CORRECTIONAL INVESTIGATOR'S RESPONSE
to the Canadian Human Rights Commission's
Consultation Paper for the Special Report on
the Situation of Federally
Sentenced Women

Overall Recommendation

Women's Corrections, with the on-going transfer of female inmates from the maximum security units in male penitentiaries to the Regional Facilities, is again experiencing significant change. The current state of Women's Corrections at the federal level must be viewed within the context of the "vision for change" provided more than a decade ago by the Correctional Service's Task Force on Federally Sentenced Women (Creating Choices, 1990). The central theme of Creating Choices was, "that women's correctional needs are profoundly different from men's, and that to do justice to the aims and purposes of a sentence imposed on women, the correctional system must be gender sensitive" (Justice Arbour, 1996).

The 1995 Arbour Commission of Inquiry into Events at the Prison for Women provided both an impetus and a forum for the Correctional Service to commit to a set of operational principles for the future management of Women's Corrections. Justice Arbour's Report of April 1996, in addition to passing extensive comment on the Correctional Service's "disturbing lack of commitment to the ideals of justice", provided a series of specific recommendations designed to ensure that future correctional practices would meet the needs of women offenders.

The initial response to the Arbour Report was positive. The Solicitor General in June of 1996 accepted the Report's central premise; "that there must be respect for the rule of law by the Correctional Service in the way it carries out its responsibilities". The Minister announced that a Deputy Commissioner of Women's Corrections would be appointed and the "recommendations for related organizational and program changes" would be implemented. A number of the Report's recommendations were identified at the time as "requiring further detailed study to determine the most effective means of achieving the objective that underlies the recommendation". These recommendations were to "be dealt with as part of a final response plan".

The Acting Commissioner of Corrections, that same month, stated that the "rule of law is fundamental and paramount in corrections and that women's corrections is a top priority for the Service, requiring unique insights, efforts and approaches".

Within two months of these initial responses to Justice Arbour's Report, a decision was taken to transfer women from the Regional Facilities to maximum security units in men's penitentiaries. This decision which was roundly criticized by this Office and others, and was characterized at the time by the Correctional Service as a "temporary measure".

Seven years later:

• some women continue to be housed in maximum security units within male penitentiaries;
• the organizational and program changes related to the appointment of the Deputy Commissioner for Women's Corrections to support the "separate stream" for Women's Corrections have not been implemented; and
• there has been no "final response plan" issued by Correctional Services on Justice Arbour's Report.

The Arbour Commission of Inquiry was a very public and very inclusive process. The Report was a landmark for corrections in this country. Its findings and recommendations focussed our attention not only on the potential for Women's Corrections but also on the requirement for openness, fairness and accountability in correctional operations.

The response to Justice Arbour's Report by the Correctional Service has been anything but public and inclusive. The clear "vision for change" of a decade ago is clouded. The impact of the top priority ascribed to Women's Corrections in 1996 is open to serious question.

The current movement of women from the men's penitentiaries to the Regional Facilities is presenting the Service with a number of immediate and long-term challenges. To meet these challenges, there is a need for a refocusing on both the potential for Women's Corrections and the requirement for openness, fairness and accountability. The Office of the Correctional Investigator continues to recommend that this refocusing begin with:

• the completion of a "final response plan" by the Correctional Service on Justice Arbour's recommendations without delay;
• immediately followed by the distribution of the response plan to stakeholders (government and non-government) ;
• immediately followed by the initiation of a public consultation process on the "final response plan"; and
• the issuing of a final report on the status of Justice Arbour's recommendations by April 2003.

As background on the issues detailed in the CHRC Consultation Paper, we have attached as Appendix A, our Submission to the Arbour Commission of Inquiry.

We as well refer you to the sections that deal with Women Offender Issues in our 2000-2001 and 2001-2002 Annual Reports.

Response to Key Issue 1 : Programming

Over the years, the Office of the Correctional Investigator has consistently received complaints from federally sentenced women (FSW) regarding programming provided by the Correctional Service of Canada (CSC). More specifically, FSW have consistently complained about the lack of timely access to appropriate individualized programming that will assist them in reintegrating into society at the earliest possible opportunity. Our investigations over the years have consistently found that :

• correctional plans are often not completed within the mandated timeframes, which hinders a woman's ability to access programming (you need the plan to get the program);
• long waiting lists exist for core programming and for employment programs;
• women can rarely access long-term individualized psychological counseling - even if it has been identified in their correctional plan;
• women often waive their right to go before the National Parole Board for a conditional release hearing because they were unable to fulfill the requirements of their correctional plan due to having been wait-listed for programming;
• few opportunities for meaningful and marketable employment exist within women's prisons.

In the last two years, this Office has received complaints from 18 individual women on this issue. More telling, however, is the fact that this issue has consistently been raised by Inmate Committees at 8 out of 10 of the women's prisons that fall under the OCI's jurisdiction. The lack of timely access to appropriate individualized programming for FSW is a systemic problem that clearly impacts on women's ability to quickly and successfully reintegrate into the community.

Response to Key Issue 2 : Classification of Female Offenders

In the last two years, this Office has received complaints from 20 different women regarding their security classification. With respect to security classification, this Office is concerned with :

1. the appropriateness of the tools that are currently used by the Correctional Service to determine a women's security classification;
2. the Correctional Service's policy which requires offenders serving a minimum life sentence for first or second degree murder to be classified as maximum security for at least two years of federal incarceration.

The OCI and other stakeholders have taken the position that the current classification system does not accurately assess the risks and needs of women offenders. The current tool translates social disadvantage into pathologies. The system also designates a disproportionate number of women with significant mental health needs as maximum security. Furthermore, the process results in a huge over representation of Aboriginal women being classified as maximum security. It is our opinion that the current classification process is totally inappropriate for Aboriginal offenders.

Two years ago, the Service conducted a qualitative review of existing classification tools and came to the conclusion that it was indeed appropriate to use the existing classification system on women. This Office continues to have serious concerns about the use of a classification system that has been designed for men, that is designed primarily to assess public risk, and which does not meet the unique and individual needs of female offenders. It is recognized that the Correctional Service has projected that the number of federally sentenced women will increase significantly by 2004. In addition, the newly opened secure facilities are already very near full capacity. If the Correctional Service continues to apply its existing classification system on women, this Office has serious concerns that the Service will be unable to accommodate all of the maximum-security women within the regional facilities, and a result, may be forced to return some women to the men's prisons once again.

With respect to the CSC policy that condemns "lifers" to serve their first two years in a maximum-security setting, it is obvious that this change will have a serious effect on women who are sentenced to life terms. The effect of being housed in a strictly controlled and, to say the least, stressful maximum-security environment will produce special challenges and disadvantages for women -- especially those that may be young, Aboriginal, older or disabled.

This is all the more the case when you consider that the frequency of review of these women's security classification has also been revised under the new policy. This will occur every two years, throughout their sentences, contrary to the annual reviews that will take place for other offenders.

As noted in last year's Annual Report, perhaps the most prominent casualty of the policy is the Service's avowed commitment to compliance with the law. It is not simply that this policy flies in the face of the CCRA requirement to determine the classification and housing of offenders on an individual, case-by-case basis, according to a whole range of factors - not simply the offence committed. The policy patently ignores the statutory requirement of the least restrictive custody and introduces the goal of retribution to a legislative scheme that specifically disallows such a consideration. This Office has heard, directly and indirectly, numerous complaints about this policy from both inmates and staff. We continue to believe that the policy of adjusting the Custody Rating Scale to ensure that offenders serving life sentences for first- and second-degree murder are placed in maximum security penitentiaries for at least two years, should be immediately rescinded.

Response to Key Issue 3 - Minimum Security Facilities

As of May 13, 2003, there were 101 federally sentenced minimum-security women incarcerated in CSC facilities (figure does not include the 6 women at Burnaby Correctional Centre for Women). Isabel McNeill House in Kingston can accommodate 13 women classified as minimum security. All other federally sentenced women that are classified as minimum security reside within the regional women's prisons, which, inarguably, are medium security environments. The net result is that women classified as minimum security are not only being housed in more restrictive environments than necessary, but they will eventually move from a medium security environment to the community -- with little to prepare them for successful reintegration. This is not the situation with male offenders in this country. It is patently discriminatory.

Response to Key Issue 4 - Community Release Facilities and Services

The response to this question is simple : there are not enough appropriate community release facilities and services in Canada to meet the varying needs of women offenders. This situation is even more bleak for those women who require intensive mental health services. It is clear that male offenders have far more access to community facilities/services than women do, and that this situation can only be characterized as discriminatory.

Mixed Gender Facilities

Mixed gender facilities are an option for federally sentenced women, but, we believe, they must be one of many options available to women on conditional release - and never the only option. There is an obvious need for the Correctional Service of Canada to ensure adequate community resources are available to accommodate women offenders on community release.

With respect to the release of Aboriginal women prisoners under sections 81 and 84 of the Corrections and Conditional Release Act, this Office is acutely aware of the fact that very few Aboriginal women are ever conditionally released to the care of their communities. We have been told by some Aboriginal women that they were either unaware of this section of the CCRA, and/or their Case Management Team was not providing the necessary support and information to assist them with making this possibility a reality.

At the present time, this Office is not aware of a single woman that is currently being supervised under section 84 of the CCRA. This speaks for itself.

The Office of the Correctional Investigator rarely receives complaints from women residing in community release facilities. We believe that the majority of offenders in community settings are aware of the OCI's existence and services, given their earlier passage in institutions. That said, this Office does distribute brochures and posters to all parole offices and Community Correctional Centres across Canada.
When a woman has contacted this Office from a community facility, it has usually been for one of the following reasons :

• she was dissatisfied with her conditions of parole
• she was dissatisfied with her community parole officer.
• she was concerned that her conditional release may be suspended and that she may be returned to prison.

Response to Key Issue 5 - Health Issues

In the last two years, 89 different women filed one or more complaints related to Health Care with this Office. These women were concerned with one or more of the following:

• their lack of access to health care (long waiting lists to see a physician or specialist)
• the quality of the health care provided by the institution
• medical decisions that were made by the institution
• lack of appropriate mental health services.

Involuntary Transfer

This Office maintains the position that the policy of involuntarily transferring women offenders to psychiatric facilities for the purpose of risk assessment should be rescinded. It is our opinion that transfers of this nature and for this purpose violate s.88 of the Corrections and Conditional Release Act, which provides that an inmate cannot be treated without their informed consent. Compelling women to undergo psychiatric assessment without consent cannot be considered a legitimate correctional objective. For further details on this issue, please see Involuntary Transfer and Consent to Mental Health Interventions in our 2001/2002 Annual Report.

Women with Mental Health Needs

This Office receives daily phone calls from women who are struggling to deal with their serious mental health issues while "in the care of" the Correctional Service of Canada. Clearly, this speaks to the Correctional Service's inability to meet the special needs of this population. This Office agrees with the position put forth by CAEFS and DAWN, namely, that women with serious mental health needs would be more appropriately assisted within their own communities, and not within the walls of the Correctional Service of Canada.

Response to Key Issue 6 - Use of Male Guards

There are currently men in front line positions at all of the regional facilities for women, including Edmonton, and all positions are open to men. For similar reasons outlined by CAEFS in their response to CHRC's discussion paper, the Office of the Correctional Investigator maintains the position that men should not be hired to be the primary support for women in their day to day living situation.

As will be discussed in the next section, the OCI does not believe that an effective and timely mechanism exists for incarcerated women to report problems of sexual, racial or other types of harassment, abuse or assault. In addition, the Correctional Service has to date not responded to the 2000 Cross Gender Monitor Report which recommended :

It is recommended that males should not be permitted to be front line Primary Workers. This would include not being permitted to act in a security function with respect to living and segregation units, cell extraction teams regardless of time of day, and escorts of any kind.

Response to Key Issue 7 - Redress Procedures and Accountability

This Office has had a long-standing concern that prisoners lack an effective and timely remedy for unlawful acts of CSC staff, and in particular, sexual harassment. The problem arises from the power relationship between inmates and staff, and especially women inmates and male staff in the penitentiary setting. It is well known that federally sentenced women have experienced abusive relationships, often going back to childhood, and that the legacy of these relationships can affect women offenders' attitudes toward male staff and their expectation of fair treatment from them.

Many women have come to believe that the culture of CSC involves denial of criticism, resistance to outside influence (especially by prisoners and their families or associates) and fear of yielding authority and control by upholding offender complaints. There exists a very jaundiced view by offenders on the effectiveness of the current grievance and complaint system. In addition, the timeliness of responses remains a serious area of concern.

It is our experience that women prisoners often perceive staff members as:

• mutually supportive in opposing offender attempts to reduce staff authority or even to demonstrate that offenders can successfully contest staff decisions or conduct
• likely to share information on inmate complaints with the accused staff member(s)
• being able to unfairly the processing and outcomes of complaints against themselves or co-workers.
• being able and willing to take reprisals against inmates who lodge complaints against staff - the more serious the allegation, the more serious the reprisal.
• unwilling to review and decide complaints against staff in a considered, objective fashion, bringing to bear effective investigative skills and knowledge
• unwilling to manage complaints systems to make them effective and to provide accountability for improper review of complaints

While aware of their rights in terms of the offender grievance and other processes, for the reasons outlined above, it is our experience that many women are very reluctant to use the internal redress system. We have also found that Aboriginal women and women with mental health needs do not tend to access the current internal redress system. The internal system, as it is currently designed and functioning, does not reasonably take into consideration the socio-cultural and historic realities of these populations, and as such does not meet the needs of these women.

Sexual Harassment Policy

It is well documented that victims of harrssment in any context are very reticent to complain and are suspicious of recourses that they believe may disappoint, embarrass or re-victimise them. This is even more the case when harassment is sexual in nature. This Office was very concerned when, on November 13, 2002, the Correctional Service introduced a new policy with respect to harassment. It is patent to this Office, and to any reasonable reader, that the new policy abandons almost all of the principles set out by Madame Justice Arbour. The policy is also void of accountability, transparency, training, objectivity, independence, administrative fairness and ongoing oversight. Accordingly, we find that this new CSC policy is unreasonable and reflects none of the principles of effective, timely review included in most harassment policies, including that of the Treasury Board, and should be immediately reviewed and revised. Attached as Appendix B is our Position Paper on Sexual Harassment.

Contacting the Correctional Investigator

All women may contact the Correctional Investigator. The Office has a toll free line for emergencies, which operates on weekdays between the hours of 9:00 a.m and 4:00 p.m. Eastern Time. Outside regular office hours (evenings, weekends and statutory holidays), a message may be left on our answering machine. In non-emergency situations, women are encouraged, when possible, to submit a complaint in writing to our Office. Furthermore, the Co-ordinator for Federally Sentenced Women's Issues makes regular visits to each of the women's institutions. She meets with women to discuss any individual issues, and also meets with the various prisoner-led institutional groups to discuss any general areas of concern.

Information Provided by CSC

Information on the numbers and types of internal complaints against the Correctional Service have been provided to the Correctional Investigator Service in the past, however, this data is often one to two years old by the time it is received, and it is generally devoid of any reasonable analysis. The CSC does provide some information regarding corrective action taken, however, it rarely, advises what corrective action has been taken when a complaint has been made against a staff member.

OCI Staff and Financial Resources

The OCI recently received funds to hire a Co-ordinator for Federally Sentenced Women. In the last 2 fiscal years (April 1, 2001 to March 31, 2003), this Office received 870 contacts from women prisoners. It is clear that :

• given the distinct needs of women prisoners,
• the number of women's prisons,
• the distance between the women's prisons,
• the sheer number of contacts made with this Office, and
• the current state of women's corrections in Canada,

it is extremely challenging for one person to effectively address the concerns raised and to ensure that the rights of women offenders are respected.

OCI Reporting to Parliament

As detailed in our 1992/1993 Annual Report, the reporting relationship of the Correctional Investigator to the Solicitor General of Canada, given that Minister's direct responsibility for Corrections, has been an ongoing point of debate within the corrections field. During the public consultations leading to the finalization of the Corrections and Conditional Release Act many, including this Office, advocated for the establishment of direct legislative reporting.

As indicated below, in November 2000, the Parliamentary Sub-Committee on the Corrections and Conditional Release Act recommended a more direct reporting relationship between our Office and Parliament :

RECOMMENDATION 28

The Sub-committee recommends that section 192 and section 193 of the Corrections and Conditional Release Act be amended so that the annual and special reports of the Correctional Investigator are submitted simultaneously to the Minister and to Parliament.

RECOMMENDATION 29

The Sub-committee recommends that section 192 and section 193 of the Corrections and Conditional Release Act be amended so that the annual and special reports of the Correctional Investigator are automatically referred to the standing committee of the House of Commons responsible for considering the activities of the Office of the Correctional Investigator.

This Office is supportive of the Sub-Committee recommendations, which are designed to provide a more direct and effective reporting relationship to Parliament.

Post-scriptum

The above-mentioned appendices are available in hard copy or electronic copy by contacting our office at (613) 990-2692, or toll-free at 1-877-885-8848, or by e-mail at org@oci-bec.gc.ca