting COVID-19 in prison.
As for subsection 24(1) of the Charter which allows the court to create an appropriate remedy against unconstitutional government actions after a Charter violation has been proven, in our case, the court decided that Mr. Latham has not established a breach under sections 7, 9 or 12 of the Charter. The fact that Mr. Latham is being held at the Bowden Institution during the COVID-19 pandemic and may also be particularly vulnerable to contracting COVID-19, on its face, is not enough to constitute a Charter breach. The court left some leeway by saying that the possibility is open to claiming a Charter violation under similar conditions, but more evidence is required. In this case, the court determined that Mr. Latham did not provide enough evidence regarding Bowden Institution’s insufficient health and safety measures during the pandemic. Mr. Latham would have to bring forward evidence showing certain factors, such as lack of social distancing measures, inadequate cleaning protocols, or inaccessibility to hand sanitizers, are in place in order for the courts to determine if there has been a Charter breach. As a whole, the court concluded that Mr. Latham did not put forward enough evidence to prove he is being deprived of his liberty or security contrary to the principles of fundamental justice, or is being subjected to cruel and unusual treatment or punishment, or that he is being arbitrarily imprisoned, thus dismissing Mr. Latham’s motion. 
This blog post was written by a CCLA-PBSC Rights Watch Student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.