Submissions to the Canadian Human Rights Commission

Justice Louise Arbour
“One must resist the temptation to trivialize the infringement of prisoners’ rights as either an insignificant infringement of rights, or as an infringement of the rights of people who do not deserve any better. When a right has been granted by law, it is no less important that such right be respected because the person entitled to it is a prisoner.”
Madam Justice Louise Arbour, 1996

Table of Contents

  1. The Special Report
  2. Background
  3. Five Key Issues
  4. Submissions to the CHRC
  5. Outcome & Follow Up

The Special Report


In January 2004, the Canadian Human Rights Commission (CHRC) released a special report entitled, Protecting Their Rights: A Systemic Review of Human Rights in Correctional Services for Federally Sentenced Women. The report underscored the 1996 recommendations of the Commission of Inquiry into Certain Events at the Prison for Women in Kingston for comprehensive change with respect to the manner in which the systemic discrimination experienced by women serving sentences of two years or more might be remedied and how the Correctional Service of Canada (CSC) might be held accountable.



Background


On International Women’s Day, March 8, 2001, the Canadian Association of Elizabeth Fry Societies (CAEFS), together with the Native Women’s Association of Canada (NWAC) and supported by 25 other equality-seeking groups, wrote to the Chief Commissioner of the Canadian Human Rights Commission (CHRC) to urge the CHRC to conduct a broad-based systemic review and issue a special report, pursuant to section 61(2) of the Canadian Human Rights Act, regarding the discriminatory treatment of marginalized, victimized, criminalized and institutionalized women in Canada. 

Key Areas of Concern:

    • Discrimination on the basis of disability that is experienced by federally sentenced women with cognitive and mental disabilities. A lack of appropriate placement options and treatment programs, re-training, classification as maximum security inmates, contributes to worsening the situation for the growing number of women with disabilities now in Canadian prisons. See:

The complaint launched by CAEFS and other national equality seeking groups, focuses on the systemic discrimination experienced by federally sentenced women. The named party responsible for that discrimination is the Government of Canada, and not merely the Correctional Service of Canada. The facts associated with the sheer numbers of women serving federal sentences, their demographics, particularly those with respect to race and disability; present a prima facie case of discrimination. Accordingly, it is the contention of CAEFS and other organizations that the onus falls on the Government of Canada, including the Correctional Service of Canada, to establish how they will address the discriminatory patterns evidenced by their own data and research.

The CHRC’s Consultation for the Special Report

Two years after the complaint, in January 2003, the CHRC distributed a consultation paper to organizations and individuals working on behalf of federally sentenced women. CAEFS carried out its own consultations and aided other non-governmental equality seeking organizations to prepare responses and policy submissions to the Commission. See Submissions to the CHRC section below for submissions of CAEFS and other Women’s Equality Seeking Groups.

Consultation Paper for the Special Report on the Situation of Federally Sentenced Women
Canadian Human Rights Commission – January 2003

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Five Key Issues

1. Racism in Canada’s Prisons for Women

The prison system is a microcosm of Canadian society and that means Indigenous women in prisons are subject to the same history of bias and inequality as Aboriginal peoples in open society.

Without a recognition of this discrimination and a dedicated approach to redressing the results of this discrimination, especially within the criminal justice and correctional systems the following situation will continue:

    • The over representation is all the more pronounced among prisoners classified as maximum security, where Aboriginal women usually represent anywhere from 40-60% of the maximum security population. More often than not, this is as a result of a classification system that penalizes them for social and community deprivations beyond their control.
    • Aboriginal women are 14% less likely to be released into the community on conditional release than are non-Aboriginal women. Job training programs and educational opportunities are seldom geared to the specific needs of Aboriginal women. See the submissions of the Native Women’s Association of Canada and CAEFS.
    • While there is a Healing Lodge for Aboriginal women serving federal prison sentences, but it only has a capacity of 30 women and there are generally 80-90 women in the federal prisons, so most Aboriginal women prisoners are precluded from accessing the Okimaw Ohci Healing Lodge. Also because of the racist results of the classification system, as many of the Aboriginal women are classified as maximum security prisoners. Many are now confined in the new segregated maximum security units in the regional women’s prisons, while others remain confined in segregated maximum security units in men’s prisons.

2. What’s Wrong with the Classification System

CAEFS’ believes that no useful purpose is served by assigning different security levels to federally sentenced women. 

It is a well-established fact that women prisoners pose very little risk to the community. Women are much more likely to harm themselves by self-mutilation, than to harm others. Nevertheless, CAEFS recognizes that current legislation requires CSC to classify each imprisoned woman. Until those laws are changed our remarks are set in that context.

    • The number of women who are classified as maximum security is far too great. The current system was designed for men and results in significant over classification of federally sentenced women.
    • Aboriginal women are disproportionately classified as maximum security, 41 % of federally sentenced women who are classified as maximum security women are Aboriginal, whereas Aboriginal women represent only 30 % of the total population of federally sentenced women, and less than 2% of the population of Canada.
    • Women are unfairly assessed according to social and personal disadvantages in their backgrounds over which they have no control. For example, if an individual is assessed as having been the victim of spousal abuse or was considered unemployed at the time of arrest, she will be identified as having a “need” in those areas. The greater the number of identified needs, the higher the resulting assessment of her risk and later security classification.
    • Women with mental health needs are too often categorized as maximum security, thereby denying them the supportive environment they need.
    • The “risk factors” used to assess probability of escape and the level of risk to the safety of the public cannot be reasonably applied. Escapes by women occur so rarely, the recidivism rate for women is much lower than that for men, and a much smaller percentage of the crimes committed by them are violent.
    • In the existing facilities, there is virtually no difference between the conditions of confinement in medium and minimum classification. Accommodation, program availability and access to the community are restricted to the medium level at best.
CAEFS’ Proposal:
    • A new classification system based on demonstrated behaviour and individual achievements within institutional settings. This would result in much lower classifications and many more community based sentencing and/or release options for women.
    • Women with mental health disabilities properly supported in and by community-directed services to help them receive the treatment needed.
    • Resources be allocated in accordance with those needs identified.

The Risky Business of Risk Assessment

3. How Prison Programming Fails Women

Training, educational and therapeutic programs do not meet the needs of the women in Canada’s prisons. Although it is clear the programs are not comparable in quantity, quality or variety to those provided to federally sentenced men, CAEFS believes it is not useful to make simple comparisons between programs for men vs programs for women.

Instead, the particular needs and interests of women prisoners must be examined to ensure substantial equality, and allow women prisoners to progress toward a successful re-integration into society.

    • The limited access to job training and educational programs directly interferes with the ability of women to meet the terms of their “correctional treatment plan”. As a result they frequently experience delays in obtaining all forms of conditional release, including parole.
    • For women with disabilities, there are even fewer training programs geared to their needs. Access to therapeutic counselling is very limited. Moreover there is a coercive nature to some of the therapeutic treatment offered. See the submissions of CAEFS and DAWN.

4. The Discrimination of Women with Disabilities

Historically, women have been over-represented in psychiatric facilities and under-represented in the prison system. However, with the closure of psychiatric institutions and increasingly overtaxed and under-resourced community based services, Canada is now witnessing a marked increase in the number of women with cognitive and mental disabilities who are being criminalized.

According to CSC research, women prisoners have a significantly higher incidence than the general population of mental disability including schizophrenia, major depression, substance use disorders, psychosexual dysfunction, and antisocial personality disorder. In addition, imprisoned women have a much higher incidence of a history of childhood sexual abuse and severe physical abuse than women in the general population. Among Aboriginal women, who are disproportionately represented in the federal prison system, 90% reported physical abuse and 61% reported sexual abuse.

    • Women are often coerced into “treatment” and may also be involuntarily transferred to segregated maximum security units in men’s prisons, and occasionally to psychiatric facilities in a manner which clearly interferes with their human rights and Charter protected rights at all levels, including those that are part of international human rights obligations and commitments.

Women with mental health problems are over-classified as maximum security prisoners and are frequently subjected to time in the segregation units. In spite of clear recommendations by Madam Justice Louise Arbour on the need for much more restricted use of administrative segregation, the Correctional Service of Canada has not accepted or implemented these recommendations.

    • CSC employs therapeutic models which CAEFS, along with mental health specialists, believe are inappropriate in a prison setting. The ability to make informed choices and freely consent to medical and/or therapeutic interventions is hampered by the prison environment. So much so, that some doctors refuse to work within prisons as they do not believe prisoners are provided with sufficient autonomy to make informed decisions about their medical and/or therapeutic treatment. Medical confidentiality is not ensured and women routinely stress the fact that correctional staff often refuse to allow them to consult in confidence with physicians and specialists when they do exit the prison for special medical treatments.

See the DisAbled Women’s Network (DAWN) of Canada’s Submission to the CHRC.

5. The Urgent Need for Independent Reporting and Oversight

There have been repeated calls for correctional accountability that have gone unheeded. These calls for accountability were reinforced by Madam Justice Louise Arbour in her 1996 report. Indeed, the Office of the Correctional Investigator, the Task Force on Federally Sentenced Women and many previous reports and Commissions of Inquiry, not to mention the reports of the Auditor General and the Parliamentary Public Accounts Committee, have called for increased accountability within corrections and between the Correctional Service of Canada and other external bodies.

    • CAEFS recommends a mechanism for judicial oversight of decisions that impinge further upon the liberty interests of prisoners, and that long term segregation, in particular, be reviewable by the courts.
    • Along with an external governance body, CAEFS recommends the creation of an office of an Inspector General of Women’s Prisons, mandated and resourced to conduct annual audits of adherence to legislation and policy within each of the regional prisons, such audits to be submitted to the Minister of Public Safety and the Standing Committee on Justice and Human Rights.
    • A Commissioner of Women’s Corrections should be appointed to govern all matters related to federally sentenced women, including the supervision of the wardens of the regional prisons and the Kikawinaw of the Healing Lodge. The Commission office would be independent of CSC, reporting directly to the Minister of Public Safety.
    • A fund to allow women in prison to access legal aid services to address issues related to their conditions of imprisonment and conditional release is needed to ensure that their rights and entitlements are realized.

See CAEFS’ Submission to the CHRC Inquiry regarding accountability.

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Submissions to the CHRC

Original Complaint Letter

On March 8, 2001, the Canadian Association of Elizabeth Fry Societies (CAEFS), with the support of 26 national and international equality-seeking, women’s and human rights organizations, approached the Commission with a complaint about the discriminatory treatment of marginalized, criminalized and imprisoned women, particularly Indigenous women and women with disabling mental health issues.

CAEFS’ Response to the CRHC’s Consultation Paper on the Special Report

In April 2003, CAEFS submitted a response to the CHRC’s Consultation Paper as part of the Commission’s review of the 2001 complaint.

Women’s Equality Seeking Groups Urge The CHRC to End The Systemic Discrimination of Women Prisoners

On May 14, 2003, CAEFS and other women’s equality seeking organizations held a press conference. The organizations urged the Canadian Human Rights Commission to act to end the Canadian government’s human rights violations and systemic discrimination against criminalized women.

Press Conference Announcement: Prisons are a Failed Experiment [Especially for Women]

Press Conference Media Releases:

Submissions of Women’s Equality Seeking Groups to the CHRC May 2003 Inquiry

In May 2003, CAEFS and other  organizations presented to the CHRC on Parliament Hill.

  • Introduction to Submissions | Listen Hosted on YouTube
  • Closing Comments | Listen Hosted on YouTube
Submissions of the Canadian Association of Elizabeth Fry Societies:
Submissions of Other Women’s Equality Seeking Groups:
Amnesty International Canada
Canadian Federation of University Women
Federation of Legal Community Centres
DAWN: DisAbled Women’s Network of Canada
Joint Effort
NAWL: National Association of Women and the Law
NCWC: National Council of Women of Canada
NWAC: Native Women’s Association of Canada
Sisters Inside (Australia)
Strength in Sisterhood (SIS) Society
West Coast Prison Justice Society
LEAF: Women’s Legal Education and Action Fund
National Organization of Immigrant and Visible Minority Women
  • National Organization of Immigrant and Visible Minority Women’s Oral SubmissionListen Hosted on YouTube

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Follow-up

CAEFS’s Response & Follow-up:

More Promises to Women Not Kept

The Canadian Association of Elizabeth Fry Societies (CAEFS), the Native Women’s Association of Canada (NWAC) and Strength in Sisterhood Society held a press conference on March 8, 2005.

    • More Promises to Women Not Kept
      Press Release – March 8 2005 (Ottawa)
    • More Promises to Women Not Kept Press Conference Listen Hosted on YouTube
    • Slideshow Accompanying Press Conference Watch Hosted on YouTube

The Human Rights in Action Project

The Human Rights in Action Project (HRIA) is one of many collaborative efforts of CAEFS and other women’s equality seeking groups. The HRIA project sought to ensure the implementation of the recommendations of the Arbour Commission and the CHRC Report. The Project was developed to provide practical tools and training for women inside and to assist allies on the outside to address advocacy issues in the prisons for women. The project also focused on the urgent need to develop community release options for all women, especially Aboriginal women exiting federal prisons. For more detailed information and background, see the CAEFS’ Human Rights in Action Project Page.

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