Commission of Inquiry
into certain events at the
Prison for Women in Kingston
© Public Works and Government Services Canada, 1996
All rights reserved
Printed and bound in Canada
Catalogue No. JS42-73/1996E
ISBN 0-662-24355-2
Publié aussi en français sous le titre : Commission d'enquête sur certains événements
survenus à la Prison des femmes de
Kingston.
Available in Canada through: Canada Communication Group
- Publishing
Ottawa, Canada, K1A 0S9
CANADIAN CATALOGUING IN PUBLICATION
DATA
Commission of Inquiry into Certain Events at the Prison for Women
in Kingston (Canada)
Commission of Inquiry into certain
events at the Prison for Women in Kingston
Issued also in French under title: Commission d'enquête
sur certains èvènements
survenus à la Prison des femmes de Kingston.
Commissioner: The Honourable Louise Arbour. ISBN
0-662-24355-2
Cat. no. JS42-73/1996E
1. Reformatories for women - Ontario
- Kingston. 2. Prison violence - Ontario
- Kingston. 3. Prison discipline - Ontario
- Kingston. 4. Women prisoners - Civil rights
- Ontario - Kingston. 5. Correctional institutions
- Canada - Management. I. Arbour, Louise, 1947- .
II. Title. III. Title: The Prison for Women in Kingston.
HV9025.C65 1996
365.9713'72 C96-980136-X
Care has been taken to trace the ownership of copyright material in the
text including tables and figures.
The Honourable Herb Gray, P.C., M.P. Solicitor General of Canada Sir
Wilfrid Laurier Building 340 Laurier Avenue West Ottawa, Ontario K1A 0P8
Dear Minister:
By Order in Council PC 1995-608 dated April 10, 1995, I
was appointed Commissioner to investigate and report on the state and management
of that part of the business of the Correctional Service of Canada that pertains
to the incidents that occurred at the Prison for Women in Kingston, Ontario,
beginning on April 22, 1994. I have the honour to submit the attached report in
both official languages.
Respectfully submitted,
The Honourable Louise Arbour Commissioner
Commissioner The Honourable Louise Arbour
Commission Counsel Patricia D. S. Jackson
Administrator Sheila-Marie Cook
Associate
Commission Counsel Chief Investigator Guy Gournoyer Dennis Olinyk (Ontario Provincial Police)
Assistant to
the Commissioner and to Commission Counsel Karen McFarlane
Research &
Policy Advisors Tammy Landau, PhD.
Kelly Hannah-Moffat
Legal
Services Jana Mills Cheryl Waldrum
Criminology
Research Anne-Marie Singh Marnie Crouch Sandra
Hargreaves
Investigators (Ontario Provincial Police) Julie Cyr Jenny
Zapotoczny Valerie Baun Sylvie Côté
Evidentiary
Document Control Unit Deborah Anne
Whittames Barb Fiorentino Sean Lytle Leslie Wake
Administrative
Services Fern Anes Melissa Jarrett Angie
McWaters
Registrar Joyce Ihamaki
Kingston
Hearings Site Elizabeth Rolland Suzanne Schryer-Belair
Communications
Annette Snowdon Gillian Sadinsky
Editor -
English David Redgrave
Editor -
French Nicolas Joly
Commission of
Inquiry into certain events at the Prison for Women in
Kingston
Terms of
Reference
Preface
The Inquiry
Process
Glossary
Abbreviations
PART I THE
EVENTS AT THE PRISON FOR WOMEN
1. INTRODUCTION
1.1 The
Structure and Organization of the Correctional Service of Canada
1.2 The
Organization of the Prison for Women
1.3 The
Physical Layout of the Prison for Women
1.4 Daily Life
in the Prison for Women
1.5 The
Correctional Investigator
1.6 Other
Organizations
1.7 The
Correctional Context: Creating Choices
2. FACTUAL
FINDINGS AND CONCLUSIONS WITH RESPECT TO THE INCIDENTS UNDER
INVESTIGATION
2.1 Overview
Chronology
2.2 April 22,
1994
2.3 The
Segregation Unit at the Prison for Women, April 22-26, 1994
2.4 The Strip
Search of April 26-27, 1994
2.5 The Body
Cavity Search on April 27, 1994
2.6 Transfers
to the Regional Treatment Centre
2.7 Board of
Investigation
2.8 Segregation
Post-April 26, 1994
2.9 The
Complaint and Grievance Procedure
2.10 The
Correctional Investigator
2.11 Documents
2.12 Measuring
CSC's Performance Against its Mission Statement
PART II POLICY
ISSUES
3. GENERAL
CORRECTIONAL ISSUES
3.1 Developing
a Culture of Rights
3.2 Developing
an Effective Sanction
3.3 Managing
Segregation
3.4 Increasing
Accountability in Operations
4. WOMEN'S
ISSUES
4.1 Federally
Sentenced Women - A Current Profile
4.2
Cross-gender Staffing
4.3 Aboriginal
Women and The Healing Lodge
4.4 The Future
of Women's Corrections
PART III THE
ROOTS OF CHANGE: AN HISTORICAL PERSPECTIVE
5. HISTORY OF
THE FEDERAL WOMEN'S PRISON
5.1 The Early
Years
5.2 Women
Prisoners and Their Rights to Fair and Equitable Treatment
5.3 Conclusion
PART IV -
SUMMARY OF RECOMMENDATIONS
Endotes
APPENDICES
A. CONTRACTORS
B. WITNESSES AT
THE HEARINGS
C. PARTICIPANTS
IN THE ROUNDTABLES
D.
CONSULTATIONS BY THE COMMISSIONER AND STAFF
E. RULING ON
APPLICATIONS FOR STANDING
E. RULING ON
APPLICATION FOR STANDING
F. RULES OF
PROCEDURE AND PRACTICE
G. INTERVENOR
FUNDING: ORDER IN COUNCIL AND SCHEDULE "A" GUIDELINES
H. SAMPLES OF
UNDERTAKINGS
I. SAMPLES OF
S. 13 NOTICES
List of
Illustrations
Figures
Figure 1 The Correctional Service of Canada
Organization - Part I
Figure 2 The Correctional Service of Canada
Organization - Part II
Figure 3 2nd Floor Layout Prison Cells
Figure 4 Mezzanine Layout Prison Cells
Plates
Plate 1 Segregation Unit upper and lower
tier of Dissociation side
Plate 2 Upper tier Dissociation side
Plate 3 Interior view of a cell
Plate 4 Exterior view of a cell
Plate 5 Cell with heavy metal treadplate
Plate 6 Cell with heavy metal treadplate
Tables
Table 1 Persons Charged by Gender Selected
Incidents, 1994
Table 2 Sentence Length of Incarcerated
Federally Sentenced Women
Table 3 Current Region & Institution of
Incarcerated Federally Sentenced Women
Table 4 Offences of Federally Sentenced
Women in Custody
Terms of Reference
HIS EXCELLENCY THE GOVERNOR GENERAL IN
COUNCIL, on the recommendation of the Solicitor General of Canada,
is pleased hereby.
1. pursuant to Part II of the Inquiries Act,
to authorize the Solicitor General of Canada
(a) to appoint, by Commission under the
Great Seal, the Honourable Louise Arbour of Toronto, Ontario, a
judge of the Court of Appeal for Ontario, as a commissioner to
investigate and report on the state and management of that part of
the business of the Correctional Service of Canada that pertains to
the incidents that occurred at the Prison for Women in Kingston,
Ontario, of the Correctional Service of Canada thereto, in
particular
(i) the measures in place at the Prison for
Women in Kingston, Ontario, in April 1994 to respond to incidents,
(ii) the adequacy and appropriateness of the
actions and decisions taken in relation to the seriousness of the
incidents that occurred,
(iii) the deployment of an all-male
emergency response team, the mandate that was given to the team and
the appropriateness of the team's conduct during its involvement in
the incidents that occurred, and
(iv) the subsequent confinement in
administrative segregation of the inmates concerned, the
reasonableness of their treatment while in segregation and the
duration of the segregation;
b) to authorize the Commissioner
(i) to adopt such procedures and methods as
she may from time to time deem expedient for the proper conduct of
the inquiry,
(ii) to sit at such times and at such places
in Canada as she may from time to time decide and to have complete
access to personnel and information in the Correctional Service of
Canada and the Department of the Solicitor General and adequate
working accommodation and clerical assistance, and
(iii) to engage the services of such staff
and technical advisors as she deems necessary or advisable and the
services of counsel to aid and assist her in the inquiry, at such
rates of remuneration and reimbursement as may be approved by the
Treasury Board; and
c) to direct the Commissioner
(i) to make independent findings of fact
regarding the incidents that occurred, in view of different
conclusions in the two reports,
(ii) to recommend improvements, as may be
required, to the policies and practices of the Correctional Service
of Canada in relation to such incidents,
(iii) to report in both official languages
to the Solicitor General of Canada by March 31, 1996, and
(iv) to deposit the records and papers of
the Commission with the Solicitor General of Canada as soon after
the conclusion of the inquiry as is reasonably possible; and
2. pursuant to section 56 of the Judges Act,
to authorize the Honourable Louise Arbour of Toronto, Ontario, a
judge of the Court of Appeal for Ontario, to act as Commissioner.
Preface
The history of
women and crime is spotted with opportunities most of which have
been missed. We hope that history will not dictate our future.1
The incidents that gave rise to this inquiry
could have gone largely unnoticed. Until the public viewing of a
videotape which shed light on part of these events, and the release
of a special report by the Correctional Investigator in the winter
of 1995, the Correctional Service of Canada had essentially closed
the book on these events.
This was perceived as, by far, not the most
serious series of events to have taken place in a Canadian
penitentiary. Sadly, that is probably true. At the Prison for Women,
loss of life and self-mutilation are among the many tragedies that
occur, and that are largely unknown to the Canadian public.
However, this inquiry was concerned not only
with what happened at the Prison for Women in 1994, but with the
response of the Correctional Service of Canada to these events. The
shortcomings that have been revealed in the course of this inquiry
are, in my opinion, of the most serious nature. Corrections is the
least visible branch of the criminal justice system. Occasions such
as this, where its functioning is brought under intense public
scrutiny, are few and far between. This may explain the discomfort
of Corrections officials in handling this level of public attention.
The lack of public scrutiny is in stark contrast to accountability
processes in the law enforcement and judicial branches of the
criminal justice system. Through hundreds of criminal trials and
appeals, systemic shortcomings and individual performances of police
officers, prosecutors and judges are examined publicly in a robust
adversarial fashion.
Anyone familiar with criminal law
enforcement, and with the prosecutorial and trial processes, would
identify the presumption of innocence as the principle that animates
the many rights granted by law to a person charged with a criminal
offence. The risk of convicting an innocent person is not one which
we would assume lightly.
A fair criminal process produces reliable
convictions and, as a result, the management of a custodial sentence
does not have to be plagued with uncertainties about the legitimacy
of the enterprise. However, even though the presumption of innocence
is displaced by the conviction, in the imposition of punishment, all
authority must still come from the law. Parliament authorizes the
imposition of certain sentences; the courts impose them and
corrections officials implement the court orders. A guilty verdict
followed by a custodial sentence is not a grant of authority for the
State to disregard the very values that the law, particularly
criminal law, seeks to uphold and to vindicate, such as honesty,
respect for the physical safety of others, respect for privacy and
for human dignity. The administration of criminal justice does not
end with the verdict and the imposition of a sentence. Corrections
officials are held to the same standards of integrity and decency as
their partners in the administration of criminal law.
My objective in bringing forward
recommendations on various aspects of corrections that have been
touched upon by this inquiry is to assist the correctional system in
coming into the fold of two basic Canadian constitutional ideals,
towards which the rest of the administration of criminal justice
strives: the protection of individual rights and the entitlement to
equality.
Through its recent initiatives, the
Correctional Service has recognized that decades of neglect and
ill-adapted correctional policies borrowed from models designed for
men, have failed to produce the substantive equality to which women
offenders are entitled. Women's corrections should be the flagship
of the Correctional Service for many reasons. For one thing, the
momentum for reform is already in place and it merely needs to be
sustained and expanded. The chances of success for a progressive
correctional experiment are highest in women's corrections. Very few
women commit crimes. This should be a badge of honour and an
entitlement to reward, rather than a recipe for neglect and
deprivation.
There are presently in Canada approximately
320 women in custody serving a sentence of imprisonment of over two
years. As of April of 1994, there was only one federal penitentiary
to detain them: the Prison for Women in Kingston, Ontario. The
Prison for Women houses some 142 prisoners. The others are kept in
provincial prisons. There are some 14,500 men serving a sentence of
over two years. They are housed in any one of 44 institutions of all
security levels (two high-maximum, 12 maximum, 18 medium and 12
minimum), as well as thirteen community correctional centres.
The Prison for Women is closing. The first
call for its closure came in 1938, four years after it opened. By
April of 1994, closure had been announced and the slow process of
change was finally on the way. The fate of the building has not yet
been announced. The fate of many women, inmates and prison staff
alike, has been marked, to varying degrees, by the events under
investigation and, I believe, by the very process of this inquiry. I
wish to express my gratitude to them, and to the present
administration of the prison, particularly to Warden Thèrése
Leblanc, for the courtesy and assistance that they have extended to
me and to the personnel of the Commission.
I am also grateful to counsel for the
parties, without whose cooperation this report could not have been
produced on time. They served their clients well.
I want to acknowledge as well the dedication
of all Commission staff. I believe that their reward will be, in
large part, the friendships that have been formed or solidified
during the intense months of our work together. In particular, I am
very grateful to Sheila-Marie Cook whose experience and support were
invaluable to me.
Finally, I wish to thank my counsel, Trisha
Jackson and Guy Cournoyer, who led the fact finding portion of this
inquiry in a firm but fair fashion, with remarkable efficiency and
professionalism. I admire their dedication and I valued their
advice.
This report is divided into four parts. The
first part is a detailed recounting of the facts examined during the
course of the first phase of the public hearings of the Commission,
in which evidence was gathered, in the form of documents and sworn
testimony, in a trial-like fashion. This part contains my
conclusions as to the facts, my comments about the appropriateness
of certain actions, and my assessment of the performance of the
Correctional Service in relation to these events.
The second part of the report stands back
from these immediate events and examines some broad policy questions
that arise from these events, and that are also informed by a public
consultation process in which I embarked on roundtable discussions
with the parties and others, without the intermediary of legal
counsel. In that part of the report, I have deliberately not
addressed certain of the specific questions discussed in the course
of these roundtables. I do not wish to pre-empt in any way the work
of the Federally Sentenced Women's program which is about to be
implemented in the new regional facilities, except to the extent
that is necessary to give effect to the broad proposals for reform
that I have put forward.
The third part of the report is a brief
historical overview which traces these contemporary issues through
the various studies and reports that have touched upon women's
corrections.
The last part lists and consolidates without
further comment the specific recommendations that appear throughout
the earlier parts of the report.
During the entire process of this inquiry,
and in particular in the writing of this report, I have concluded
that it would not be fair for me to embark upon a personal
attribution of responsibility, for many reasons. Many persons were
not called to testify and had therefore no opportunity to address
allegations that might have been made against them. The witnesses
who were called were not meant to be singled out as blameworthy, but
were called for the sake of expediency, as the ones who had the most
to contribute to the unfolding of the narrative. Many individuals
who, by their own account, made errors, or whose actions I found did
not meet a legal or policy standard or expectation, are otherwise
persons greatly committed to correctional ideals for women
prisoners. They were part of a prison culture which did not value
individual rights. Attribution of personal blame would suggest
personal, rather than systemic shortcomings and justifiably
demoralize the staff, while offering neither redress nor hope for a
better system in the future.
Many of the women and men whom I have
encountered through this inquiry and who work in, or with, the
correctional system in the area of women's corrections, have much to
contribute to the rehabilitative enterprise. Many of the women
incarcerated in the federal system have much to benefit from it.
The Inquiry
Process
The Commission was established by the
Governor General in Council on the recommendation of the Solicitor
General of Canada, pursuant to Part II of the Inquiries Act, by
Privy Council Order 1995-608 on April 10, 1995. Commencing in
mid-April, the Commission began its process of organization which
required the selection of Commission Counsel, investigators,
researchers and support staff necessary to complete its mandate. The
terms of reference of the Commission required me first, to make
independent findings of fact regarding incidents that occurred at
the Prison for Women in Kingston beginning on April 22, 1994; and
second, to recommend improvements to the policies and practices of
the Correctional Service of Canada. In approaching the first of
these two tasks, the Commission followed conventional practice and
conducted formal public hearings at which witnesses were examined
under oath by Commission Counsel and by legal counsel for parties of
standing. This constituted Phase I of the inquiry, entitled Findings
of Fact. During the early stages of the Commission's activities, it
became apparent that a highly structured form of inquiry would be
inappropriate and costly in helping the Commission with its second
major task of making policy recommendations. I therefore decided to
undertake a separate Phase II process to focus on policy
consultations. It had a less structured format: it relied on the
free exchange of views by invited experts and interested parties,
but it did not rely upon formal submissions and the services of
legal counsel.
Phase I
- The Fact-Finding Process
In late April and early May, along with
Commission Counsel, I visited the Prison for Women in Kingston, and
the Regional Treatment Centre where some of the women were
transferred in May of 1994. Commission Counsel began discussions and
consultations with prospective parties to the inquiry in order to
assess the issues that would be confronting the Commission.
Commission Counsel met as well with the staff and inmates at the
Prison for Women in order to provide them with information on the
process of a Commission of Inquiry.
On May 9, 1995, I wrote to Mr. John Edwards,
Commissioner of the Correctional Service of Canada outlining the
task at hand and soliciting his help in circulating the information
concerning the Commission. On May 11, 1995, I made the first of a
number of requests to him for the production of documents pursuant
to s.7 of the Inquiries Act.
On June 8, 1995, a notice of public hearing
was published in most major Canadian newspapers announcing that the
first session of the Commission would be convened on June 28, 1995
in Kingston, and that the purpose of this hearing was for the
Commission to entertain applications for standing. Copies of the
notice were also sent to all federal correctional facilities and all
institutions where federally-sentenced women were incarcerated. The
public was also put on notice that the hearing of the evidence would
commence on August 9, 1995. The public notice invited people who had
information that they believed to be of interest to the Commission,
or who wished to make written submissions, to contact Commission
Counsel.
On June 28, 1995, a procedural hearing on
standing was held. The purpose of the proceeding was to determine
which parties should be granted standing before the Commission. The
criterion for determining standing was stated in Rule 15 of the Rules of Practice (Appendix F) of the
Commission which provided that persons or groups could apply to the
Commission for standing if they considered that their interests were
put directly at issue by the Commission's terms of reference, or
that they had special experience or expertise with respect to the
Commission's mandate. The proposed Rules of
Practice of the Commission had been circulated among the parties
seeking standing, and comments on them were sought from the parties
who were granted standing.
The Parties
Granted Standing
In a ruling made on July 10, 1995, included
in its entirety in Appendix E, I granted standing to eight parties:
- the Canadian Association of Elizabeth Fry
Societies;
- the Citizens' Advisory Committee, to a
limited extent;
- the Correctional Investigator;
- the Correctional Service of Canada and
the Commissioner of Corrections;
- certain members of the Institutional
Emergency Response Team, to a limited extent;
- the Inmate Committee;
- some of the individual inmates involved
in the incidents referred to in the terms of reference; and,
- the Public Service Alliance of Canada and
the Union of Solicitor General Employees.
I also granted standing to parties for Phase
II of the Commission's inquiries concerning policy issues. The eight
parties to whom standing was granted for those sessions were:
- The Canadian Association of Elizabeth Fry
Societies;
- The Correctional Investigator;
- The Correctional Service of Canada;
- The Inmate Committee;
- The Native Sisterhood;
- The Native Women's Association of Canada;
- The Union of Solicitor General Employees;
and,
- The Women's Legal Education and Action
Fund.
In my ruling, I recommended that funding be
extended to certain persons or groups with standing who had
requested financial assistance from the Commission on June 28, 1995.
They were: the individual inmates; the Inmate Committee; the
Canadian Association of Elizabeth Fry Societies; and the Citizens'
Advisory Committee. On July 31, 1995, the Governor General in
Council, on the recommendation of the Solicitor General, authorized
the Solicitor General of Canada to make ex
gratia payments in accordance with criteria that were set out in
Schedule "A" of the Order-in-Council, reproduced in Appendix G,
to assist with costs incurred by intervenors to the inquiry. Those
payments were to be made upon consideration of the advice and
recommendations for such payment by the Commissioner.
Relevant documents obtained by the
Commission were circulated to all parties with standing, subject to
an undertaking by all parties and their counsel not to disclose the
documents or information contained therein, unless and until they
became part of the public proceedings of the Commission.
Investigations
and Interviews
More than 100 people were interviewed by a
staff of investigators, under the supervision of Detective Inspector
Dennis Olinyk, Ontario Provincial Police, assisted by OPP officers
Julie Cyr, Jenny Zapotoczny, Sylvie Cotè and Val Brown, as well as
by Commission Counsel and Kelly Hannah-Moffat from the Commission
staff. Virtually all persons interviewed were assisted by legal
counsel, although a few expressed their preference not to be
accompanied by counsel. Statements were reduced to writing, and were
reviewed and corrected if necessary by the interviewee. Statements
were then circulated to counsel for all parties with standing,
subject to the same undertaking given with respect to documents.
Commission Counsel interviewed, prior to their testimony, all of the
22 witnesses heard by the Commission. The selection of witnesses was
determined by three constraints. The first was that the focus of the
inquiry was on the policies and procedures used by the Correctional
Service to respond to the incidents under investigation. It was not
the mandate of the Commission to engage in a detailed examination of
the conduct of the many individuals involved in these incidents. The
second constraint was, the necessity of meeting the reporting
deadline of March 31, 1996. The two largest new regional facilities
will open in the coming months, while the others have started their
operation in late of fall of 1995. Lastly, because of the large
number of people who were involved in the events, it would have been
enormously time-consuming and costly to call them all as witnesses;
it would also have been essentially repetitive and uninformative.
The selection of witnesses was therefore based on an assessment of
who would best be able to contribute to the recital of events. The
determination was made, not on the basis of a perception that those
called were guilty of wrongdoing, but rather that they had the most
to contribute to the largest number of issues.
The
Hearings
The first three days of hearings commenced
on August 9, 1995 in Kingston, Ontario. The Regional Deputy
Commissioner for Ontario, Irving Kulik, and the Warden at the Prison
for Women, Thèrése Leblanc, testified as to the organization of the
Correctional Service and the Prison for Women in Kingston. The
hearings resumed on September 5, 1995 for three weeks. The hearings
were adjourned for two weeks and resume on October 11, 1995.
On November 2, 1995, the Commission was
forced to postpone the completion of its hearing because of the late
production of certain documents by the Correctional Service of
Canada. The Phase I portion of the hearings was completed during the
week of December 11, 1995, with the testimony of the Senior Deputy
Commissioner, Andrew Graham, and the Commissioner of the
Correctional Service, John Edwards. This completed the evidence
called by Commission Counsel. Submissions were made as to whether
further evidence should be heard, based on the witnesses' statements
which had been circulated to all counsel. I ruled that no further
evidence be called.
In early January, notices were sent to
several persons pursuant to s.13 of the Inquiries Act. The Commission sent two
types of notices, samples of which are included in Appendix I. If
the person notified had given evidence at the Commission's
proceedings, the notice stated that an unfavourable report or a
finding of misconduct might be made with respect to certain
enumerated issues. Some notices were also sent to persons who had
not been called as witnesses informing them that although they would
not be named in the report, adverse findings might be made about
matters in which they were involved, and these findings might
reflect on them. As well, Commission Counsel advised the parties
that any submissions made by other parties with standing should be
treated as if they were made or given in a notice under s.13 of the
Inquiries Act.
The Commission received written submissions
on or about January 10, 1996, and final submissions were made orally
before me in Toronto, on January 15 and 16, 1996.
Phase II
- Policy Consultations
Before beginning the Phase II process, and
in order to familiarize myself with the general issues concerning
the imprisonment of federally sentenced women in Canada, I arranged
to visit a few women's prisons in various parts of the country. I
visited Vanier Centre for Women in Brampton, Ontario, Maison Tanguay
in Montrèal, Quebec; Burnaby Correctional Centre for Women in
Burnaby, British Columbia; and Nekaneet Healing Lodge in Maple
Creek, Saskatchewan. I met informally with administrators,
front-line workers and federally sentenced women. I also met with
prominent academics and researchers on women's imprisonment in
Canada, such as Professors Marie-Andrèe Bertrand and Louise Biron
from the University of Montrèal, Professor Margaret Shaw from
Concordia University, Professors Karlene Faith and Margaret Jackson
from Simon Fraser University and Professor Michael Jackson from the
University of British Columbia.
The Commission also embarked on a modest
research program which entailed, for the most part, the
identification of the findings of existing scholarly work through
the services of the Centre of Criminology Library at the University
of Toronto. The Commission's Senior Research Advisor, Dr. Tammy
Landau, conducted additional consultations with senior officials and
researchers at the Secretariat of the Solicitor General of Canada,
Correctional Service of Canada and the Department of Justice. The
research program facilitated the organization of Phase II of the
Commission's work. For that second phase, I decided to depart
completely from the courtroom model in which Phase I was conducted
and to hold a series of Roundtable Discussions on selected topics,
such as:
- Programming and Treatment Needs of
Federally Sentenced Women
- Managing Violence and Minimizing Risk in
Women's Corrections
- Federally Sentenced Aboriginal Women
- Cross-Gender Staffing and Workplace
Issues
Each party granted standing in Phase II was
invited to send one or two representatives to each roundtable. I
also invited them to recommend additional guest participants and
experts who could attend the sessions unaffiliated. and bring their
particular knowledge or skills to the discussions. Experienced
moderators were selected for each session. Commission researchers
arranged for background materials specific to each roundtable
session to be distributed to all participants. The list of
participants for each session is attached as Appendix C.
In addition to the Roundtable Discussions, I
received many unsolicited submissions from members of the public
wishing to express their views, concerns and recommendations with
respect to the conditions of imprisonment for women in Canada. The
issues they raised included, among others, the physical health and
well-being of women in prison, the role of men in women's
institutions, and the use of mediation and restorative justice to
decrease the reliance on imprisonment.
Glossary
Many different expressions are used to refer
to people who work in corrections and to people who serve a sentence
after having been convicted of an offence. Some expressions have
both a legal meaning and a popular acceptance which may be slightly
different from the legal definition.
Many of these expressions also have a
political connotation, and are either used, perceived or felt as
derogatory or demeaning.
I have attempted to recognise these concerns
in this glossary, and to give a context for the language used in the
report.
Federally
Sentenced Women - refers to women who have been
sentenced to terms of imprisonment of two years or more, and are
therefore under the jurisdiction of federal correctional
authorities. The term is widely used in the Correctional Service.
For instance, in 1990, the Correctional Service of Canada adopted
the recommendations of the Report of the Task Force on Federally
Sentenced Women. The term avoids many of the negative connotations
that some see in the words of "inmate" and "prisoner". It cannot be
used, however, when one refers to all incarcerated women in Canada,
most of whom are serving a sentence of less than two years, or are
on remand awaiting trial, in which cases they are incarcerated under
provincial jurisdiction.
Inmate - The Corrections and Conditional Release Act
(1992) defines "inmate" as:
(a) a person who is in a penitentiary
pursuant to
(i) a sentence, committal or
transfer to penitentiary, or
(ii) a condition imposed by the
National Parole Board in connection with day parole or statutory
release, or
(b) a person who, having been sentenced,
committed or transferred to penitentiary,
(i) is temporarily outside
penitentiary by reason of a temporary absence or work release
authorized under this Act, or
(ii) is temporarily outside
penitentiary for reasons other than a temporary absence, work
release, parole or statutory release, but is under the direction or
supervision of a staff member or of a person authorized by the
Service.
This definition is much broader than that
which is commonly used to refer to individuals who are currently in
custody. It has its roots in the medico-psychiatric community and
was historically linked to the rehabilitative ideology in
corrections. The term has, for some inmates and inmate advocates,
connotations which mask the involuntariness of imprisonment and
suggest benevolent therapy. It is a term which was the most
frequently used during both Phase I and Phase II of the Commission's
work. It is used interchangeably with "prisoner" in this report .
Prisoner - This term is
generally synonymous with "inmate", and refers to individuals
currently in custody. It is rarely employed by correctional
authorities to refer to people in prison. Some participants in Phase
II expressed the view that "prisoner" more accurately reflects the
involuntary nature of imprisonment. It is used interchangeably with
"inmate" in this report.
Convict - This is an
outdated term dating back to the turn of the century to refer to
inmates or prisoners.
Offender - The Corrections
and Conditional Release Act (1992) defines "offender" as:
(a) an inmate, or
(b) a person who, having been sentenced,
committed or transferred to penitentiary, is outside penitentiary
(i) by reason of parole or
statutory release,
(ii) pursuant to an agreement
referred to in subsection 81(1), or
(iii) pursuant to a court
order.
In common vernacular, the term often refers
to individuals who have been convicted of criminal offences, but are
not necessarily presently incarcerated or otherwise serving a
sentence. The term is quite commonly used by correctional
authorities to refer to individuals who fall under their mandate and
jurisdiction. Some participants in Phase II of the Commission's work
expressed the concern that the term suggests a repeat or continued
pattern of criminality, when many federally sentenced women have
only committed one offence. It is the only term commonly used to
refer to all persons under sentence, whether in prison or not.
Women - In the context of
federal corrections, this term is used almost exclusively to refer
to federally sentenced women. The use of such a general term is
meant to highlight the commonalities among women, both inside and
outside prison. That usage is often too imprecise for the
Commission's purposes, since a large number of Correctional Service
personnel involved in the events under consideration were women.
Some insist that their gender is also relevant and should not be
hidden by the expression "staff" when "women" is reserved for
inmates.
Penitentiary - This term is
defined in the Corrections and Conditional
Release Act (1992) and essentially refers to a carceral facility
under federal jurisdiction, in which men and women serve sentences
greater than two years.
Prison - When used in
contrast to a penitentiary, the prison refers to a provincial
detention facility. Many such provincial institutions are called
"correctional centres" or, "correctional institutions".
In more general terms, prison is the
commonly used term to refer to all institutions where persons are
detained under the authority of the criminal law, or of provincial
penal law. It is often used in that broad generic sense in this
report.
Regional
Facilities - This term is first used in the Creating Choices - Report of
the Task Force on Federally Sentenced Women. In general, it is used
to describe the new regional prisons for federally sentenced women
proposed in Creating Choices. The use of
"facilities" as opposed to "prisons" is meant to reflect a less
punitive environment. Some express concern that it is a euphemism
which hides the carceral reality.
Primary
Worker - This is a new term which is specific to
the staffing structure at the new regional facilities. The term
describes the emergence of a new staffing position which involve
static and dynamic security, case management and program delivery.
The position departs from a traditional paramilitary staffing
structure and is more consistent with the correctional philosophy as
outlined in Creating Choices in which
relationships are based on trust, support, and role modelling. The
union and others have expressed concerns with this term because of
its analogy with childcare workers, which is perceived to be
unprofessional and infantalizing.
Guard - This term is used
to describe individuals who worked in prisons or reformatories and
whose primary responsibilities were to guard prisoners or inmates.
The term is currently used largely by inmates, but has been
generally replaced with the term "Correctional Officer" to denote
the professionalization of the position.
Correctional
Officer - This term has replaced "guard" to
denote the professionalization of the position, and to acknowledge
the role in "correcting" or rehabilitating offenders. The change in
names is representative of a historical shift in correctional
philosophy informed by a medical or rehabilitative model in
provincial and federal corrections. This is the term formally used
by the Correctional Service of Canada and the Union of Solicitor
General Employees.
Front-line
Worker - A contemporary term referring to the
role and position of correctional officers who work directly with
inmates on an ongoing and daily basis. These individuals commonly
work in the living units and directly supervise personal and private
activities of inmates, such as showering, sleeping, etc. Front-line
workers are also most likely to be in positions to deal with inmate
crises.
Jailor/Gaoler - This term
is obsolete and was generally used to describe the role of the
keepers of the prison. It will not be used in this report.
Abbreviations
CAEFS
Canadian Association of Elizabeth Fry
Societies
CCRA The Corrections and Conditional Release Act,
1992.
CD Commissioner's Directive
CO/CX (1,2,3)
Correctional Officer
CS Correctional Supervisor
CSC
The Correctional Service of Canada
IERT/ERT Institutional Emergency Response Team
IPSO
Institutional Preventative Security Officer
LEAF
Women's Legal Education and Action Fund
P4W
Prison for Women
RTC
Regional Treatment Centre at Kingston
Penitentiary
SHU
Special Handling Unit
PART I THE EVENTS AT THE PRISON FOR
WOMEN
1.
INTRODUCTION
1.1 The Structure
and Organization of the Correctional Service of
Canada
1.1.1 The legal
and policy framework
In 1992, Parliament passed the Corrections and Conditional Release Act,
S.C. 1992, c.20 (CCRA) which replaced
the Penitentiary Act, R.S.C. 1985, c.P-5
and the Parole Act, R.S.C. 1985,
c.P-2. The CCRA and associated
Regulations are the principal legislation governing the operations
of the Correctional Service of Canada.
In addition to the law, the Correctional
Service has established a detailed and complex set of policies.
Pursuant to the CCRA, the Commissioner
of the Correctional Service is authorized to designate as
Commissioner's Directives (CD's) rules for the management of the
Service and the carrying out of the Act.
Commissioner's Directives must be accessible to correctional staff,
inmates and the public. Judicial decisions have indicated that
Commissioner's Directives have at least a higher status than policy
and other rules, and that they constitute, as a minimum, a set of
standards of fairness to which the Service must adhere. In some
cases, the Commissioner's Directives restate the law and provide
specific guidance as to how the law is to be implemented within the
Correctional Service, and in other areas, they set policy and
practice with respect to matters not specifically dealt with in the
CCRA and Regulations. In addition to
Commissioner's Directives, each region may issue Regional
Instructions, which either repeat or elaborate on matters dealt with
in Commissioner's Directives, or address regionally specific issues.
Each individual institution also issues a
separate set of Standing Orders which often repeat or further
elaborate on matters dealt with in the CCRA, the Regulations, the Commissioner's
Directives, and the Regional Instructions. Standing Orders provide a
specific set of rules applicable to the institution. Standing Orders
are further elaborated in Post Orders which provide specific
instructions for those staff members who occupy particular posts
within the institution and outline the responsibilities assigned to
that post. To varying degrees, Post Orders, like Standing Orders,
either repeat or elaborate on already existing law and policy.
Notwithstanding their enormous volume,
Commissioner's Directives, Regional Instructions, Standing Orders,
and Post Orders do not exhaust the written policy documents used by
the Correctional Service. In addition, there are memoranda and other
more specific policy manuals which further elaborate on CSC's
written policy. For example, manuals on Security, Contingency
Planning, Case Management, Policies and Procedures, and the Conduct
of Investigations are among innumerable written policies referred to
during the course of this inquiry. The CSC also sets policy by
virtue of the usual practice and procedure which it employs in a
given situation.
In this report, references to the law
include the CCRA, the Regulations, and
any applicable judicial decisions. CSC policy means both explicit
written policy (Commissioner's Directives, Regional Instructions,
Standing Orders, Post Orders, Manuals and other written policies)
and operational policy, which is the usual practices and procedures
of the CSC.
The events examined by this Commission
indicate some significant discrepancies between CSC's operational
policy, its written policy, and the law. Indeed, it is evident that
some very important, yet essentially simple, legal principles which
govern crucial aspects of the operation of the Correctional Service
have become lost in a myriad of elaborate policy and regulatory
provisions. It is apparent that it is not well understood within the
Correctional Service that the decision to follow the law (as opposed
to policy) is not a matter of discretion.
When confronted with an apparent departure
from law or policy, I have found it helpful to analyze the problem
by addressing the following questions:
1. What is the law and/or policy applicable
to the event?
2. Is the applicable law or policy
appropriate?
3. Is the applicable law or policy known
within the Correctional Service?
4. Is the applicable law or policy perceived
within the Correctional Service to be appropriate?
5. If the applicable law or policy is not
known, why is that so? Is it due to questions of complexity, issues
of communication, understanding, acceptance or otherwise?
6. Was the law or policy complied with in
this case?
7. If the law or policy was not complied
with, was there an appropriate response on behalf of the
Correctional Service?
8. If the law or policy was not complied
with in this case, what should be done about it?
Throughout this report, my findings and
conclusions reflect this framework of analysis.
1.1.2 The
organization
An organizational chart of the positions
within the Correctional Service which are relevant to the issues
examined is found at Figures 1 and 2.
Pursuant to the CCRA, the Commissioner of the Correctional
Service is responsible for the regulation and management of the CSC.
Throughout the period material to the events examined by this
Commission, the Commissioner was John Edwards. The Commissioner
reports to the Solicitor General.
The Commissioner is assisted in the
discharge of his responsibilities by a Senior Deputy Commissioner
who reports to and works directly with him at National Headquarters
in Ottawa. In April of 1994, the Senior Deputy Commissioner was
Willie Gibbs, and in September of 1994, Andrew Graham assumed this
position.
The Correctional Service is subdivided into
five regions (Atlantic, Quebec, Ontario, Prairies and Pacific). A
Deputy Commissioner is assigned to each region and is responsible
for administration and institutions within that region. In April of
1994, Andrew Graham was the Deputy Commissioner of the Ontario
Region. In September of 1994, that position was assumed by Irving
Kulik. The Warden of the Prison for Women reports directly to the
Deputy Commissioner for the Ontario Region.
1.2 The
Organization of the Prison for Women
The organizational chart at Figure 2
outlines the staff positions within the Prison for Women. A brief
description of the positions which are relevant for the purposes of
the matters examined by this Commission is provided below.
The Warden (Figure 1) of an institution is
in charge of all aspects of the prison's operations. In April of
1994, the Warden at the Prison for Women was Mary Cassidy. She had
occupied that position since 1987. In mid-September of 1994, Warden
Cassidy left this position and it was filled, on an acting basis, by
then Deputy Warden Barrie Friel. In November, 1994, Thèrése Leblanc
assumed the position of Warden of the Prison for Women.
The next most senior position is that of
Deputy Warden (Figure 2), to whom those with most of the significant
inmate responsibilities (including health,
April 1994 The
Correctional Service of Canada Organization Chart Part I
Figure 1
Click image to enlarge
April 1994 The
Correctional Service of Canada Organization Chart Part I
Figure 2
security and case management, which involves
the management of prisoners' personal, institutional, correctional
and program needs) report. In April, 1994, the Deputy Warden at the
Prison for Women was Donna Morrin. In August of 1994, that position
was assumed by Barrie Friel.
The Prison for Women's administration is
organized along a model now prevalent in the Correctional Service
known as unit management (set forth in CD 005). Unit management
contemplates that a group of inmates will live together in a living
unit, and that all aspects of management associated with that group
of inmates will be centred on that living unit. The physical
structure of the Prison for Women, unlike comparable male
institutions, precludes the existence of separate living units.
Nonetheless, the management model attempts to approximate unit
management. In the result, two Unit Managers report to the Deputy
Warden. One is in charge of the Segregation Unit and the Wing living
area, and the other is in charge of the A and B Ranges. For the
periods material to the events examined by this Commission, Barbara
Hilder was the Unit Manager in charge of the Segregation Unit and
Wing living area (except for some periods of authorized absence in
the summer), and Cathy Beres was in charge of the Ranges. Each Unit
Manager has a roster of correctional supervisors, case management
officers and correctional officers reporting to her. However, due to
the lack of truly separate living units within the Prison for Women,
correctional staff do not report exclusively to the Unit Manager
directly supervising the living area in which they are working. The
primary responsibilities of a Unit Manager include the management of
a diversity of supervisory and line staff roles in the planing,
evaluation and control of human, financial and physical resources
for each unit and the responsibility for achieving correctional
objectives in each unit.
The positions which report to the Unit
Manager include Correctional Officers (CX1, CX2), Correctional
Supervisors (CX3), and the Institutional Preventative Security
Officer (IPSO). The Correctional Officer 1 (CX1) position is the
usual entry level position in the Prison for Women. CX1's are the
front line staff who supervise and control inmate movement and
activities throughout the prison from a security perspective. CX2's
perform a similar role with added case management and supervisory
responsibilities. Both groups report to the Correctional Supervisor
or CX3 who supervises the operations of the correctional officers
and, in the absence of members of senior management (typically in
the evening and midnight shifts and on weekends), is in charge of
the prison.
The prison's Institutional Preventative
Security Officer is in charge of such things as the gathering of
information and intelligence affecting the security of the
institution, maintaining contact with police departments and
criminal court officials, conducting investigations and the
preparation of reports on security incidents. In April 1994, Rick
Waller was the Acting Institutional Preventative Security Officer.
The position was filled on a full-time basis in September of 1994 by
Carmine Tedesco.
In addition to the positions described
above, the prison has a large complement of health staff and
psychologists, as well as individuals with principal responsibility
for case management, social development, program delivery, and
matters relating to the administration of inmate sentences, all as
set out in the organizational chart at Figures 1 and 2. Some of
these are full or part-time contractual workers.
1.3 The Physical
Layout of the Prison for Women
The prison is an old fashioned,
dysfunctional labyrinth of claustrophobic and inadequate spaces
holding 142 prisoners of all security levels, minimum through
maximum. It has been described as "unfit for bears". It is
inadequate for living, working, eating, programming, recreation, and
administration. Spaces are insufficient, poorly ventilated and
noisy. They are not well connected, and frequently can only be
reached through narrow corridors, steep stairwells (there are no
elevators), and innumerable locked barriers. Some efforts have been
made to allow lower security women greater privileges and more
freedom of movement. However, the prison grounds are surrounded by
an enormous wall, which in the male system, is used by maximum
security institutions only, and in many other aspects the building
has the characteristics of a maximum security institution.
The only true minimum security unit is
actually outside the walls of the prison, although it operates under
the authority of the Warden. It was opened in 1990 and is called the
Isabel McNeill House. It provides a residence for 11 women who are
within two years of their day-parole eligibility and who have a
minimum security classification.
All other minimum security women have to
serve their sentence inside the multi-level Prison for Women. There
are essentially four living units inside the prison which do not
strictly correspond to the formal security classification of their
occupants.
The most freedom is available in a section
known as the "Wing", which is entirely separate from the area where
the incidents of April 22, 1994 occurred. It contains approximately
50 unbarred small rooms occupied by one, and in some cases, two
inmates.
The living accommodation for the remainder
of the inmates is contained in a series of barred cells known as
A Range, B Range, and the Segregation Unit. A floor plan
showing the size and configuration of these cells is found at
Figures 3 and 4. A Range is a long two-tier bank of over 50
cells, each 9 feet 2 inches by 6 feet 2 inches in size. B Range
is a similar two-tier bank of cells, half as long as A Range,
and running parallel to it. The other half is occupied by the area
which in 1994 was designated as the Segregation Unit (and which is
so described for the balance of this report). It also consists of
two-tiered cells, but it is separated into a protective custody
area, and a dissociation side (Plate 1). Women housed in A and B
Ranges for long periods of time, in some cases years, use personal
effects to make their cells more home-like.
The cells in A and B Ranges and the
Segregation Unit are thinly divided from each other and connected by
a series of ducts. Sound travels easily, and the entire cell area is
usually very noisy, made as it is of bare cement and metal.
The Segregation Unit houses inmates who are
either in disciplinary or in administrative segregation. (The
differences will be described below.) Women who are on suicide
watches or in a state of personal crisis are also housed in the
Segregation Unit, as are women who request some "time out" from the
general prison population. These inmates are placed either in the
larger dissociation side of segregation, or in the protective
custody side, which is occupied by the very small number of inmates
whose safety would be at risk in the general population. The two
sides of segregation are connected by a door which is often left
open.
The Segregation Unit consists exclusively of
cells (approximately 20), a small shower area, a small office and a
storage space. There is no place in which an inmate can have a
private interview with a lawyer. This also precludes private
interviews with a psychologist, school teacher, or anyone else. Nor
is there any space for programming or recreational activities. Until
late 1994, primitive wiring in the area precluded the use of
televisions, radios or any other electrical appliances in any of the
cells. This made it particularly unsuitable for long-term placement
of inmates who were essentially confined to their cells with nothing
to do. This was notwithstanding recommendations dating from 1993
that compliance with the CCRA required
the installation of the necessary electrical capability, estimated
to cost $2,000.00. The plumbing is also old and unreliable, and the
difficult events in the Segregation Unit in April of 1994 were
compounded by plumbing breakdowns, which at times prevented the
toilets from being flushed.
The second tier of the dissociation side of
the Segregation Unit can only be reached by a staircase at one end
of the unit, which leads to a narrow corridor running just outside
the cells in a balcony-like fashion (Plate 2).
In the dissociation side, a cell contains a
metal bed which is attached to the wall, a sink, a toilet and in
some cases, a pull down writing surface (Plate 3). The view from the
cell is through the bars into the corridor beyond (Plate 4). From
July, 1994 onwards, this view was obstructed by the addition of a
heavy metal treadplate (Plates 5 and 6). At the same time, two
cameras were installed in each cell in order to provide constant
monitoring of the actions of the cell occupant.
The Segregation Unit of 1994 was perceived
as so inappropriate that, following the incidents examined by this
Commission, and despite the planned closure of the Prison for Women,
half a million dollars were spent building a seven-cell new
Segregation Unit in the basement of the prison.
1.4 Daily Life in
the Prison for Women
It is generally accepted in the
international community that a set of minimum standards should apply
to imprisonment. These standards are designed to ensure that the
inmates are humanely treated, that their responsibility and dignity
is maintained, and that they are prepared as much as reasonably
possible for reintegration in their community at the end of their
term of imprisonment. The standards which the international
community has generally accepted are contained in the United Nations Standard Minimum Rules for the
Treatment of Prisoners, which were first adopted in 1955. While
Canada, and the Correctional Service in particular, are not obliged
to conform to the specific terms of the UN Rules in the management
of prisons, those rules are accepted as international norms and
minimum standards, and departures from them generally only occur
where there is a reasoned justification.
The UN Rules indicate a broad acceptance
within the international community of many aspects of Canadian law
and stated CSC policy: living accommodation which is appropriately
lit, ventilated and cleaned; nutritional food well prepared and
served; appropriate bedding and clothing regularly laundered;
regular exercise and sports; regular access to medical services;
educational, vocational training, and work opportunities as part of
daily life; access to religious representatives; access to books and
other educational and recreational opportunities (in Canada radio
and television); social case work and other counselling to assist
the inmate towards a law abiding and self supporting life after
release; and an ongoing opportunity to remain in contact with
friends and family.
In practice, these principles are reflected
in the general organization of daily life at the Prison for Women
which may be summarized as follows.
Daily life at the Prison for Women is
organized around three shifts, the morning or dayshift from 7:00
a.m. to 3:00 p.m., the evening shift from 3:00 p.m. to 11 p.m., and
the night shift from 11:00 p.m. to 7:00 a.m. At regular
intervals throughout the day, formal inmate counts are taken by the
correctional staff. On those occasions, inmates are locked in their
cells and remain there until the formal count is complete and all
inmates are accounted for.
Following the 7:00 a.m. count, those inmates
not in segregation eat breakfast in a small, centrally located
eating area, in three shifts, between 7:30 and 8:30.
From 8:30 until 11:00, they leave their cell
units to engage in work programs, educational or related programs,
or remain in their cells, or in a small associated activity area.
There are limited work programs: they consist mostly of the
performance of tasks associated with the running of the institution
(kitchen work, laundry, cleaning, clerical, beauty parlour, etc.).
Other programs consist of a limited number of educational and
vocational programs, and therapeutic services.
![Prison for Women Second Floor (Cell Block)](/web/20061026013841im_/http://ww2.psepc-sppcc.gc.ca/_images/english/corrections/199681Figure3_e.gif)
Figure
3
Figure
4
Plate 1
Segregation Unit upper and lower tier of
Dissociation side (From the files
of the Ontario Provincial Police)
Plate 2
Upper tier Dissociation side (From the files of the Ontario Provincial
Police)
Plate 3
Interior view of a cell (From the files of the Ontario
Provincial Police)
Plate 4
Exterior view of a cell (From the files of the Ontario
Provincial Police)
Plate 5
Cell with heavy metal treadplate (From the files of the Ontario Provincial
Police)
Plate 6
Cell with heavy metal treadplate (From the files of the Ontario
Provincial Police)
Inmates are expected to work, or to
participate in a program, and a small pay is allocated for both
activities. The pay is used for the purchase of canteen items such
as cigarettes, pop, hair care products, etc. Those who remain in
their living units have the option of staying in their cells, which
are unlocked, or going to a small activity area associated with
their living unit which contains laundry facilities, a television
set, and a seating area. B Range inmates who are not at work or
in programs, remain locked in their cells, but are given the
opportunity, once an hour, either to go to the B Range activity
room or to remain in their cells. At 11:00 a.m., there is another
count, followed by lunch. From 1:00 p.m. until 4:00 p.m.
there is a further period for work, programming, or cell activities.
At 4:00 p.m. there is another formal count, followed by the
evening meal between 4:15 and 6:00 p.m. At 6:00 p.m., the yard
opens and weather permitting, inmates rotate through the yard. They
may also engage in other small group activities. There is a further
count at 9:00 p.m., followed by a final count and lockup at 11:00
p.m.
Those inmates who are in segregation remain
locked in their cells throughout the day, except for the one hour in
which they are supposed to be provided with daily exercise.
This schedule varies slightly on weekends:
there is little, if any, time allocated to work assignments or other
programming, and breakfast and lunch are collapsed into one meal.
1.5 The
Correctional Investigator
The CCRA
establishes the office of the Correctional Investigator as an
ombudsperson, independent of the Correctional Service of Canada, who
reports directly to the Solicitor General. The relevant provisions
of the CCRA governing the activities of
the Correctional Investigator are found at section 2.10 below.
The Correctional Investigator and those he
hires to assist him, conduct investigations into problems of
offenders relating to acts or omissions by the Commissioner of the
Correctional Service or anyone under his control and management
(unless the action concerns matters relating to the National Parole
Board, the Provincial Parole Board, a provincial correctional
facility or provincial officer). Such investigations may be
initiated by an inmate complaint, a ministerial request, or by the
Correctional Investigator on his own initiative. The Correctional
Investigator is given broad powers to compel the production of
documents and information, including but not limited to any in the
possession or control of the Correctional Service, to enter and
inspect premises under the control and management of the
Commissioner, and to require the giving of evidence under oath.
Where the investigation indicates a problem, the Correctional
Investigator is required to inform the Commissioner and may make any
recommendations, which are not binding, that he considers
appropriate. If the problem is not adequately responded to within a
reasonable time, the Correctional Investigator is required to inform
the Solicitor General. The CCRA broadly
protects the Correctional Investigator, and those acting under his
authority, from criminal or civil proceedings or review, and creates
offences for failing to comply with lawful requirements of the
Correctional Investigator.
The Correctional Investigator reports
annually to the Solicitor General and between annual reports, may
make special reports to the Solicitor General on matters which are
of sufficient urgency or importance that they should not be deferred
until the annual report. Where an annual or special report will or
might reflect adversely on anyone, the person or organization must
be given a reasonable opportunity to make representations with
respect to the matter and a summary of those representations are to
be included in the report.
There are also strict confidentiality and
non-disclosure provisions imposed upon the Correctional Investigator
which were of significance to his participation in this inquiry. The
Act requires that neither the
Correctional Investigator nor anyone acting on his behalf may
disclose any information gained in the exercise of their duties.
Notwithstanding this obligation of confidentiality, s.183 of the Act authorizes the Correctional
Investigator to disclose information on certain limited bases. These
include circumstances where he considers it necessary in connection
with an investigation, or where he wishes to establish the grounds
for findings or recommendations made in a report by him. However,
s.189 provides that neither the Correctional Investigator nor anyone
working under his direction is a competent or compellable witness
with respect to any information gained in connection with the
discharge of the duties of the office of the Correctional
Investigator.
As described more fully below, one of the
precipitating events in the appointment of this Commission of
Inquiry was a special report of the Correctional Investigator
dealing with the incidents which are the subject of this inquiry. At
an early stage of the Commission's proceedings, the Correctional
Investigator indicated his intention to cooperate fully with the
Commission, and to provide as much assistance and information as he
could, consistent with the statutory requirements under which he
operated.
In the result, the Correctional Investigator
determined that extensive documentation compiled by his office
should be produced to the Commission because this release was
necessary either to carry out an investigation or to establish the
grounds for findings and recommendations made by him pursuant to the
provisions of s.183 of the CCRA. The
documentation received from the Correctional Investigator was
disclosed to the parties with standing. However, the Correctional
Investigator expressed the view that neither he nor his employees
could testify in the inquiry's proceedings by virtue of s.189. The
Correctional Investigator and the Commission agreed on a procedure
in which questions from any parties with standing were directed to
the Correctional Investigator through the office of Commission
Counsel, and written answers were provided.
In the result, notwithstanding the statutory
constraints, the Commission had substantial access to the records
and information compiled by the Correctional Investigator in the
course of his investigation of these events.
1.6 Other
Organizations
1.6.1 The
Canadian Association of Elizabeth Fry Societies
The Canadian Association of Elizabeth Fry
Societies ("CAEFS") is a federation of autonomous societies which
works with, and on behalf of, women in conflict with the law. CAEFS
was originally conceived in 1969 and was incorporated as a voluntary
non-profit organization in 1978. There are 21 member societies
across Canada, including one in Kingston, Ontario where the Prison
for Women is located.
Elizabeth Fry societies are community-based
agencies dedicated to offering services and programs to women who
are, or have been in conflict with the law, advocating legislative
and administrative reform, and offering a forum to educate the
public on aspects of the justice system which affect women.
1.6.2 The
Citizens' Advisory Committee
The Regulations authorize the Warden to set
up a Citizens' Advisory Committee ("CAC") consisting of members of
the community to promote and facilitate the involvement of members
of the community in the operation of the Service. The CAC may advise
the Warden on matters within her jurisdiction, and is expected to
make itself available for discussion and consultation with the
public, inmates, correctional staff and management. The Regulations
require the Warden to ensure that members of the CAC have access to
every part of the prison, every staff member, and every inmate for
the purpose of carrying out the Committee's functions.
While the Regulations give the Warden the
discretion to establish a CAC, the relevant Commissioner's Directive
(CD 23) requires that each prison establish one. The Directive also
specifies that a member of the Citizens' Advisory Committee may only
be replaced prior to the expiry of the membership term if he or she
does not want to continue, or acts contrary to the Committee's
mandate.
The Prison for Women had a four member
Citizens' Advisory Committee, chaired by Dr. Robert Bater.
Dr. Bater is a doctor of theology and former principal of
Queen's Theological College and head of the Department of Religion
at Queen's University. The evidence indicated that the Committee
regularly visited the prison and was usually notified of exceptional
events at the prison and invited for immediate visits in connection
with those events.
1.6.3 Other
organizations
There are other organizations who may be
referred to in this report, whose functions are evident from their
titles: the Union of Solicitor General Employees, the Inmate
Committee, and the Native Sisterhood.
1.7 The
Correctional Context: Creating
Choices
The events that occurred at the Prison for
Women in April of 1994, and in the subsequent months, must be
understood in the climate that prevailed at the time, within the
Correctional Service and in the broader interested community, with
respect to the treatment of women offenders. After years of
administrative neglect, public apathy, vacillating policies and
inadequate resources, there was a major turning point in the early
1990's with the release of Creating Choices
- Report of the Task Force on Federally Sentenced
Women2. The Task Force itself
was unlike any previous government body on prison reform in Canada
and elsewhere. The Steering Committee of the Task Force was
co-chaired by the Executive Director of the Canadian Association of
Elizabeth Fry Societies (CAEFS) and a Deputy Commissioner of the
Correctional Service of Canada. The majority of the Task Force
members were women, and many of the participants were Aboriginal
women. The members came from a variety of backgrounds: some had
served federal sentences; some were community advocates; and others
were public servants and researchers. The Task Force reiterated the
findings of previous governmental and non-governmental reports on
the Prison for Women: that it was over-secure; erroneously based on
a male model of corrections; that women prisoners were
geographically dislocated and isolated from their families; that the
programs did not meet the needs of prisoners serving a life
sentence, or Francophone, or Aboriginal women; and that there were
few community or institutional links.
The report concluded that the Prison for
Women should be closed, and in its place, five smaller, regional
prisons, including a Healing Lodge, should be built across the
country. It also urged that a new, women-centred correctional
philosophy should govern the operation of these prisons. The reforms
recommended in Creating Choices were
accepted by the federal government and so were the principles upon
which the proposals for reform rested. These principles called for
empowerment, meaningful and responsible choices, respect and
dignity, a supportive environment, and shared responsibilities.
The federal government's endorsement of the
Task Force's principles has been very influential and has led to
some provincial reform initiatives, such as Blueprint for Change - Report of
the Nova Scotia Solicitor General's Special Committee on
Provincially Incarcerated Women3, and Women's
Voices Women's Choices - Report of the Ontario Women's
Issues Task Force4.
At the federal level, a National
Implementation Committee was struck, whose primary role was the
development of plans for the construction of the new prisons, their
staffing and operations. The implementation process did not include
all the Task Force partners, and generated some criticism. By the
summer of 1993, the Wardens for the new prisons had been hired. The
Federally Sentenced Women Program Committee, the new internal
government implementation process, was put in place, and through it,
the spirit of the five main principles of Creating Choices appears to have been
retained. By the spring of 1994, the development of the five new
regional prisons was at various stages of progress in: Edmonton,
Alberta; Kitchener, Ontario; Joliette, Quebec; Truro, Nova Scotia;
and Maple Creek, Saskatchewan, which was the site for the Healing
Lodge.
As of the writing of this report in February
of 1996, Edmonton had already received 17 women, Truro had 7 women,
and the Healing Lodge had 10 women in residence. Kitchener and
Joliette are still under construction, but their staffing is nearly
completed. The closing of the Prison for Women is contingent on the
completion of these two facilities, which are scheduled to open in
the summer of 1996.
To ensure that its new prisons are
appropriate to women's experience, the Correctional Service of
Canada has made a financial and philosophical commitment to a
program design and a delivery strategy which focuses on the
particular needs of women. It has revised its selection and training
programs for correctional officers, now called Primary Workers, and
developed a new security management system, as well as a new model
of classification.
As exhilarating as this initiative which
originated with the Task Force has been for women prisoners and
prisoners' advocates, the inevitably slow pace of the closure of the
Prison for Women and the transition to the new facilities has
created considerable tensions within the prison. In anticipation of
the closure, many experienced staff members at the Prison for Women
sought and obtained transfers to other federal institutions in and
around Kingston, when the opportunity presented itself. By the
spring of 1994, the prison had an unusually high number of
inexperienced staff members.
The uncertainties of change also created
anxiety and tension among the inmates, many of whom faced the
possibility of a placement that would separate them from their
friends. For all manner of reasons, some which are not easily
explicable, the prospect of change, even of a change that could be
seen objectively as positive, was not welcome by everyone at the
prison.
In broader terms, the response of the
Correctional Service to the incidents which took place at the Prison
for Women on April 22, 1994, and the many months that followed, is
difficult to reconcile with the spirit of Creating Choices which was concurrently
animating its entire strategy for dealing with women offenders.
Nearly every step that was taken in response to this incident was at
odds with the intent of the new initiatives.
This will become more apparent in my
detailed description and analysis of these events.
2 . FACTUAL
FINDINGS AND CONCLUSIONS WITH RESPECT TO THE INCIDENTS UNDER
INVESTIGATION
2.1 Overview
Chronology
On the evening of Friday, April 22, 1994, a
brief but violent physical confrontation took place between six
inmates at the Prison for Women and a number of the correctional
staff. The six inmates were immediately placed in the Segregation
Unit at the Prison for Women. Criminal charges were laid against
them; and five of the six inmates ultimately pleaded guilty to
offences connected to the incident.
Tension was very high at the prison
- particularly in the Segregation Unit. In the
subsequent days, behaviour in that unit was very agitated. On
Sunday, April 24th, three inmates who had not been involved in the
April 22nd incident, but who were already in segregation when the
six were brought in, variously slashed, took a hostage, and
attempted suicide.
On Tuesday, April 26, 1994, correctional
staff demonstrated outside the Prison for Women demanding the
transfer of the inmates that had been involved in the April 22nd
incident.
On the evening of April 26, 1994, the Warden
of the Prison for Women called in a male Institutional Emergency
Response Team ("IERT") from Kingston Penitentiary to conduct a cell
extraction and strip search of eight women in segregation: the six
who had been involved in the April 22nd incident, and two others. As
is customary when the IERT is deployed, the cell extractions and
strip searches were videotaped. At the end of the lengthy procedure,
which finished early in the morning of April 27th, the eight inmates
were left in empty cells in the Segregation Unit wearing paper
gowns, and in restraints and leg irons.
On the evening of Wednesday, April 27th,
seven of the eight inmates were subjected to body cavity searches.
On Friday, May 6, 1994, five inmates, four
of whom had been involved in the April 22nd incident, were
transferred to a wing of the Regional Treatment Centre, a male
psychiatric treatment facility within Kingston Penitentiary. Two of
these women subsequently launched habeas
corpus applications, and on July 12, 1994, they were ordered
returned to the Prison for Women. Four inmates were returned to the
Prison for Women between July 14th and 18th, 1994, while another was
transferred to the Regional Prairies Centre.
The six women who had been involved in the
April 22nd incident remained in segregation for many months. On
December 1, 1994, the women's agreement to plead guilty to related
criminal charges was publicly announced. They appeared in court and
pleaded guilty to the agreed charges on December 22, 1994.
The women were released from segregation
between December 7, 1994 and January 19, 1995. (One inmate was
released from the prison during the period of her segregation. She
was subsequently returned to the prison and was admitted directly to
the Segregation Unit.)
On January 20, 1995, the Correctional
Service released the report of a Board of Investigation which had
been appointed by the Commissioner of the Correctional Service to
look into the incident of April 22nd, subsequent events in the
Segregation Unit and certain associated matters. The report was
critical of certain aspects of the management of the Prison for
Women generally. It gave little attention to the IERT attendance,
and in fact mis-described the nature of the IERT's procedure. It did
not deal extensively, and sometimes not at all, with many aspects of
the response of the Correctional Service to the April 22nd
incident and its aftermath.
On February 14, 1995, the Correctional
Investigator made a special report to the Solicitor General which
was severely critical of the Board of Investigation Report, the IERT
attendance, and the conditions and duration of the segregation of
the inmates involved.
On February 21, 1995, the Solicitor General
tabled the Correctional Investigator's Special Report in the House
of Commons and announced his intention to call for an independent
inquiry into the matters described above. The same day, substantial
extracts of the video of the IERT attendance were shown on the CBC
program, Fifth Estate.
On April 10, 1995, the Governor General in
Council appointed this Commission of Inquiry pursuant to Part II of
the Inquiries Act.
2.2 April 22,
1994
2.2.1 General
findings
Of all the factual matters under scrutiny by
this inquiry, this is probably the most difficult to determine with
any degree of precision. This is so for many reasons. First, more
than on any other factual issue, the parties take dramatically
different positions. The Union argues that the events under
investigation began with a planned and deliberate, large-scale
attempted escape by some six prisoners, and that it involved nothing
short of an attempted murder. The inmates, at least the two who
testified before this inquiry, reneged on the guilty pleas they had
entered as a result of the criminal charges laid in relation to
these incidents, and essentially exonerated themselves and their
fellow inmates from almost anything culpable. CAEFS and the
Correctional Investigator take the position that it is nearly
impossible for this Commission to determine what happened
- largely due to the inadequacies of the investigations
carried out by the Correctional Service immediately after the
incidents.
I indicated to all parties at the outset
that a precise and definitive determination of what happened on the
evening of April 22nd was not essential to the discharge of my
mandate, and would be a futile, time-consuming and expensive
exercise. Dozens of witnesses would have to be called to recount
their recollection of an incident that lasted a few minutes and
about which sufficient reliable information already exists. For the
purpose of determining the adequacy of the response taken by the
Correctional Service in the days, weeks and months that followed the
incident, it is only important to appreciate its significant
elements.
Criminal charges were laid against the
inmates involved on April 22nd, and in December of 1994, guilty
pleas were entered in open court, in a proceeding in which the
inmates were represented by counsel who agreed, on their behalf, to
a recital of significant facts presented by the prosecution.
On all the evidence before me, I am
satisfied that the guilty pleas, and the facts tendered in support
of these pleas, present a reliable summary of the significant
elements of the events on April 22nd. These facts are as
follows.
The incident took place shortly before 6:00
p.m. on April 22nd. The B range inmates were attending the hospital
area, as is routine, to receive prescribed medication. Inmates Young
and Shea approached the hospital barrier and inmate Young began to
demand her medication in a loud and aggressive voice. The two
inmates were quickly joined by inmates Twins, Morrison, Emsley and
Bettencourt. Most of the inmates wore street clothes.
There were six inmates in an area controlled
by four correctional officers - Vance, Boston, Metivier
and Fabio. Officer Vance questioned the group at which point the
inmates jumped the officers on what appeared to be a signal from Ms.
Twins. Ms. Morrison attacked Officer Vance, striking her a number of
times in the upper abdomen, left arm and left thigh area with an
instrument, which was never recovered, capable of making of puncture
marks. Ms. Young also jumped Officer Vance and during the course of
the assault, the officer recalls hearing the words "kill you" spoken
by one of the inmates.
Inmate Young turned to inmate Twins and
said: "Where is the scissors? Give me the scissors so I can stick
her." Inmate Twins reached for a pair of hobbycraft-sized scissors
and tried to pass them to inmate Young, but they were knocked clear
and taken by Officer Boston.
Officer Metivier attempted to telephone for
help and the phone was disconnected by Ms. Twins who told
Officer Metivier "stay back, this doesn't concern you".
Officer Boston pulled Ms. Morrison from
Officer Vance and Ms. Morrison turned on Officer Boston delivering a
number of kicks to her upper body area. At some point Ms. Morrison
grabbed a telephone and attempted to use it to strike Officer
Boston, but no blows were received.
Ms. Twins grabbed Officer Fabio, who had
gone to assist Officer Vance, around the neck and said to her:
"You're my fucking hostage. We're going out through the front door."
Officer Fabio was able to break free and was attacked by Ms. Young,
Ms. Bettencourt and Ms. Morrison, who grabbed her and struck
her. Inmate Young said: "Grab the telephone cord. We'll string the
bitch up, right here." Inmates Young and Bettencourt tried to pull
Officer Fabio onto B range and were heard yelling: "We've got her.
She's coming with us. Let's get her." Inmate Young pulled Officer
Fabio by the hair and clumps of hair similar in colour to that of
Officer Fabio were later found on the floor.
Correctional Supervisor Gillis arrived,
armed with mace, and ordered the inmates to release Officer Fabio.
They wouldn't, and Correctional Supervisor Gillis maced both
inmates, thereby freeing Officer Fabio who remembers thinking that
she was going to be killed.
Officer Boston had attempted to go to
Officer Fabio's aid and was grabbed around the throat by
Ms. Twins who said: "Give me your keys. We're going out the
front door. Don't push me, Boston. I've got a shiv, and I'll stick
you." Ms. Twins then attempted to get Officer Boston's key from her
pocket. Correctional Supervisor Gillis attempted to control the
situation and Ms. Twins kicked him in the groin area, whereupon
he maced her.
After the immediate situation was
controlled, the inmates were removed from the area to the
Segregation Unit. Three of the inmates initially escaped to the
range area, but were located and returned. During the course of the
removal to the segregation area, Ms. Bettencourt became
violent, biting, kicking and spitting at the escort officers. She
kicked Officer Smith in the left knee. Officer Smith had previously
had medical problems with the knee. The doctor later diagnosed a
torn cartilage, and placed Officer Smith in a hip to ankle cast. She
was subsequently rushed to hospital as a result of blood clotting.
The incident was very brief, lasting a
minute and a half to two or three minutes at most.
The following guilty pleas were entered to
the charges laid as a result of the incident:
- Brenda Morrison pleaded guilty to attempt
prison breach, assault upon Correctional Officer Fabio, assault
upon Correctional Officer Vance with a weapon, and assault upon
Correctional Officer Boston.
- Joey Twins pleaded guilty to attempt
prison breach, possession of a weapon for a purpose dangerous to
the public peace, to wit a pair of scissors, assault upon
Correctional Officer Fabio, assault upon Correctional Officer
Boston, and assault upon Correctional Supervisor Gillis.
- Ellen Young pleaded guilty to attempt
prison breach, to forcibly seizing Correctional Officer Fabio, to
assaulting Correctional Officer Vance, to uttering threatening to
cause serious bodily harm to Correctional Officer Vance, and to a
threat to cause serious bodily harm to Correctional Officer Fabio.
- Paula Bettencourt pleaded guilty to
forcibly seizing Correctional Officer Fabio and committing an
assault causing bodily harm upon Correctional Officer Smith.
- Patricia Emsley pleaded guilty to assault
upon Correctional Officer Fabio.
- Dianne Shea was found not guilty of any
of the charges laid against her in connection with the April 22nd
incident, but she did plead guilty to threatening to cause bodily
harm in an exchange which took place in the Segregation Unit two
days later.
There are only two significant factual
questions that are left unanswered by the facts offered in support
of the guilty pleas. The first one is whether or not the event was
part of a planned escape attempt, and if so, how extensive and
sophisticated the plan was. The second issue of significance is
whether or not the weapon used in the assault to which Brenda
Morrison pleaded guilty was in fact a syringe, indeed, whether it
was possibly an HIV-infected syringe.
2.2.2 Whether
there was a planned escape attempt
Although the evidence suggests that the
events of April 22nd were not entirely spontaneous, it does not
support the conclusion that there was much planning, except possibly
for a short caucusing between inmates a few minutes before they came
to blows with the Correctional Officers. The facts tendered at the
hearing in support of a contention that the attempted escape was
planned do not, in my opinion, support that conclusion. These facts
include the alleged unusual behaviour of some of the inmates on the
evening of April 21st in not attending dinner. I cannot conclude
that any such unusual occurrences are sufficiently probative of a
plan to escape or otherwise, for me to draw any such inference. The
most probative evidence of planning is said to be that inmates
involved were wearing outdoor clothing such as short bomber jackets,
and that there would have been no reason for them to be dressed in
that fashion on the evening of April 22nd. No efforts were made
at the time to seize and preserve the clothing as evidence to
support a plan to escape. In the absence of such evidence, and in
light of the somewhat vague and in some cases contradictory
descriptions given on that point by the witnesses, I am unable to
conclude that the inmates were in fact clothed in such a way as to
indicate their intention to escape. I do not think that the other
evidence offered to support a conclusion of long-term planning leads
to that inference and I think that some of the evidence given, for
example, that one inmate the night before had requested that hot
dogs be individual wrapped, is entirely incapable of supporting that
conclusion.
However, I accept the evidence which
suggests that the assaults were not entirely spontaneous, but rather
the result of some collaboration on the part of at least some of the
inmates shortly before the incident began.
2.2.3 The
existence of a syringe
I believe that Officer Vance is firmly
convinced that she was stabbed with a syringe. I believe her
evidence that she formed that opinion at the time of the event, and
to this day, she is still persuaded that this was the case. I
believe that she gave her evidence honestly, and I do not find it
far-fetched or unreasonable for her to be of that opinion. However,
on the evidence before me, and again largely because of the
insufficiency of the search that was conducted at the time, and
possibly also as a result of the insufficiency of the observation
reports that were recorded by the correctional officers who had been
involved in the incident or its aftermath, it is impossible to
conclude with a sufficient level of confidence that a syringe was in
fact the weapon with which Officer Vance was stabbed.
In light of these conclusions, I cannot give
effect to the submissions by the Union that in all the
circumstances, a finding could be made that any of the assaults
perpetrated by the inmates on the staff revealed an intentional
attempt to kill. I add that no one was ever charged with attempted
murder.
2.2.4 The
significance of the incident
It is apparent from all the evidence that
the single most important feature of what took place on April 22nd,
which explains in part the behaviour of many of the parties involved
in the immediate aftermath of these events, was the profound breach
of trust that this unpredictable violent group attack on staff would
create. Fear and distrust were two dominant emotions that were
introduced in an environment in which fatigue, exasperation, even
resentment and anger are not unknown.
The incident had profound and long-term
effects on the correctional staff who were most directly involved.
Officer Metivier was off work for a year and no longer works at the
Prison for Women. Officer Boston took three months leave and no
longer works at the Prison for Women. Officer Fabio immediately
returned to work at the Prison for Women, but had difficulty putting
the events behind her. She ultimately transferred to another
institution. Officer Vance remained off work for seven months. She
attempted to return to work, but was unable to do so. She no longer
works at the Prison for Women, and indeed, has left the Correctional
Service of Canada. Officer Vance had come to the Correctional
Service with a B.A. in Women's Studies and Criminology, a background
in correctional work, and had joined the Correctional Service of
Canada for the specific purpose of working at the Prison for Women.
When examined from this distance, and
without by any means trivializing it, the brief incident of April
22nd looks objectively less serious than it was perceived to be by
the correctional authorities at the Prison for Women, and by the
staff members who were assaulted and their colleagues. On the other
hand, the sentiments and the emotions that it triggered were equally
real and the challenge that it posed to the prison management was to
deal with these two levels of reality.
2.2.5 Departures
from Correctional Service policy
Mace was used to subdue three of the inmates
involved in the April 22nd incident. Although Correctional Service
policy contains elaborate provisions with respect to decontamination
following the use of mace, in this case, decontamination was limited
to pouring some glasses of water over the inmates' eyes. The inmates
were taken to the Segregation Unit where they were locked in
individual cells. The Post Orders at the Prison for Women and the
usual practice, dictate that upon admission to segregation, an
inmate is strip searched in order that any weapons, drugs, or
incriminating evidence may be seized. Such strip searches were not
done on the inmates admitted to segregation on the evening of April
22nd. Nor were they searched during the following four days.
Consistent with Correctional Service policy,
the correctional staff involved in the April 22nd incident all
completed written observation reports. In a number of cases, the
reports were not completed, as is the usual practice, prior to the
departure of the Correctional Officers from the prison. A number of
reports were prepared over the period April 23rd to 25th, and in
almost every case they were prepared after consultations, formal and
informal, among the Correctional Officers involved.
Following the incident, the IPSO contacted
the Kingston Police to report on the event, but advised that they
not attend to conduct an investigation that night on the basis that
the correctional officers were preparing statements, that they did
not wish to be interviewed that night, and that there was no crime
scene requiring preservation. The police accepted that advice and
did not attend at the institution until Monday. No systematic search
of the area was conducted by prison authorities, nor was there a
concerted effort to identify, seize and retain evidence.
The detailed Use of Force Report, which
Correctional Service policy requires be completed after an incident
such as this, was completed in part over the following days.
Contrary to Correctional Service policy, it did not describe the
complete range of the use of force employed in connection with the
incident, nor did it contain any mention of a second macing of one
of the inmates. There was no report from a health care officer, no
proper reporting with respect to the use of mace, and no record of
the inmates being advised that they could provide their version of
the extent of the use of force to the Warden.
I will comment on these several departures
from policy in turn.
2.2.5.1 Failure to
follow decontamination procedures
(a)
Correctional Service policy
CD605
- USE OF FORCE (1993-09-29)
28. Staff members who may be required to use
firearms, CN or CS gas or authorized spray irritants in the course
of their duties, shall qualify with requalification to follow:
(a) every three years in the
use of CN and CS gas and authorized spray irritants
29. Following incidents where force has been
used, or restraint equipment applied to control an unruly inmate,
all affected persons shall be examined as soon as possible by health
care personnel and provided with treatment as required. Any
follow-up medical attendance shall be provided as deemed appropriate
by health care staff. The results of the examination and any
follow-up shall be recorded and a report forwarded to the
institutional head.
SECURITY MANUAL
- USE OF FORCE CHAPTER
21. As soon as possible, persons exposed to
gas or spray irritants shall be:
(a) moved from the immediate
area;
(b) allowed to shower, wash and
bathe their eyes;
(c) provided with a change of
clothing; and
(d) examined by a health care
officer and, if required, by the institutional physician.
The inmates who had been maced were not
decontaminated in accordance with policy. This raises a preliminary
question of the use of mace. Although there have been suggestions
that it is over-used, or was over-used at the Prison for Women,
there was no serious contention before me that alternatives were
preferable and that therefore the use of mace should be banned.
Throughout the timeframe in which these events unfolded, mace was
used on several occasions. On balance, on the basis of these
occurrences, I think it has been, in some instances, a preferable
alternative to other methods of intervention.
However, the decontamination procedures
contained in CD 605, and in the Security Manual, are important
for two reasons, and should be very strictly enforced. I do not
accept the position of the Correctional Service that the
decontamination in this case was adequate because it was supervised
by a qualified medical practitioner. This, in my view, addresses
only one of the reasons for extensive decontamination procedures. I
accept the evidence of Dr. Pearson that the inmates that she
did decontaminate by pouring water into their eyes were sufficiently
decontaminated to alleviate any medical concern. Some form of
decontamination is essential to protect the wellbeing of persons
subjected to mace, and failure to provide any decontamination, as
was the case when Ms. Paquachon was maced on April 24, 1994, is
a very serious deficiency.
However, the comprehensive use of spray
irritant and decontamination procedures contained in CSC policy
serve also another important purpose. Only staff members
specifically authorized to do so may use mace in the course of their
duties. These staff must receive periodic training. Further, the
Security Manual provides that as soon as possible, persons exposed
to gas or a spray irritant shall be (a) moved from the immediate
area; (b) allowed to shower, wash and bathe their eyes; (c) provided
with a change of clothing; and (d) examined by health care officers,
and, if required, by the institutional physician. Finally, the Use
of Force Reports require that the mace can be weighed after each
use, and that the weight be recorded, so that the amount of mace
used can be properly ascertained. These records were inadequately
kept in this case.
The purpose of these procedures is not
solely to ensure the physical wellbeing of people exposed to mace.
It brings home to those authorized to apply it that it is not a
routine procedure, and that every usage entails a set of operational
and reporting consequences. The existence of elaborate procedural
requirements often operates to discourage potential abuse. I believe
that this should be the case when spray irritants are used, and for
further control, I would recommend that additional supplies of spray
irritants to an institution should only be issued upon a review of
the Use of Force Reports in which the use of the spray is accounted
for. In short, the policy with respect to the use of mace was
appropriate, and if anything, should be reinforced. It was not
complied with in part because it was not known, or, in any event,
only the general medical concern for decontamination appears to have
been known. It is apparent that the undesirabilitty of using more
force than is necessary has to be brought home to those authorized
to use force; and these events demonstrate that the constraints
attached to the use of mace by the elaborate decontamination
procedures were totally ineffective in achieving the dissuasive
effect they should have had.
2.2.5.2 Compliance
with policy concerning Use of Force Reports
This represents the beginning of a long
series of deficiencies in reporting at the Prison for Women. This
deficiency appears to have been tolerated by the Correctional
Service, both at the Regional and the National level, and is not
inconsistent with some of its practices with respect to the adequate
completion of required documents.
With respect to the April 22nd incident, the
serious deficiencies in the only Use of Force Report prepared
constituted a violation of what had to be a known policy, since the
key policy requirements are apparent from the form used. Once again,
this is part of a general and obviously accepted pattern of
incomplete reporting.
The failure to account adequately for
incidents where force was used is a significant departure from
policy which, as illustrated by this case, does not serve CSC well.
Apart from communicating internally the nature of the incidents in
which force was used, the completion of the report brings home to
the person involved the seriousness of any interference with the
physical integrity of another person. The leadership for adequate
compliance with this policy requirement should come strongly at the
institutional level. In its final submissions, CSC suggested that
inadequate reporting on use of force should be remedied by the
adoption of an elaborate system of public annual reporting on Use of
Force Reports at the National level. This submission would require
the setting up of a bureaucratic effort that would not need to be
undertaken if the requirement were properly understood at the
institutional level. In any event, I see no reason why the addition
of this elaborate bureaucratic system of reporting would improve
compliance at the institutional level.
Particularly in the case of a serious and
unusual incident such as this one, the proper and thorough
completion of the required report is essential for the safeguarding
of all parties' interests in subsequent proceedings, including CSC
investigations, as well as internal and external charges.
2.2.5.3 Compliance
with policy regarding searches upon admission to
segregation
Although the Correctional Service in its
written submissions argues that the strip searching of inmates upon
admission into segregation is merely permissive, and not required by
either the law or the applicable Commissioner's Directive, it
concedes that strip searching of inmates in such circumstances is a
standard practice in the Service. The factual reason advanced for
not having conducted all the strip searches in this case is, that
there were too many inmates, insufficient staff, and that conditions
in segregation were basically just too hectic.
In light of the events in which they had
been implicated, it is absolutely clear that these inmates should
have been searched as soon as possible upon their admission into the
Segregation Unit, if for no other reason than to attempt to preserve
any evidence in relation to the incidents. The evidence indicates
that their placement in individual cells was relatively uneventful,
and it is difficult to accept that it would have been impossible to
perform a strip search of each inmate upon admission. Even assuming
that it was not possible to do it immediately, inmates placed in
segregation cells should have been searched in the course of the
rest of the evening and night of the 22nd. It is apparent from
subsequent events that the failure to search at the earliest
opportunity proved extremely unwise.
2.2.5.4
Investigation of the incidents
The failure to turn over immediately the
investigation of the April 22nd incident to the police was in breach
of Correctional Service policy as expressed in Commissioner's
Directive 581. The policy was known, since the police were
contacted. Officers involved should have been made available to the
police for interviews, or, at the very least, their observation
reports should have been fully completed prior to their departure
from the institution, and therefore prior to any opportunity for
their individual recollection to be tainted by their inevitable
subsequent discussions. Moreover, police intervention at the
earliest stage might have assisted in preserving the evidence and
directing the conduct of systematic searches, in particular given
the allegation respecting the syringe. This failure to follow sound
investigative policies had serious consequences in preserving the
basis upon which to ascertain what happened on that night. The
decision not to involve the police was ill thought out and
reflective of a general laxness with respect to the enforcement of
CSC policies.
2.3
The Segregation Unit at the Prison for Women, April 22-26,
1994
The April 22nd incident was seen as an
unprecedented assault on staff. It produced tremendous hostility,
resentment and fear among members of the staff at the Prison for
Women. The staff response was itself unprecedented, and included an
unwillingness to act upon the Warden's order to unlock the ranges,
and the holding of a demonstration demanding the transfer of the
women involved in the incident out of the Prison for Women and into
a special handling unit. (Special handling units house inmates seen
as extremely serious security risks in conditions of security,
isolation and with special programming. There are only two special
handling units in Canada - both male.) While some steps
were taken to try to reduce the level of trauma -
debriefings, further meetings with staff, sick leave for those most
affected - it is clear that those reactions persisted
among staff in the days and weeks that followed. Prison management,
and those in the Regional Headquarters and National Headquarters
were aware of the ongoing staff reaction.
It is also evident that for the inmates
involved, there were not the comparable opportunities to reduce the
emotional stress of the events which were available to the staff who
had debriefings, informal social gatherings, and the opportunity to
leave the institution to go home. On the contrary, the inmates were
placed in constant contact with the other inmates involved in the
incidents (together with a small number of other inmates already in
the unit by reason of individual personal crises), thereby making it
impossible to distance themselves from the events, and producing an
inevitable solidarity among them.
From the evening of April 22nd to the
evening of April 26th, there were extraordinary levels of unrest in
the Segregation Unit. There were also periods, sometimes whole
shifts, that were quiet or normal.
Previous experience at the prison indicated
that significant verbal abuse and "acting out" by inmates,
particularly if placed in segregation, was not unusual; nor was the
throwing of liquids, including bodily fluids such as urine.
From the beginning of these events, there
were periods in which the inmates were acting out, and engaging in
verbal abuse ranging from demands (for amenities or rights to which
they thought they were entitled and which were being denied),
through insults, and threats. Sometimes the noise level was so high
that the entire unit seemed to vibrate.
Commencing in the afternoon of April 24th,
the acting out included the throwing of food trays, juice, water,
and then urine.
Late on April 24th, one of the inmates who
had not been involved in the April 22nd event, Florence Desjarlais,
slashed herself. She was extremely upset and demanded to speak to
another inmate who was also in segregation and who had not been
involved in the assaults, Sandra Paquachon. The correctional staff
decided to let Florence Desjarlais speak to Sandra Paquachon from
the outside of the latter's cell. While she was there, Sandra
Paquachon put a sheet around Florence Desjarlais' neck and held a
nail to her head saying that she had a hostage. In response, the
correctional staff maced Sandra Paquachon and freed inmate
Desjarlais. Following the macing, Sandra Paquachon was not
decontaminated by anyone from health care; nor was she given a
shower.
Later that evening, another inmate in the
Segregation Unit who had not been involved in the April 22nd
incident attempted to hang herself. Correctional staff removed her
from her cell, stripped her of her clothing and moved her to a cell,
still in the dissociation side of the Segregation Unit, where it was
thought she could more easily be observed.
Commencing on April 25th, the periods of
acting out in the Segregation Unit included, on occasion, the
setting of small fires.
On the afternoon of April 26th, Dr. Robert
Bater, the Chair of the Citizens' Advisory Committee, visited in the
Segregation Unit and talked to a number of the inmates. He testified
that he did not feel threatened and was made to feel welcome by the
inmates.
Later, on the afternoon of April 26th,
Officer Ostrom, while patrolling the unit alone, was confined at the
end of the upper range by threats, apparently accompanied by the
swinging of items thought to be weapons. She was escorted from the
range by Correctional Supervisor Warnell, who was armed with a mace
can.
2.3.1 Issues
raised with respect to the operation of
segregation
2.3.1.1 The scale
of the disruption
One question raised by the evidence is
whether or not the collective behaviour of the inmates was of a
scale so unprecedented as to be unmanageable, and in my opinion the
answer to that question is no. Each inmate was lodged individually
in a segregation cell, and although at times their collective
behaviour was highly disruptive and, in some cases, assaultive to
persons who approached their cells, it is inconceivable to suggest
that between the evening of April 22nd up until the evening of April
26th, when the IERT was called in to intervene, nothing could have
been done to bring the situation in that unit under control.
2.3.2 Right
to counsel
2.3.2.1 The
law
Inmates placed
in segregation must be advised of their right to legal counsel and
given a reasonable opportunity to speak to a lawyer without
delay.
This simple and straightforward proposition,
however, must be extracted from the statutory, regulatory and policy
scheme set out below.
CHARTER
s.10 Everyone has the right on arrest or
detention
(b) to retain and instruct
counsel without delay and to be informed of that right
CCRA:
STATUTE
96. The Governor in Council may make
regulations
(w) providing for inmates' access to
(i) legal counsel and legal
reading materials,
CCRA:
REGULATIONS
97(2) The Service shall ensure that every
inmate is given a reasonable opportunity to retain and instruct
legal counsel without delay and that every inmate is informed of the
inmate's right to legal counsel where the inmate
(a) is placed in administrative
segregation; or
(b) is the subject of a
proposed involuntary transfer pursuant to section 12 or has been the
subject of an emergency transfer pursuant to section 13.
(3) The Service shall ensure that every
inmate has reasonable access to
(a) legal counsel and legal
reading materials;
COMMISSIONER'S DIRECTIVES
CD084 - ACCESS TO AND REPRESENTATION
BY LEGAL COUNSEL
4. In accordance with subsection 97 (2) of
the Regulations, an inmate shall be permitted to communicate with
legal counsel by telephone as soon as practicable, and in any case
within not more than 24 hours:
a. following placement in
administrative segregation;
b. following notification of a
proposed involuntary transfer;
c. following completion of an
emergency transfer.
CD085
- CORRESPONDENCE AND TELEPHONE COMMUNICATION
17. Inmates shall be given the opportunity
to retain legal counsel in accordance with Commissioner's Directive
084, entitled "Offender's Access to Legal Assistance".
COMMUNICATIONS WITH PRIVILEGED
CORRESPONDENTS
18. Telephone calls to those identified in
Annex "A" [which refers to legal
counsel] as authorized privileged correspondents, shall normally
be granted. Such calls shall be provided, subject to operational
constraints, during normal business hours. Inmates are required to
provide reasonable notice, of no less than 24 hours, of their
wish to communicate by telephone with privileged correspondents.
However, the institutional head may decide, depending on the
circumstances, that the reasonable notice is not required.
19. Calls between inmates and privileged
correspondents are normally confidential. They may however be
subject to monitoring if the conditions stipulated in Commissioner's
Directive 575 are met.
20. Should the institutional head or
delegate determine the need to restrict access to telephone
communication with privileged correspondents, he/she shall
communicate the rationale for the decision in writing to the inmate
and to the person concerned. Copies shall be forwarded to Regional
and National Headquarters.
CD540
- TRANSFERS
13. When an involuntary transfer is
proposed, or once an emergency transfer takes place, an inmate shall
be advised of his or her right to retain and instruct counsel
without delay, and afforded a reasonable opportunity to do so.
CD 590
- ADMINISTRATIVE SEGREGATION
13. Upon involuntary placement in
administrative segregation, an inmate shall be informed of his or
her right to retain and instruct legal counsel without delay, and
afforded a reasonable opportunity to do so.
PRISON FOR
WOMEN STANDING ORDERS
STANDING ORDER
86
9. Administrative Segregation Inmates shall
be afforded three (3) telephone calls per week to their lawyers.
Lawyer calls are normally to be completed during working hours
unless time differences necessitate an evening call. Calls to
lawyers after working hours shall be approved by the Correctional
Supervisor. Normally, the inmate's lawyer's telephone number shall
be verified with the Case Management Officer when the inmate enters
Segregation. In cases where this is not possible, the COII shall
place the phone call in an effort to verify that the call is to the
inmate's lawyer.
13. All segregation telephone calls are
regulated by inmate behaviour and staff availability. Telephone
calls shall be recorded in the log and limited to . . . twenty (20)
minutes for daytime lawyers' calls . . . If the lawyer cannot be
reached on the first call, additional reasonable attempts will be
made.
14. Telephone calls may be facilitated from
the inmate's cell for problematic inmates.
15. Documented contravention of rules and
regulations may result in suspension of telephone privileges until
reviewed by the Visits and Correspondence Board and the Warden.
STANDING ORDER
590
28. Where an inmate is segregated as a
result of an investigation of a criminal offence, she shall be
immediately advised of her rights, normally by the IPSO, and allowed
immediate telephone access to her lawyer.
PRISON FOR
WOMEN POST ORDER 430
ANNEX "B"
2. Lawyers' calls may be made in the
daytime.
4. Calls to lawyers are limited to three
(3) per week. These calls are to be accommodated during working
hours. Calls to lawyers after hours must be approved by the
Correctional Supervisor. The offender's lawyer's telephone number
shall be listed when the offender enters dissociation with the Case
Management Officer who will again verify and notify Segregation. The
telephone numbers will be dialled by the officer in the unit.
5. An offender who misuses this procedure
will forfeit her telephone privileges for one week.
9. All telephone calls are regulated by
offender behaviour and staff availability. The calls are to be
recorded in a log and limited in time, i.e. evening social calls
- 30 minutes, daytime lawyers' calls - 20
minutes, and free calls - 15 minutes.
10. If a lawyer cannot be reached it is
reasonable to try one more time. An offender is allowed reasonable
access to telephones to call her lawyer(s), and considering the
extensive duties in the unit, three calls per week to lawyers is
considered to be reasonable access.
65. A request for legal services from an
offender in the Segregation/ Dissociation Unit shall be referred
promptly to the offender's case management officer.
2.3.2.2 What
occurred
Throughout the period April 22nd to April
26th, inmates were neither advised of their right to counsel, nor
given access to counsel. Inmates' specific and repeated requests for
lawyers were denied. Indeed, this denial continued until April 29th.
Beginning on the morning of April 29th,
inmates were allowed to make 10 minute calls to lawyers. The memo
directed to correctional staff accordingly indicated that such calls
were to be "... depending upon individual behaviour".
On May 2, 1994, the minutes of the senior
managers' daily meeting known as the Operational Security Meeting
record "phone calls for lawyers - reasonable access
- no time limit". There is some conflict in the evidence
as to whether the time limits on lawyers' calls were actually
removed. The Post Orders and Standing Orders continued through the
period to impose restrictions beyond those suggested in these
minutes.
On June 24, 1994, the prison issued a set of
revised Segregation Procedures which specifically referred to the
requirement of the Regulations and the directive noted above, and
further elaborated that lawyers' calls could not be restricted to
working hours, or to three attempts to reach the lawyer in the
course of a week.
The applicable Standing and Post Orders at
the prison do not reflect the legal obligation to advise of, and
facilitate immediate access to counsel. The evidence of the Warden
and Deputy Warden indicated that the general approach to this issue
within the prison was that inmates were not advised of their rights,
were not granted access to counsel on the weekends, and that
telephone calls were based on behaviour.
The evident lack of knowledge of the
applicable legal principles was repeated in a briefing note prepared
for the Commissioner shortly before he testified in these
proceedings. That note proceeds largely on the basis of a discussion
as to whether or not the Standing Order was complied with, without
regard to the important fact that compliance with the Standing Order
does not constitute compliance with the law. This is clearly a case
where administrative directives obscure the simple legal
requirement, rather than facilitate its enforcement.
2.3.2.3 Denial of
legal obligation drawn to the attention of the Correctional
Service
It is has been noted that inmates made
specific requests for counsel which were denied. They repeated their
concerns in the complaints and grievances filed on this matter which
are described below. Other people also brought the failure to meet
the legal obligations to the attention of the Correctional Service.
The Executive Director of CAEFS raised
concerns with the Warden and Deputy Warden in late April of 1994.
She also testified that she believed she advised the Commissioner
during a meeting with him in early May that access to counsel had
not been provided.
The denial of the right to counsel was also
raised as a complaint in the course of the habeas corpus applications launched in June
following the transfer of a number of the inmates to the Regional
Treatment Centre.
During the course of this inquiry, the
Correctional Service ultimately acknowledged that the legal
obligations concerning inmates' rights to counsel were not met in
this case. The Commissioner specifically acknowledged that he had
been aware since the release of the Correctional Investigator's
report that the obligation had been breached.
2.3.2.4 Response
of the Correctional Service
The Service does not appear to have taken
any steps at any stage to respond to the early indications and
subsequent confirmation that this important legal obligation was not
met.
On the contrary, in the case of the habeas corpus application, the response of
the Service was to deny any breach of the obligation. The sworn
evidence filed with the court on behalf of the Service was
misleading and inaccurate. The evidence stated:
Access to legal counsel has
been provided constantly. However, it was limited when security
staff was engaged with putting out fires, avoiding objects being
thrown at them, and generally trying to restore calm to the unit. To
the best of my knowledge, counsel was able to visit the applicant
and other inmates on April 29, 1994.
Obviously none of that is pertinent to the
Service's obligation to inform inmates of their right to counsel, an
obligation that police officers discharge routinely in much more
adverse and dangerous circumstances.
Moreover, the evidence is that whatever the
relevance of security concerns, there were many times from April
22nd on when there was no activity of the sort described above and
during which access to counsel could safely and easily have been
provided. Not only was there no communication with counsel until
April 29, 1994, counsel did not visit any of the inmates until May
3, 1994.
2.3.2.5
Findings
It is clear that the right to counsel was
largely unknown. It is equally clear to me that even when the
existence of that important legal right was brought to the attention
of several witnesses while they testified, many indicated a lack of
appreciation of the importance, or purpose of such legal
entitlement, and of the need to comply with it. One can fairly
predict that unless some sanction is attached to the lack of
compliance, the entitlement to legal assistance upon placement in
segregation will remain largely illusory. This is an instance where,
although the law is clear, it was largely unknown to those
responsible for administering it; it also does not seem that the law
is perceived within CSC as particularly appropriate. This assessment
is entirely at odds with the importance attached to this right in
all other elements of the criminal justice system. The suggestions
advanced in the evidence that the right to counsel could not be
complied with because of the behaviour of the inmates is entirely
unacceptable, first, because it is not supported by the evidence,
and secondly, because even taking the events at their most
disruptive level, it could not provide for an excuse for failure to
comply with the law. This is particularly so when one considers the
legal obligation to at least inform the inmates of their right.
Nothing in their behaviour could dispense the Correctional Service
from discharging that modest obligation.
I will address in Part II of this report the
appropriate sanctions that should be developed to ensure compliance
with that and other important legal requirements.
I will return later to the issue of the
inaccurate and misleading evidence given the court on this issue.
2.3.3
Exercise
2.3.3.1 The
law
The law
requires that the Service take all reasonable steps to ensure that
each inmate has one hour of exercise a day outside if the weather
permits, and inside if it does not.
This emerges from the provisions found
below.
UN STANDARD
MINIMUM RULES FOR THE TREATMENT OF PRISONERS
RULE 21
Every prisoner who is not employed in
outdoor work shall have at least one hour of suitable exercise in
the open air daily if the weather permits.
CCRA:
REGULATIONS
83(2) The Service shall take all reasonable
steps to ensure the safety of every inmate and that every inmate is
(d) given the opportunity to
exercise for at least one hour every day outdoors, weather
permitting, or indoors where the weather does not permit exercising
outdoors.
COMMISSIONER'S
DIRECTIVE 590 - ADMINISTRATIVE SEGREGATION
CONDITIONS OF CONFINEMENT
23. Inmates in administrative segregation
shall be accorded the same rights, privileges and conditions of
confinement as those inmates in the general inmate population except
for those that:
a. can only be enjoyed in
association with other inmates; or
b. cannot reasonably be given
owing to limitations specific to the administrative segregation
area, or security requirements.
24. Irrespective of the limitations referred
to above, inmates in administrative segregation shall be provided
with:
c. recreational activities;
CD760
- LEISURE ACTIVITIES
EXERCISE
5. Unless there are reasonable grounds that
the security of the institution or the safety of any person would be
jeopardized, every inmate shall be given the opportunity to exercise
outdoors for at least one hour every day, or indoors when weather
does not permit outdoor exercise.
PRISON FOR
WOMEN POST ORDERS
26. Offenders who are housed in the
Segregation/Dissociation Unit shall be allowed a period of exercise
daily of not less than one (1) hour per day.
27. Whenever weather permits, the outside
Segregation/Dissociation exercise yard shall be used for the
exercise period of one (1) hour. In inclement weather, the corridor
area outside of the dissociation cells shall be used to exercise
offenders housed in the dissociation area and Segregation Unit or
offenders shall be escorted to the gymnasium for one (1) hour of
exercise.
2.3.3.2 What
occurred
Inmates in administrative segregation at the
Prison for Women, including those not involved in the
April 22nd incident, were denied daily exercise for over a
month, from April 22 until May 24, 1994.
It appears that the resumption of exercise
on May 24th resulted from a representative of the Correctional
Investigator raising concerns with the Warden. Even after daily
exercise was resumed, it continued to be subject to constraints
which are not in accordance with the legal obligation. In at least
one instance, there is a record of inmates being advised that their
exercise privilege would depend upon their daily cleaning of their
cells. On another occasion, the applicable instructions indicate
that inmates on the dissociation side of segregation were to receive
only one half hour of exercise. In another case, management minutes
indicate that exercise will only be offered "when possible" and
state that an inmate refusal to exercise may result in future
reductions in the amount of time available for exercise.
Inmates who were transferred to the Regional
Treatment Centre had their right to daily exercise restored on May
13, 1994.
The principal reason advanced for the denial
of exercise was a general concern about safety and security. It does
not appear that anyone within the Correctional Service seriously
focused on the extent to which the denial of exercise was an
infringement of the rights of the inmates and a violation of the
law.
2.3.3.3
Findings
The prolonged deprivation of daily exercise
to inmates in segregation was in serious contravention of the
Regulations and, I would have thought, was a serious departure from
Correctional Service policy. I hesitate in the latter conclusion
because of the suggestion, in the evidence of many Correctional
Service witnesses, that the operational policy of the Service is
that daily exercise is always subject to security concerns, and that
the security concerns perceived to exist in this case justified the
denial of exercise. Indeed, in written submissions, the Correctional
Service puts forward the following proposition:
An interpretation of
"recreational activities" that requires exercise to be given
irrespective of security requirements is absurd and would exceed the
"all reasonable steps" requirement of the Regulations.
In response to that position, I can only say
that I do not think it is absurd to suggest that a person should not
be kept locked up in a small cell 24 hours a day, and that if there
were security concerns, they should be dealt with otherwise than by
simply denying an inmate an opportunity to step out of her cell.
Moreover, if security considerations were to prevent the removal of
a segregated inmate from his or her cell for one hour on a given
day, I see no basis for that ever to be more than occasional. In any
event, I find nothing in this case to suggest that there were ever
security concerns of such magnitude that exercise should have been
denied on any single day, to all segregated inmates.
If one reflects on the cause for this
departure from policy, it would appear that if not the law, the
operational policy of providing exercise was well known; "yard", as
it is called, is routinely provided. It is therefore not comparable
to the denial of right to counsel upon admission to segregation.
However, once again it seems that even if the law is known, there is
a general perception that it can always be departed from for a valid
reasons, and that, in any event compliance with prisoners' rights is
not a priority. At best, denial of exercise can be attributed here
to inadequate staffing. More realistically, it was part of a general
punitive attitude which required inmates to earn entitlements to
everything perceived as a privilege, rather than a right.
2.3.4 Other
rights, privileges, and conditions of confinement for those in
segregation
2.3.4.1 The
law
Inmates in
segregation are to be treated exactly the same as other inmates
unless that is impossible because of the nature of limitations
inherent to segregation, or which result from security requirements.
This general proposition emerges from the
provisions set out below.
CCRA:
STATUTE
37. An inmate in administrative segregation
shall be given the same rights, privileges and conditions of
confinement as the general inmate population, except for those
rights, privileges and conditions that
(a) can only be enjoyed in association with
other inmates; or
(b) cannot reasonably be given owing to
(i) limitations specific to the
administrative segregation area, or
(ii) security requirements.
CCRA:
REGULATIONS
83(2) The Service shall take all reasonable
steps to ensure the safety of every inmate and that every inmate is
(a) adequately clothed and fed;
(b) provided with adequate
bedding;
(c) provided with toilet
articles and all other articles necessary for personal health and
cleanliness...
CD 590
- ADMINISTRATIVE SEGREGATION
23. Inmates in administrative segregation
shall be accorded the same rights, privileges and conditions of
confinement as those inmates in the general inmate population except
for those that:
a. can only be enjoyed in
association with other inmates; or
b. cannot reasonably be given
owing to limitations specific to the administrative segregation
area, or security requirements.
24. Irrespective of the limitations referred
to above, inmates in administrative segregation shall be provided
with:
a. case management services;
b. access to spiritual support;
c. recreational activities;
d. psychological counselling;
and
e. administrative, educational and health
care services.
PRISON FOR
WOMEN POST ORDER 430
19. The officer in charge of the
Segregation/Dissociation Unit on the day shift shall be responsible
for ensuring that an adequate supply of clean clothing and bedding
is available in the unit to cover a 24 hour period, or if the
working day is a Friday or the day preceding a statutory holiday,
that an adequate supply of clean clothing and bedding is in place to
cover the unit for the weekend or holiday period.
21. Offenders admitted to the Segregation
Unit shall be permitted their own clothing and bedding in the unit
and shall be permitted laundry privileges on a regularly scheduled
basis as per the unit routine.
31. Offenders in the Dissociation Unit shall
be permitted bathing (including hair care) privileges not less than
three (3) times per week.
35. Offenders housed in the Dissociation
Unit shall be issued a clean supply of bedding, towels, and outer
garments (if necessary) when released for bathing.
41. All garbage and unused foodstuffs shall
be picked up promptly at the conclusion of each meal and placed in
the garbage container provided. At no time shall garbage be allowed
to accumulate within the unit.
55. Offenders housed in the
Segregation/Dissociation Unit under administrative segregation shall
be allowed their canteen issue.
56. Offenders housed in the Segregation Unit
shall normally be allowed full canteen privileges.
57. All offenders in the
Segregation/Dissociation Unit shall be allowed access to the reading
materials provided by the institutional library. Segregation
offenders shall be permitted to visit the library and make their own
reading selections at pre-arranged times. Dissociation offenders
shall discuss their reading preferences with the librarian, who
shall ensure that materials are made available to these offenders. A
selection of reading materials shall be available within the
institution at all times.
58. Offenders housed in the
Segregation/Dissociation Unit may request in writing specific
reading materials from the institutional library. These written
requests shall be referred promptly to the librarian.
59. A collection of legal materials
including CSC policy manuals is held in the institutional library
and shall be brought to the Segregation/Dissociation Unit upon
written request.
60. Officers on duty in the
Segregation/Dissociation Unit shall issue bibles to offenders housed
in the area upon request.
62. Offenders housed in the
Segregation/Dissociation Unit under administrative segregation may
be allowed to participate in the hobbycraft program if approval is
received from the Segregation Review Board.
63. A case management officer shall be
assigned to all offenders housed in Segregation/Dissociation and
shall make regular visits to the unit to address their needs.
64. Offenders housed in the
Segregation/Dissociation Unit shall be permitted access to personal
and institutional legal material. Personal legal documents may be
kept in an individual offender's cell.
67. The officers on duty in the
Segregation/Dissociation Unit shall ensure that the general level of
cleanliness and sanitation of the unit is maintained and that no
garbage is allowed to accumulate within the unit.
68. It should be the responsibility of each
officer posted in the Segregation/Dissociation Unit to ensure that
the offenders in her care are treated at all times in a polite and
respectful manner, and that the privacy of each individual offender
is ensured. An officer shall not discuss an offender or anything
pertaining to an offender in the hearing of another offender. An
officer shall ensure that her actions do not show preference or
prejudice toward any offender based on race, religion, nationality,
sexual orientation, category of offence or political belief.
ANNEX
"B"
1. An offender, who is, for the most part
serving her sentence in segregation, telephone privileges must be as
close to that of the general population as possible. Access to the
telephones from 1800 to 2100 hours is limited only by the number of
staff in the unit.
2.3.4.2 Usual
practices at the Prison for Women
Prior to these events, and subject to the
significant omissions noted above, according to the evidence of CSC
witnesses the Segregation Unit was generally operated in a manner
consistent with these legal requirements. For example, with respect
to personal belongings, the policy was that inmates who were
admitted for less than five days would be provided with toiletries,
a change of clothing, writing material, reading material and
tobacco.
The Post Order required inmates to be
provided with bathing (showers) not less than three times a week (in
practice, Monday, Wednesday and Friday). It required officers on
duty to ensure that the general level of cleanliness and sanitation
in the unit was maintained and garbage was not allowed to
accumulate. It required that inmates' telephone privileges should be
as close to those of the general population as possible, thereby
requiring regular provision of telephone calls.
In practice, bedding (sheets, blankets and
pillowcases) and clothes were laundered regularly, approximately
once a week, and the unit was cleaned as required, usually daily.
Because the inmates were confined to their
cells in segregation, items to which they were normally entitled
were brought to them by the officers, either during their half hour
rounds, or in response to a request called out to the officer
between rounds (for example, for telephone calls, soft drinks from
their canteen, etc.). Many of their possessions (canteen, crafts,
books, etc.) were kept in a foot locker outside their cells and were
provided to them on request. (I should note that at all times, the
only way for an inmate in segregation to contact a Correctional
Officer between rounds was by shouting, since the size and height of
the unit and the background noise permit no other form of
communication.)
The Segregation Unit could not comply with
the letter or intent of the law in one significant way. As noted
earlier, for most of the period in which the inmates in question
were segregated, the Segregation Unit was not wired in a fashion
which would enable the provision of electrical appliances, including
television or radio. Until that was corrected, shortly before the
inmates' release, one of the significant ways in which the inmates
in segregation might have received external stimulation was denied,
contrary to the CCRA. In addition, and
as already noted, there were no facilities in which adequate
programming within the Segregation Unit could be provided. In cases
of long-term segregation, these shortcomings have disastrous
consequences.
2.3.4.3 What
occurred
In this case, the governing direction from
the Warden in place from early April 23rd was that nothing was
to be given to the inmates. The interpretation of this instruction
varied somewhat depending upon who was on duty. In general, though,
the regime was one of denial. Virtually none of the rights,
privileges and conditions of confinement available in the general
prison population or ordinarily available in segregation were
provided.
Inmates were given bedding and meals, and
from time to time some toothpaste, but not necessarily a toothbrush,
toilet paper and, in some cases, soap, a towel, facecloth and
pyjamas.
In addition to being denied their legal
entitlements with respect to access to lawyers and exercise, they
were denied telephone calls to others, including to the Correctional
Investigator, books and activities, showers, cleaning, and the
removal of garbage accumulation. As well, the segregation logs
record frequent refusals of their requests for socks, clothing, ice,
lights, pop and toilet paper.
They were denied visits from the Inmate
Committee members, from members of the Peer Support Team (a group of
specially trained inmates who support each other in times of
crisis), and spiritual support.
On the evening of Sunday, April 24th,
officers were directed not to speak to the inmates, and two days
later they were directed not to do rounds.
That same evening, the water was shut off
and remained off until Monday afternoon, when it was turned on and
the inmates were advised that if there were any problems, it would
be turned off again. The evidence indicated that the only reason for
turning off water would be flooding, although there was no
indication that flooding had occurred. Indeed, turning off the water
appears to have aggravated the behaviour of the inmates and
increased the throwing of urine.
In general terms, the reasons advanced for
the denial of these rights and privileges were linked to the
behaviour of the inmates. Not all these restrictions can be
rationally attributed to security or safety concerns. They were more
an attempt to reward good behaviour and punish bad. Even at that,
much seems to have been governed by the discretion of individual
staff members, and there was often no appropriate link between
behaviour and denial. For example, after a period of disruption on
the 24th, the inmates were reported to have quietened down.
Thereafter, Correctional Supervisor Gillis ordered that five of the
inmates were to get nothing and no one was to speak to them. The
ostensible causal link between an improvement in behaviour and a
further denial of rights and privileges was not one which
Correctional Supervisor Gillis could explain. Nor is it clear that
turning off the water following an episode of urine throwing should
be expected to diminish, rather than increase, the potential for
further throwing of urine, particularly since the toilets inside the
cells could be centrally flushed from the outside.
It is particularly striking that the
question of whether the denial of rights and privileges would
escalate an already disruptive situation was never addressed.
Indeed, during the course of this inquiry when this proposition was
suggested to senior Correctional Service representatives, some
appeared to express surprise and interest in the novelty of the
suggestion.
2.3.4.4 Overworked
and overstressed correctional staff
As has been noted, there was evident
resentment, hostility, frustration and fear among the staff at the
Prison for Women following the April 22nd incident. Indeed, the
evidence indicates some staff members were breaking down on their
posts.
In these circumstances, the Warden
recognized that it would not be appropriate to have any correctional
officer who had been directly involved in the April 22nd incident on
duty in the Segregation Unit. Nonetheless, at least one officer was
in the unit on a number of occasions, not on permanent assignment,
but for tasks associated with putting out fires, conducting escorts
and otherwise.
It is also clear that the April 22nd
incident had a significant impact on most of the officers at the
Prison for Women, including those not directly involved in the
incident. For those officers who were assigned to the Segregation
Unit, the evident stress was substantially compounded by the
difficult conditions in the unit. Despite those conditions, a number
of the small group of officers that worked in the Segregation Unit
from April 22nd to 26th received repeated, and in some cases
lengthy assignments in the Segregation Unit.
The most notable example was Officer Power
who worked a total of 64 hours, most of them in segregation, from
April 22nd to April 26th. Despite the inordinately stressful effect
of these lengthy assignments, she was selected as one of two female
officers to assist the Institutional Emergency Response Team, though
she had to step down because when she put on the necessary
equipment, she began to hyperventilate.
Although Officer Power's situation was the
most extreme example, other officers worked extended periods in
segregation, sometimes in combination with shifts elsewhere in the
prison.
Officer Ostrom did not work multiple shifts
in segregation during the period in question. However, the incident
in which she was involved on the upper range in segregation was
extremely upsetting and stressful to her. It was seen as a
precipitating event in the decision to call in the IERT.
Nonetheless, immediately following this event, the Warden considered
her an appropriate candidate to assist the IERT in the strip
searches of the inmates. Although ultimately she did not assist,
this was not as a result of any assessment that, given her
experiences earlier in the day, such an assignment would not be
appropriate.
There were 67 CX1's and CX2's employed at
the Prison for Women during the April 22nd and 26th period. Even
allowing for the number that could be expected to be on rest days
during that period, well over 40 remained. There seems to have been
no serious attempt to make use of this broader range of staff, or to
call in staff from other institutions, in order to provide a
rotation of officers in the Segregation Unit who were not
overburdened by repeated and overly lengthy assignments.
I have no doubt that the Warden of the
institution was sensitive to and concerned about the emotional
reaction of her staff and about their wellbeing. However, rather
than responding through an appropriate use of fresh and uninvolved
staff from the Prison for Women or from other institutions, the
prison administration yielded to the view shared by staff that these
inmates should be placed in a special handling unit, by imposing a
regime of punitive conditions in segregation.
The evidence raises the issue of the extent
to which there were instances of punitive behaviour by correctional
staff towards inmates. The evident and often understandable
frustration and stress felt by officers is clear, both from the oral
evidence, and from some of the entries in the segregation log. The
fact that this frustration and impatience with inmates finds its way
into the segregation log reinforces the impression given by the
direct evidence of the inmates who testified, and by the written
complaints of others, that many of the responses to events in the
Segregation Unit from April 22nd to 26th were the product of
frustration, stress and overwork, among staff assigned to a
dysfunctional unit without the guidance of a rational correctional
strategy.
The evidence indicates that fresher and less
emotionally involved staff members might have been able to assist in
the dissipation of the crisis atmosphere in the Segregation Unit.
For example, Correctional Supervisor Gillis, who was not regularly
in attendance in the unit and therefore not subject to its
pressures, appears to have had some success in reducing tension
during his attendance in the unit to assist in cleaning it up. On
this occasion, his apparent attempts to break the ice resulted in
the inmates laughing, quietening down, and trying to negotiate with
him. This interaction with the inmates was in contrast to the
apparent general lack of such interaction from senior members of the
prison staff. Unfortunately, Correctional Supervisor Gillis'
initiative was neither capitalized upon nor repeated.
2.3.4.5
Findings
(a)
Generally
The denial of rights and privileges in the
Segregation Unit between April 22nd and April 26th was in
contravention of the applicable law and policy. This was clearly
based on a managerial strategy for handling the situation in the
unit. It was an ill advised strategy which, in my opinion,
contributed to an escalation of the situation. Rather than assisting
the authorities in controlling the unit, it forced them to abandon
any hope, at least in their own minds, of ever doing so. It was
apparent early on that this was not effective. The fact that the
policy of "they get nothing" was never changed, even after the
intervention of the IERT, raises serious questions as to whether it
was indeed merely a managerial strategy to control the unit, or
whether it was, in part, the manifestation of a punitive attitude
which would be a more serious contravention, not only of the
policies, but of the law.
(b) Overworked and
overstressed correctional staff
In light of the unavailability of an
immediate emergency transfer of the inmates involved, it should have
been apparent that the only way to diffuse the inevitable tension
was to ensure that staff members who had been directly or indirectly
involved in these incidents not be assigned to the Segregation Unit.
Further, it was also clear that the unit was a demanding post, and
it was highly inadvisable to assign overworked staff members to that
unit. Also problematic is the lack of involvement of senior managers
in the unit. Although they attended the Segregation Unit at various
points, except for Correctional Supervisor Gillis, virtually no one
attempted any form of direct interaction with the inmates. More
direct interaction between senior managers and the inmates in
segregation might have assisted in resolving of the tension. Even if
not, I believe that it would have contributed to a better awareness
by management of the undesirability of maintaining a highly
confrontational approach to managing the unit.
(c) The potential
for mediation or assistance from others
From April 22nd on, the prison virtually
closed in upon itself. Whatever can be said now about the likelihood
that any outside intervention would have produced desirable results,
it is not healthy for victims and aggressors to be locked in with
each other, without intervention from anyone from the outside,
particularly when the victims are the custodians of the aggressors.
At that time more than at any other, it is imperative that openness
prevail, and that every effort be made to involve persons or groups
who, at more peaceful times, interact so effectively with both
inmates and staff at the prison.
(d) Assessment of
the management of the Segregation Unit between April 22nd and
26th
The physical layout of the Segregation Unit
at the Prison for Women presented a real challenge for management in
a case such as this where a large number of inmates who had been
involved together in an incident were placed in segregation. The
two-tier, open-bar cell layout is conducive to further interaction
between inmates and poses difficulties for staff in relating to
segregated inmates on a one-to-one private basis.
Furthermore, the conduct of the inmates
during these four days was also, by all accounts, at times highly
disruptive and, no doubt, threatening, particularly for staff
members who were still traumatized from the earlier assaults. To
what extent, if any, this conduct was attributable to the inmates
being intoxicated, cannot now be ascertained. Dr. Pearson
thought they were. Little corroborative evidence was obtained.
Finally, the unusual pressures brought upon
management by the staff going public with their demands for relief,
in the form of the demonstration that took place outside the prison
walls calling for the transfer of the segregated inmates to a
Special Handling Unit, added to the tense and adversarial conditions
in which the Segregation Unit had to be operated. The fact that the
inmates knew of the demonstration worsened that tension.
Having said that, in my opinion, the unit
was poorly managed during these four days, and most importantly, was
not operated in accordance with explicit legal or policy
requirements. The failure to provide the inmates with what they were
entitled to while in segregation, if not intentionally punitive,
could only be perceived as such by the inmates. This produced an
escalation of anger and confrontation, and any hope that this
unlawful "tough line" would wear out the agitation demonstrated by
the inmates was ill-conceived and proven wrong.
The most troubling issue from my point of
view, is the attitude of CSC, throughout this inquiry, vis à vis these issues. It is only when
virtually all the evidence had been thoroughly scrutinized at the
hearings that CSC conceded that access to counsel during the period
of April 25th to 29th was improperly denied. Even then, counsel
for CSC urged the Commission not to conclude that the denial of
right to counsel was reflective of the usual standards met by the
Correctional Service staff with regard to observance of legal and
policy requirements. It was not within the ambit of this inquiry to
scrutinize the level of legal compliance throughout the Service and
I therefore have little basis upon which to conclude that the
shortcomings at the Prison for Women were an aberration. We made
some modest attempts to establish a comparative base by requesting
from CSC some sample documents - such as Use of Force
Reports, record of daily visits and segregation reviews
- from other institutions. On the basis of that
material, Mr. Graham acknowledged that the record of daily
visits was unreliable, and could not establish if that important
obligation was discharged. Certainly with respect to right to
counsel, access to daily exercise, daily visits to segregation by
institutional heads, and so on, the evidence indicates that these
legal requirements were largely unknown, virtually at all levels, at
the Prison for Women. In addition, the Commission heard evidence of
a widespread concern that as recently as 1993, institutions in the
Ontario Region were not appropriately cognizant or respectful of
their legal obligations with respect to ensuring the right to
counsel upon admission to segregation, delivering appropriate
programs to segregation inmates, and ensuring that daily visits to
segregation took place. Interestingly, the Prison for Women was not
included in the efforts by the Ontario Region to assess and address
these concerns. Although the Correctional Service assigns to the
Regional Deputy Commissioner a "unique responsibility" to ensure
that the Charter of Rights and Freedoms
is observed, Mr. Graham testified that he did nothing specific
in respect of that responsibility. If the Correctional Service
wished to assert that the usual standards of legal compliance in the
Service were considerably different from the ones I observed at the
Prison for Women, it should have offered some evidentiary basis to
support that proposition.
Not only was nothing of the sort done, but
significantly in my view, when the departures from legal
requirements in this case became known through this inquiry's
process, their importance was downplayed and the overriding public
security concern was always relied upon when lack of compliance had
to be admitted. This was true to the higher ranks of the
Correctional Service management, which leads me to believe that the
lack of observance of individual rights is not an isolated factor
applicable only to the Prison for Women, but is probably very much
part of CSC's corporate culture.
(e) The alleged
racial slur by a staff member
The last issue that must be addressed with
respect to the events between April 22nd and 26th is the
alleged utterance of a racial slur by Officer Anne Power.
Only two inmates were called to testify. In
their evidence, they alleged that Officer Anne Power addressed one
or more Native inmates with the following statement: "Why don't you
go hang yourself like the other Native girls". The Correctional
Investigator's records show that these allegations were first made
to the Correctional Investigator by at least three inmates in May of
1994. In her testimony, Officer Power denied having made that
statement and she was not cross-examined on her denial. It was not
the purpose of the inquiry to determine whether Officer Power made
that statement, and therefore not all potentially available evidence
on that issue was called. On the evidence before me, I am not
satisfied that Officer Power did make the statement attributed to
her. I do not find incredible the proposition that a statement of
that nature might have been made by someone during the period of
time under investigation. However, in light of the serious
discrepancies in the evidence of the inmates as to the circumstances
under which this statement was alleged to have been made, and in
view of my rejection of their evidence with respect to the April
22nd incident, I find no basis in the evidence upon which to reject
Officer Power's sworn denial of this allegation.
2.4
The Strip Search of April 26-27, 1994
2.4.1 The
law
Men may not
strip search women. The only exception is where the delay in
locating women to conduct the search would be dangerous to human
life or safety, or might result in the loss of evidence.
No one can
apply restraints to an inmate as punishment, or participate in any
cruel, inhumane or degrading treatment or punishment of an inmate.
These simple, clear propositions emerge from
the provisions set out below.
CCRA:
STATUTE
46. In sections 47 to 67
"strip search" means
(a) a visual inspection of the
naked body, in the prescribed manner, and
(b) a search, in accordance
with any applicable regulations made under paragraph 96(l), of all
clothing, things in the clothing, and other personal possessions
that the person may be carrying;
49(3) Where a staff member
(a) believes on reasonable
grounds that an inmate is carrying contraband or carrying evidence
relating to a disciplinary or criminal offence, and that a strip
search is necessary to find the contraband or evidence, and
(b) satisfies the institutional
head that there are reasonable grounds to so believe,
a staff member of the same sex as the inmate
may conduct a strip search of the inmate.
(4) Where a staff member
(a) satisfies the requirements
of paragraph (3)(a), and
(b) believes on reasonable
grounds that the delay that would be necessary in order to comply
with paragraph (3)(b) or with the gender requirement of subsection
(3) would result in danger to human life or safety or in loss or
destruction of the evidence,
the staff member may conduct the strip
search without complying with paragraph (3)(b) or the gender
requirement of subsection (3).
67. Reports in respect of searches conducted
pursuant to sections 47 to 66, and in respect of the seizure of
items in the course of those searches, must be filed where required
by regulations made under paragraph 96(o) and in accordance with
those regulations.
68. No person shall apply an instrument of
restraint to an offender as punishment.
69. No person shall administer, instigate,
consent to or acquiesce in any cruel, inhumane or degrading
treatment or punishment of an offender.
70. The Service shall take all reasonable
steps to ensure that penitentiaries, the penitentiary environment,
the living and working conditions of inmates and the working
conditions of staff members are safe, healthful and free of
practices that undermine a person's sense of personal dignity.
CCRA:
REGULATIONS
45. A strip search shall consist of a visual
inspection of the person by a staff member, in the course of which
inspection the person being searched shall undress completely in
front of the staff member and may be required to open the person's
mouth, display the soles of their feet, run their fingers through
their hair, present open hands and arms, bend over or otherwise
enable the staff member to perform the visual inspection.
46. A strip search and a body cavity
search shall be carried out in a private area that is out of sight
of every other person except for one staff member of the same sex as
the person being searched, which staff member is required to be
present as a witness unless, in the case of a strip search, the
search is an emergency as described in subsection 49(4) of the Act.
52(1) Subject to subsection (3), where a
staff member believes on reasonable grounds that contraband or
evidence of an offence is located in an inmate's cell, the staff
member may, with the prior authorization of a supervisor, search the
cell and its contents.
(2) Subject to subsection (3), where a staff
member searches an inmate's cell and its contents pursuant to
subsection (1), another staff member shall be present at all times
during the search.
(3) A staff member is not required to obtain
an authorization or conduct a search in the presence of another
staff member in accordance with subsections (1) and (2),
respectively, where the staff member believes on reasonable grounds
that delaying a search in order to comply with those subsections
would result in danger to the life or safety of any person or the
loss or destruction of contraband or evidence.
53. Where an emergency occurs and the
institutional head believes on reasonable grounds that contraband or
evidence that relates to the emergency is located in the cells, the
institutional head may authorize a search of cells and their
contents by a staff member.
58(1) A person who conducts a search
pursuant to any of sections 47 to 64 of the Act shall prepare and
submit to the institutional head or a staff member designated by the
institutional head, as soon as practicable and in accordance with
subsection (4), a post-search report respecting the search where
(a) the search is a non-routine
strip search conducted pursuant to any of subsections 49(3) and (4)
and 60(2) and (3) and paragraph 64(1)(b) of the Act;
(b) the search is a search
conducted pursuant to section 51 or 52 of the Act;
(c) the search is a routine
strip search in which force was used;
(d) the search is an emergency
search of an inmate, a vehicle or a cell; or
(e) the staff member or other
authorized person seizes an item in the course of the search.
(4) A post-search report shall be in
writing and shall contain
(a) the date, time and place of
the search;
(b) a description of every item
seized;
(c) the name of the person
searched, the number of the room or cell that was searched or the
licence number of the vehicle searched, as applicable;
(d) the name of every person
conducting the search and, where applicable, the name of every
person present during the search;
(e) the reasons for the search;
(f) the manner in which the
search was conducted;
(5) Every person to whom a search relates,
or from whom any item is seized in the course of a search referred
to in subsection (1) or (2), shall have access, on request, to the
post-search report respecting the search or seizure.
(6) Every post-search report shall be
retained for a period of at least two years after the date of the
search to which it relates.
CRIMINAL CODE,
R.S.C. 1985, c.C-46
25(1) Every one who is required or
authorized by law to do anything in the administration or
enforcement of the law
(a) as a private person,
(b) as a peace officer or
public officer,
(c) in aid of a peace officer
or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is
required or authorized to do and in using as much force as is
necessary for that purpose.
26. Every one who is authorized by law to
use force is criminally responsible for any excess thereof according
to the nature and quality of the act that constitutes the excess.
27. Every one is justified in using as much
force as is reasonably necessary
(a) to prevent the commission of an offence
(i) for which, if it were
committed, the person who committed it might be arrested without
warrant, and
(ii) that would be likely to
cause immediate and serious injury to the person or property of
anyone; or
(b) to prevent anything being done that, on
reasonable grounds, he believes would, if it were done, be an
offence mentioned in paragraph (a).
COMMISSIONER'S
DIRECTIVES
CD-571
- SEARCHES AND SEIZURE
4. Searches shall always be conducted with
due regard for privacy and for the dignity of the individual being
searched.
5. Where the presence of a witness is
required, the witness shall be a member of the Service or an
employee of an agency under contract with the Service. When
searching a staff member, the witness shall normally be a staff
member having a higher position than the staff member being
searched.
6. The following types of searches may be
performed:
c. A strip search is a visual
search of a completely unclothed person and requires the individual
to open the mouth, display the soles of the feet, present open hands
and arms, run his/her fingers through the hair and bend over to
allow a visual inspection of cavity areas. It shall be conducted in
a private area, out of sight of others, by a staff member of the
same sex and in the presence of a witness. This witness shall also
be of the same sex, unless it is an emergency strip search.
Furthermore, all clothing and possessions are to be searched.
ROUTINE STRIP SEARCHES
10. Routine strip searches may be conducted
on any inmate by a staff member of the same sex:
d. when the inmate is entering
or leaving a segregation area; or
NON ROUTINE STRIP SEARCHES
11. The institutional head may authorize a
strip search, of any inmate, by a staff member of the same sex,
where he or she is satisfied that:
a. there are reasonable grounds to believe
that an inmate is,
(1) carrying contraband; or
(2) carrying evidence relating
to a disciplinary or criminal offence; and
b. a strip search is necessary to find the
contraband or evidence.
EMERGENCY STRIP SEARCHES
13. A staff member of either sex may conduct
the strip search without authorization as cited in paragraphs 11 and
12 of this directive only in instances where:
a. a staff member believes on reasonable
grounds that an inmate:
(1) is carrying contraband, or
(2) is carrying evidence
relating to a disciplinary or criminal offence;
b. a strip search is necessary to find
the contraband or evidence; and
c. the delay in obtaining the authorization
would result in danger to human life or safety or in loss or
destruction of the contraband or evidence.
POST-SEARCH REPORTS
53. A post-search report shall be completed,
as soon as practicable, and submitted to the institutional head or
delegate after a search in which a member:
a. seizes anything in the
course of a search;
b. conducts a non routine strip
search of a person pursuant to section 49(3), 49(4), 60(2), 60(3) or
paragraph 64(1)(b) of the Act;
c. conducts a search pursuant
to section 51 or 52 of the Act;
d. conducts a routine strip
search in which force is used; or
e. conducts an emergency search
of an inmate, vehicle or cell.
55. Where the institutional head authorizes
an exceptional search of all inmates pursuant to section 53 of the
Act, he or she shall submit, as soon as possible, a report to the
head of the region containing the information required in paragraph
56 of this directive, as well as all relevant facts leading to his
or her belief that there existed a clear and substantial danger to
human life or safety, or the security of the institution, and
whether the danger has been averted.
56. A post-search report shall contain:
a. the date, time and place of
the search;
b. a description of anything
seized;
c. the name of the person
searched, the number of the offender's room or cell or licence
number of vehicle that was searched;
d. the name of the person or
persons conducting the search and the name of all witnesses, if any;
e. the reasons for the search;
and
f. the manner in which the
search was conducted.
CD605
- USE OF FORCE (1993-09-29)
2. Staff members who are peace officers have
authority to use force in accordance with sections 25 to 27, 34, 35,
37, 494 and 495 of the Criminal Code. However, a verbal warning or
command as a level of force option shall be used, if required and
time permits, before the use of a higher level of force.
3. The use of force consists of the
physical constraint of inmates by means of physical handling,
restraint equipment, chemical agents, authorized spray irritants,
batons, water hoses, patrol dogs and firearms.
4. In no circumstances shall a staff member
use or apply an instrument of restraint to an inmate as a means of
punishment.
5. No person shall ever consent to or take
part in any action that is cruel, inhumane or degrading treatment or
punishment of an inmate.
6. While staff members who possess the
authority to use force have a certain protection under the law, they
shall nevertheless be accountable for their actions. These members
shall use only as much force as is believed, in good faith and on
reasonable grounds, to be necessary to carry out their legal duties.
7. When time permits, institutional medical
authorities shall be consulted before gas is used, in regard to the
possible contra-indications which may impact on the decision to use
gas.
RESPONSIBILITIES AND LIABILITIES
8. Where lesser measures are ineffective,
force shall be used as necessary to prevent or suppress an offence
by an inmate.
ACTIONS TO BE TAKEN FOLLOWING THE USE OF
FORCE
29. Following incidents where force has been
used, or restraint equipment applied to control an unruly inmate,
all affected persons shall be examined as soon as possible by health
care personnel and provided with treatment as required. Any
follow-up medical attendance shall be provided as deemed appropriate
by health care staff. The results of the examination and any
follow-up shall be recorded and a report forwarded to the
institutional head.
30. For all situations involving the use of
force against an inmate, as defined in paragraph 3, a record shall
be kept which, at a minimum, will contain the times at which the use
of force began and when it ceased and the time(s) at which the
inmate was examined by health care personnel.
REPORTING
32. Every incident where force is used by a
Service member, including the discharge of a firearm for any reason
other than training, shall be reported to the institutional head.
33. The report to the institutional head
shall specify the type and degree of the force used and qualify the
force used such as the number of staff members involved in the
application of force, the weight of tear gas used, the caliber of
firearms used, and the number of shots fired in those instances
where firearms are utilized.
34. Following an incident where force has
been used, an investigation shall be ordered by the Institutional
Head or other designated authority.
PRISON FOR
WOMEN STANDING ORDERS
STANDING ORDER
571
9. An inmate will be asked to remove her
clothing to enable a visual search of her body; all clothing is
searched and returned to the inmate. Only female staff members may
search a female inmate in this manner.
STANDING ORDER
605
2. . . . In keeping with Commissioner's
Directives concerning Searching of Inmates, male officers will not
be used in situations where female offenders are unclothed or where
removal of clothing may become necessary.
2.4.2
What occurred
2.4.2.1 The
decision to call the IERT
Following the incident involving Officer
Ostrom in the afternoon of April 26th, Correctional Supervisor
Warnell prepared a memorandum recommending the calling of an IERT.
His recommendation read:
"Given the fragile psyche of
the Officers at the institution at this time, I strongly recommend
that an IERT cell extraction team be brought in and all inmates in
the dissociation side be taken from their cells, strip searched and
placed in stripped cells. I do not feel that our Officers should
have to continue to suffer this type of abuse when we have the means
to put a stop to it. Otherwise, I fear that we will have more staff
requesting stress leaves and a diminished credibility toward
management."
Upon her return to the institution, the
Warden discussed the situation with Mr. Warnell and decided to call
in the IERT. She testified that she decided to call in the team
because she believed the Segregation Unit had to be brought under
control and order restored and that this was the only safe way to do
it. It is apparent that the decision was taken quickly, and without
detailed consideration of alternatives.
The day before, the Warden had considered
and rejected a proposal by Correctional Supervisor Gillis that he
and other members of the prison staff extract the inmates from their
cells. The Warden concluded that this proposal was too risky, given
the staff's emotional reaction to the April 22nd incident, the lack
of adequate protective equipment, and concerns about a mass protest
involving self-injurious behaviour.
Ordinarily, an IERT team is not called in
until all negotiations and alternative means of dealing with inmates
on a safe basis have been exhausted. The IERT members who testified
said that they assumed, before embarking on their mission, that all
lesser measures had been exhausted.
In this case, the Warden did not consider
negotiating with inmates. The inmates were not told prior to the
IERT's actual intervention that the team would be put into action if
they did not cease and desist from their disruptive activities. The
Warden testified that she did not contemplate the possibility of
placing the IERT on standby and having her staff conduct the strip
search, as had been done on previous occasions. Nor was any
consideration given to attempting to obtain inmate cooperation in a
strip search (as was done when the inmates were transferred to the
Regional Treatment Centre).
There is no specific record of the decision
and of its reasons, other than one created at the Regional
Headquarters based on the Deputy Warden's report. That record reads:
Due to the poor mood of the
institution, which was set by the incidents of the weekend past, and
which was aggravated by the picket this afternoon, administration
decided to call in the Emergency Response - Cell
Extraction Team from KP to remove each inmate, strip her cell and
leave her with a security blanket for the night.
Although both the Warden and Deputy Warden
testified that they did not consider the picket relevant to the
decision to call in the IERT, it is clear from the Warden's
testimony that she did think that the emotional state of staff was
highly relevant to her decision. She did not consider that the staff
were safe to do patrols, or in an emotional state which would make
them the appropriate people to deal with the response to inmates.
2.4.2.2
Institutional Emergency Response Team
The Institutional Emergency Response Team is
made up of a group of volunteer Correctional Service staff members
who are specially trained to execute a set of well defined
techniques in the event of an emergency.
Members of an IERT have a standard and
invariable dress, and a standard set of weapons, all of which are
designed to protect the team members, ensure their anonymity, and
intimidate inmates. Intimidation is an important IERT technique,
used in the hope that it will be a factor in persuading an inmate to
surrender to the team's commands without the use of physical force.
Anonymity is considered important in the interests of protecting
Correctional Service staff from inmate reprisals as a result of IERT
activity. The dress and equipment of the IERT eminently meet the
objective of intimidating. The dress consists of a black combat suit
and associated protective gear - shin pads, safety
boots, slashproof vest, elbow pads, protective gloves, gas mask with
an eye shield, and a protective helmet. The weapons carried by IERT
members include batons, mace cans, and at least one plastic shield
per team.
One of the standard IERT techniques is a
cell extraction. The purpose of the cell extraction is to remove and
strip search an unwilling inmate, and then to place the inmate in
segregation if the inmate is in the prison's general population, or
to return him or her to a stripped cell if the inmate is already in
segregation.
A standard IERT cell extraction proceeds as
follows. A team (in this case eight men, plus one coordinator)
marches into the area in formation (as part of the intimidation
technique) and approaches the cell of the inmate who is to be
extracted. The plastic shield is banged against the cell, producing
a very loud and frightening noise. The inmate is told to lie face
down on the floor and warned that if the order is not obeyed, mace
will be used. If the inmate complies, the cell door is opened and
members of the team enter the cell and assume an "on guard" stance
with batons and mace around the inmate. Restraint equipment
- usually handcuffs and leg irons - is
applied to the inmate. The inmate's clothing is cut off, and the
inmate's body is visually inspected. In some cases, the strip search
occurs in the original cell; in some cases, in the new location to
which the inmate is being moved. If the cell is to be stripped, the
inmate is taken from the cell and made to walk backwards
- which is thought to be safer, both for the IERT and
the inmate. The cell is then stripped. The naked inmate is then
returned to the cell.
The only IERT member who speaks during this
procedure is the team leader, who issues any necessary instructions.
Other IERT team members do not speak, and do not answer questions
from inmates. If need be, they communicate with each other by hand
signals. This is considered effective, both in terms of reinforcing
intimidation, and in avoiding confusion or unnecessary distraction
that could result if team members spoke.
The IERT's activities are videotaped. The
primary purpose of the videotaping is to constitute a record from
which to respond to any allegations of impropriety by the IERT. It
is also used as a training tool.
The IERT is male. It is generally deployed
in male institutions. It came into existence in large measure in
response to incidents in male institutions. There is no variation in
the techniques that it uses when it is deployed, as it occasionally
has been, at the Prison for Women. Members of the team are
uncomfortable with being deployed in a female institution, but they
do respond when called. Their training dictates that there be no
variation from the standard techniques when the inmates against whom
those techniques are deployed are female.
Before they were summoned to the Prison for
Women in April of 1994, the IERT members had never been asked to
strip search a female.
2.4.2.3 The
mandate given to the IERT
Warden Cassidy was not familiar with the
details of the standard cell extraction procedure, but her
instructions to the IERT were to conduct a cell extraction. She
wanted the women restrained, stripped, gowned, the cells stripped
and the women returned to their cells. She did not, however, give
detailed thought as to how that would take place.
In addition to the IERT members, a number of
Prison for Women staff participated in different aspects of the
briefing of the IERT which preceded the strip searches. Among them
there were different recollections of what was discussed concerning
certain important aspects of the strip search -
including who would be present, who would conduct the strip search,
whether and what covering would be used for the women after they
were stripped, where the strip searches would take place, and what
restraint equipment would be used. There was a general understanding
that one or maybe two female correctional staff from the prison
would assist in the strip search, but there does not appear to have
been any clear understanding, especially in the Warden's mind, as to
what the role of these women would be. The recollection of the IERT
Coordinator was that the role of the female correctional officers
would be limited to assisting the men by stripping the women after
the team had subdued and restrained them. His understanding was that
the correctional staff were sufficiently distraught and at their
wits end that it would not be safe for them to come in contact with
inmates, as they might not remain calm. There was no other
discussion as to whether there was a way in which only female staff
could conduct and witness the strip search - for
example, by calling in female correctional staff from other
institutions. The standard practice would have been for the prison
to supply heavy cloth (non-flammable, non-rippable) security gowns
to cover the inmates after the strip search. It is unclear how and
when it became apparent that only small paper gowns were available.
It was clear to many of those who
participated in the discussions, and it would have to be clear to
anyone familiar with the standard IERT cell extraction, that in the
absence of specific directions to depart from that procedure:
- each woman would be stripped after having
been restrained by the IERT, in the presence of the team, which
would be in an armed stance surrounding the woman to compel her
compliance;
- the stripping would be done by cutting
off the clothes with a 911 cutting tool; this usually requires
assistance from someone in addition to the person using the tool,
because the clothes need to be stretched with two hands for the
911 tool to operate effectively. Therefore, even if a woman were
using the 911 tool, a member of the IERT might well be assisting
her; and
- in any event, the IERT would provide
whatever assistance in clothing removal or otherwise, that seemed
necessary at the time.
Among those who testified that they realized
that men would be present and if necessary, would assist while the
women were being stripped, were the Deputy Warden, the Institutional
Preventative Security Officer (IPSO), the IERT team leader, and the
female correctional officer who assisted in the stripping. Although
the Warden was not specific in her instructions or her understanding
as to the participation of the men, she testified that she
understood that if it became necessary, a male IERT member would
assist in the stripping and she was aware that maintenance men would
be in the segregation area during the procedure.
It is clear that there was no specific
discussion of whether the planned strip search was or was not in
compliance with the law. Nor was there any specific consideration of
the prison's Standing Order which flatly prohibits cross-gender
strip searching.
In their testimony before the Commission,
some of those involved in the strip searches adopted the view that a
cross-gender strip search is permitted in an emergency and that this
was an emergency; some expressed the view that if the clothes were
cut off by a woman, it was not a cross-gender strip search; others
adopted some combination of these positions.
To some extent, the assertion that the strip
search was legal is grounded in the view, expressed by a number of
Correctional Service representatives who testified, that in a
serious emergency those in charge may properly decide that the law
and the Commissioner's Directives need not be followed, even when
the law is directed specifically to emergency conditions.
Notwithstanding the significance of the
issue of the legality of these strip searches, by mid-December of
1995 when he testified, the Commissioner still had not determined
whether or not they were in compliance with the law.
2.4.2.4 The strip
searches
(a) Records of the
strip searches
The only useful institutional record of the
strip searches is the video taken by one of the IERT members. Though
it does not show all of the strip searches, it reveals much more
than any other record. Although required by the applicable law and
policy, neither a Use of Force Report nor a Search Report of the
events was prepared. Because it is the most accurate, and indeed the
most compelling record of what occurred, and because of the
importance that it played in the events which led to this inquiry,
the video is an appendix to the original copy of this report. The
video is the one shown at the public hearings of the Commission, on
which the faces of the inmates who so requested was blanked out,
thereby eliminating any privacy concerns.
The description of the strip search which
follows is taken largely from the video, to some extent supplemented
by the oral evidence before the Commission.
(b) The conduct of
the strip searches
The video commences when the IERT is already
in the cell of the first inmate subjected to a strip search, Joey
Twins. The video is on during the balance of Joey Twins' strip
search, and for most of the remaining searches. There is an
unexplained four minute gap in the middle of one of the searches. As
well, the tape is turned off at regular intervals, during which
time, the Commission was advised, the IERT took breaks from the
procedure. When the video is on, it is not always focused on the
strip search, and when it is, because of the lighting and the uneven
camera movement, it is not always possible to see what is happening.
Nonetheless, some very detailed and accurate observations about the
strip searches can be made.
Prior to the video being turned on, the IERT
marched into the Segregation Unit in standard formation, approached
Joey Twins' cell and banged on the bars of her cell with the shield.
She immediately did as she was ordered, and when the video begins
she is lying face down in her cell surrounded by IERT members who
are holding her down. An officer now identified as a female member
of the Prison for Women staff, cuts off Ms. Twins' clothing with the
911 tool, while IERT members hold her down. The extent to which they
are assisting the female officer in the actual cutting and removal
of the clothes is difficult to tell from the tape. Ms. Twins' hands
are cuffed behind her back and her legs shackled. She is marched
backwards out of her cell naked, and led to the corner of the range.
There she is held against the wall with the clear plastic shield,
with her back against the wall. Some IERT members stand around her
while the IPSO, Mr. Waller, and maintenance men from the prison
enter the Segregation Unit to begin stripping Ms. Twins' cell.
The corner where Ms. Twins is standing is visible to anyone in the
unit or standing in the doorway separating the dissociation side
from the protective custody side of the Segregation Unit. Those who
attended in those areas over the course of the evening included
members of the prison's correctional staff, the institutional
physician, Dr. Mary Pearson, the Case Management Coordinator,
Marjo Callaghan, who was keeping a chronological record of events,
Correctional Supervisor Warnell, as well as the IPSO and the
maintenance men to which reference has already been made. The Warden
and Deputy Warden were not in the dissociation side during the strip
searches.
While she is still being held in the corner,
a paper gown is brought to Ms. Twins and tied around her neck. The
effect is something like that of a bib. The paper gown neither
covers her, nor provides warmth.
Upon her return to the cell, an IERT member
begins the extremely lengthy process of attempting to apply a body
belt in substitution of her handcuffs, during which procedure her
gown comes off. A body belt is a form of restraint equipment which,
as its name implies, consists of a locked chain around the inmate's
waist to which are attached locked cuffs attaching the wrists to the
locked belt, more or less at the side of the body. The choice of
this restraint equipment was explained on the basis of the Warden's
instructions that the women would remain in restraint equipment
overnight, and the conclusion that this equipment, though somewhat
more cumbersome to apply, would be more comfortable. It was not put
on Ms. Twins initially because the body belts had not been
brought to the Segregation Unit before the procedure began. The man
assigned to apply the equipment in the case of Ms. Twins seemed
unfamiliar with the task, with the result that it took a very long
time to effect.
Finally, this lengthy procedure is completed
and she is left lying on the floor of her cell in restraints
- body belt and leg irons - and with a small
paper gown.
Throughout this procedure, she is evidently
distressed and frequently requests medication for her heart
condition. Dr. Pearson, who was present and monitoring her
behaviour, testified that she was not in need and would not have
been assisted by the kind of heart medication prescribed for her.
Dr. Pearson interpreted these requests as, in effect, a call for
help. It also evident, and was conceded by all witnesses, that
Ms. Twins did not at any stage resist the instructions she was
given. Rather, she was compliant, and indeed called out to the other
inmates to do as they were told to do.
The video and the evidence reveal that the
cell extraction and strip search of the remaining inmates was
substantially similar to those of Ms. Twins, with certain
exceptions.
1. Most of the remaining women were given
the option to take their own clothes off prior to the application of
the restraint equipment by the IERT. In some cases, inmates
undressed before the IERT arrived. In some cases, they undressed in
front of the IERT at their direction. In some cases they were given
gowns. In some cases they remained naked during the application of
the restraint equipment. Two women who were having their menstrual
periods were allowed to keep their underpants on and these were
inspected by a female correctional officer. The video shows the last
inmate who was strip searched, Brenda Morrison, with her clothes on
when the IERT enter the cell. In response to their order for her to
kneel and remove her clothing, she asks questions about what will
happen if she does not remove them. The questions are not answered.
Rather, restraint equipment is applied over her clothing, at which
point she offers to take her clothes off. They direct her to lie
face down. She does not immediately do so and they force her to the
ground. Three IERT members hold her down and rip and then cut her
shirt open at the back while the female correctional officer cuts
her pants off.
2. Although body belts are applied to the
remaining inmates, the task of applying the equipment was taken over
by someone more knowledgeable and does not take quite as long for
the remaining inmates as it did for Ms. Twins.
3. The remaining inmates are given paper
gowns just before or as they emerge from their cells. The gowns do
not cover the inmates entirely, but provide some covering of the
upper front portions of their bodies.
4. The inmates are then marched backwards to
the shower area at the end of each corridor of cells, made to stand
face first against the wall in that area while held by one IERT
member and guarded by one or more others.
5. The video shows the gown of one inmate,
Ellen Young, being lifted by the IERT member who is holding her
against the shower wall. Because of the anonymity of the members, no
one could identify which team member lifted the gown, and therefore
no specific explanation was provided, though the IERT members who
testified hypothesized that there might have been a need to check if
she had managed to free her small wrists from the cuffs.
6. In response to Ms. Young's question about
the camera which was videotaping the events, a male voice responds
to the effect that the videos were "sent home".
The graphic depiction of these events in the
video was supplemented by Ms. Morrison's testimony:
A: I was pacing back and forth in my cell,
and I was trying to decide if I should take my clothes off or just
leave them on. I came to the conclusion that I won't take my clothes
off for men because - I'm sorry I tried my best to B
Q: Take your time.
A: Because I know it is in any law that you
are not supposed to take your clothes off for any man if you don't
want to, especially when fought for. I really dislike the system
today. Its degrading to the institution to allow that to happen.
Q: How did you know that the members of the
Emergency Response Team were men if you couldn't see them?
A: By their voices.
Q: By their voices.
A: And because of how they are structured.
Q. so you told us that you had resolved not
to take your clothes off in front of men.
A: That is right.
Q: Can you tell us what happened?
A: The men ordered me in the middle of the
floor in my cell. I did. And I did offer to take my clothes off, but
I also asked them if there was any women or a woman present. So a
lot of things were racing through my mind, like, "What I am doing?
Should I take my clothes off?" or "This is not right".
It kind of happened fast. The men applied
the body belt and the handcuffs. That is when I offered to take my
shirt off, or something. But they kept putting the chains on. Then
they pushed me down on the cement and ripped my clothes off.
The men and I were still struggling because
I was resisting. They got my clothes off, so I was now naked. The
only clothes I had on were a pair of cuffs and shackles in front of
these men. They pulled me up. When I was on the ground, on the
cement, I did look on the side and I seen Rick Waller and two
construction workers standing in front. So the men that were in
there, and three outside, were watching me.
Q: Were what?
A: Were watching me get my clothes ripped
off.
She was given a paper gown that did not
cover her body and taken to the shower. Her testimony continued:
A: My head was forced towards the wall with
one of the men that had my head like that (indicating). One guy was
on the side with a stick, and if I made a little move, he
(indicating) would do that, for what reason, I don't know.
Q: So at some point -
A: Because I was naked.
Q: Sorry?
A: I was already naked.
Q: But I take it that at some point you were
moving your head and someone banged the wall with his baton?
A: That's right.
Q: How many times did that happen, Ms.
Morrison?
A: I recall that maybe he did only twice,
and they were saying: "Don't move", and I was angry. I felt very
degraded and pissed off. I don't know - I don't know how
anybody can do that to somebody and live with themselves. How they
can walk in there, rip my clothes and say "Its okay, I was doing my
job; it was professional". May be if the tables were turned they
wouldn't think so, but the tables aren't. I don't know how any man
can do that to any woman and say it was their job. As far as I know,
its a crime. A crime was committed there. And if something like that
happened down the street, that's a crime. If you go in an apartment
and rip girls' clothes off, that's a crime. That's sexual assault.
Q: Is that how you viewed it that night?
A: Yes. If somebody can stand here and tell
me, look me in the eyes and tell me that's right, I ask myself:
where is justice? What about justice inside the institution? Is
there any for us inside? We must not, because we are criminals.
Throughout the strip searches, there is a
fairly constant level of talking and calling in the Segregation
Unit. Inmates are heard to call out their requests that the windows
be closed. These had been opened prior to the IERT attendance to
clear out the remaining smoke from the earlier fires. Although the
smoke had already cleared when the operation began at 11:40 p.m.,
the windows were left open until after 2 in the morning,
notwithstanding the fact that the temperature was between 11 and
12 degrees. Other requests, for tampax, medication, eye
glasses, are called out, as are comments which were interpreted by
some who were present in the unit to be flirtatious, joking or
defiant in nature. Some called out that they were being raped. In
addition, questions about what was happening and about whether the
IERT were all male were directed to IERT members. Some expressed
their fear at the memory of previous sexual assaults. Consistent
with IERT training, questions and requests were not answered.
The institutional physician, Dr. Pearson,
was in attendance for the first portion of the IERT intervention in
case any medical concern arose. She testified that she was
devastated when she realized that the women were to be naked in
front of the men. She suggested that she take the clothes from the
women and provide them with a gown on a voluntary basis, and it
appears that that was the reason for the change in the strip
procedure noted above. Midway through her distribution of gowns to
inmates, she was directed to leave the Segregation Unit on the
Warden's order, triggered by concerns of the IERT Coordinator that
it would be better that she not interfere with team procedures. At
no time while she was present during the intervention did she have
the impression that any staff was at risk of physical injury. When
she was escorted from the unit, she went to the Warden's office and
described her concerns with respect to the humiliation to which the
inmates were being subjected. She repeated those concerns in a
letter to the Warden, and in comments to the Board of Investigation.
There was no security reason not to give the
women more appropriate gowns for covering themselves immediately
after the strip search. Nor was there a security or any other reason
offered for leaving the windows open for almost three hours after
the smoke in the unit had cleared.
At the end of the procedure, pursuant to the
Warden's instructions, the women were left on the cement floor of
their cells in body belts, leg irons, paper gowns, and with nothing
else. The bolted beds had been removed from the cells and there was
nothing left but a sink and a toilet. They remained in that
condition until the early afternoon of the following day when each
was given one security blanket. While there was some attempt to
suggest that this state of affairs was due to security concerns, no
plausible explanation was offered for keeping the women in leg irons
and depriving them of any means of keeping warm.
2.4.2.5 The
significance of the video and the conduct of the Correctional
Service with respect to it
The participation of the IERT in strip
searches of female inmates was an unprecedented event. I heard no
evidence from anyone that would suggest that it was viewed as other
than unprecedented.
The fact that the IERT attended at the
Prison for Women and participated in cell extractions (and thus by
implication, in strip searches), was reported to the Regional
Headquarters of the Correctional Service as it was occurring, and at
National Headquarters the following day.
Notwithstanding the evident significance of
this event and the questions which should have been raised about the
extent and propriety of male involvement in these events, neither
the Warden nor the Deputy Warden reviewed the video at any time
prior to this Commission's proceedings. Apart from the Board of
Investigation (dealt with below), no one from the Correctional
Service, except members of the IERT and their instructors, viewed
the video until late January, 1995, shortly before its release on
the Fifth Estate program.
In addition to the self-evident significance
of the events, there were a number of other indications to the
Correctional Service of the potential significance of the strip
searches.
There were numerous complaints by the
inmates, to the Board of Investigation, in grievances, and otherwise
- which are detailed below. Concerns about the procedure
were expressed by Dr. Pearson to the Warden and reiterated in a
letter to the Warden, and to the Board of Investigation. From May
17th onwards, CAEFS expressed to the Commissioner an ongoing desire
to view the video and an anxiety to determine whether the
Commissioner had seen it.
In May, two of the inmates launched habeas corpus applications against the
Correctional Service with respect to their transfer to the Regional
Treatment Centre. The material delivered to CSC in support of those
applications included affidavit material from someone who had viewed
the video, and who outlined concerns about the nakedness of the
women, the lack of privacy and the serious effect on the women. As
well, the video was considered to have sufficiently significant
contents that it was ultimately produced to the court for viewing.
Concerns were expressed directly to the
Commissioner in early June of 1994 from someone whom he knew to be
active in correctional issues, who had talked to the inmates and was
concerned about what she had been told had occurred. The
Commissioner referred her to the Warden, and did nothing further to
look into her concerns.
The Commissioner testified that from May
onwards, he thought that whatever had happened in the presence of
the IERT included things that would cause public concern and raise
serious privacy issues with respect to the inmates should the video
be released.
In June of 1994, the Correctional
Investigator requested a copy of the video. That request was
repeated frequently, orally and in writing, in the following months.
In November 15, 1994, a lawyer whom the
Correctional Service knew had seen the video, described on national
radio exactly what was on it.
The next day, a member of the Board of
Investigation, the only group within the Correctional Service
thought to have viewed the video other than for training purposes,
said on national radio that she had not seen the video.
In November of 1994, another lawyer whom the
Correctional Service knew had seen the video, delivered a statement
of claim in which he described exactly what was on the video.
Notwithstanding the obvious indications of
the significance of the video and the importance of a review of it,
the Correctional Service delivered its only copy of the video to the
court in June of 1994, in the course of resisting the habeas corpus application. While CSC, and
in particular the Commissioner, continued to make statements in the
summer of 1994 indicating that the release of the video to the
Correctional Investigator and CAEFS was being arranged to occur
imminently, the Correctional Service appealed the granting of the habeas corpus application in July of 1994.
The evident result was that in the absence of steps being taken by
the Service to obtain a copy of the video, the only copy would
remain in court for a matter, probably, of years. The Service took
no steps to obtain the video for copying or viewing until the middle
of December 1994.
Without having looked at the video, the
consistent response of senior representatives of the Correctional
Service, to the numerous questions raised about the involvement of
men in the strip searching of women on April 26th and 27th, was that
the men did not strip search the women.
Shortly after the Correctional Service
initiated steps to obtain a copy of the video from the Court of
Appeal, a copy was indeed obtained. The Commissioner and certain of
his colleagues viewed the video on January 26, 1995. His reaction
was described by his counsel as one of "detestation" of what he saw.
During the course of his evidence, the Commissioner made clear that
he thought what the video revealed was very wrong. He was of the
view that men should not be involved in the stripping of women, and
that it was important that never happen again. He did not then, and
has never subsequently, sought a determination of whether or not
what happened was in accordance with the law.
However, the focus of the Correctional
Service after the viewing of the video by senior officials,
including the Commissioner, can be ascertained from the briefing
which the Commissioner gave the Minister on February 13, 1995, the
Communication Plans which were developed, and the steps taken to
initiate court proceedings to preclude the release of the video.
That focus was to stop the video being released to the public.
When he briefed the Solicitor General, the
Commissioner assured him that the decision to use the IERT was
justifiable, the exercise was in accordance with CSC rules and
procedure, and the outcome was successful. He went on to discuss the
negative impression that would be created in the minds of the public
if the video were viewed out of context and described CSC's
intention to seek an injunction against the video being shown. The
minutes of the meeting do not record that the Commissioner said
anything about his view that what had happened on the video was very
wrong and that policies should immediately be changed -
which he later described in his testimony as his "first and
overwhelming concern". The Commissioner acknowledged that if he had
made these points, they would have been recorded in the minutes.
The Communications Plan dated February 14,
1995 notes that the purpose of the videotape is to safeguard against
the potential for any allegations of excessive force or
inappropriate treatment and that Ms. Twins' was seeking to have the
tapes made available to the public so they could assess for
themselves the validity of the complaints she made about her
treatment by the IERT, because her complaint to this effect had been
rejected by the CSC. Nonetheless, the plan goes on to note that the
Correctional Service has instructed counsel to seek ways and means
of prohibiting Ms. Twins' counsel from making the tape public. The
Commissioner agreed that he could not think of a good reason to
suggest that the Correctional Service would have a legitimate
interest in preventing Ms. Twins from releasing the portion of the
video which deals with her cell extraction, in order to substantiate
her allegations of excessive force or inappropriate treatment. He
acknowledged that he had simply never thought about the issue
before.
In other words, though at the very senior
levels the viewing of the video produced the conclusion that what
occurred was very wrong, the actions of the Correctional Service,
and in particular in briefing the Solicitor General and in
communicating with the public, the immediate focus was entirely on
preventing the showing of the video and damage control, and not at
all on the acknowledgement and correction of what was identified as
an egregious error.
2.4.2.6 Dr.
Bater's comments on the tape
The chairman of the Citizens' Advisory
Committee (CAC), Dr. Robert Bater, was shown the video by those
preparing the Fifth Estate program, and
his reactions were recorded. Dr. Bater testified that he hesitated
before agreeing to participate in the program. It is evident that to
be called upon publicly to comment and possibly criticize the
actions of the Correctional Service was an approach different from
the one he had adopted in his almost 12 years as a volunteer member
of the CAC. During that time, he had avoided any public criticism of
people within the Correctional Service, for whom he had a high
regard. However, he agreed to participate in the program because of
his frustration at what he described as the negative attitude of
staff at the Prison for Women concerning these events, their
unwillingness to enter into a serious discussion with the CAC about
the Committee's views, the keen disappointment felt by the CAC with
the Board of Investigation Report, and, finally, a growing sense
that he was being misled about the involvement of the male IERT in
the strip searching of women. Dr. Bater was appalled by what he saw
on the video. Included in the observations recorded by the Fifth Estate was his statement:
Heaven knows what kind of
sadistic satisfaction in taking a woman's clothes off, or forcing
her to take her own clothes off - its a little like
shoving a gun down the mouth of a woman - I mean its a
very phallic act.
These comments touched off a storm of
protest among members of IERT teams and members of the Union of
Solicitor General Employees. Dr. Bater subsequently provided a
statement of clarification, which was widely circulated among those
who objected to his comments, in which he explained the context of
his reaction, expressed regret about his choice of words, and his
apology that his statements had caused hurt and stress for the wives
and families of Correctional Service officers. However, the protest
did not abate. The Union declined to continue to attend consultation
meetings with management in the region for so long as Dr. Bater
continued as chair of the Citizens' Advisory Committee. Ultimately,
Dr. Bater was invited to a meeting organized by the Regional Deputy
Commissioner on June 2, 1995. The meeting was attended by a small
number of Citizens' Advisory Committee members, 22 IERT members, and
other representatives of the Correctional Service. By the end of the
meeting, Dr. Bater concluded that he had no realistic alternative
but to resign his position as chair of the Citizens' Advisory
Committee. He advised the meeting that he would resign effective in
the fall of 1995 and undertook not to visit the Prison for Women
during the balance of his term.
2.4.2.7 CSC
Acknowledgements
In its final submissions to the Commission,
the Correctional Service acknowledged that insufficient attention
was paid during the preliminary briefing of the IERT to matters
concerning the privacy of the inmates; that arrangements for removal
of inmates' clothing out of view of any males should have been made
but were not; and that arrangements to provide the inmates with more
effective covering should have been made but were not.
2.4.2.8
Findings
(a) The
law
In its written submissions, the Correctional
Service advances the proposition that the IERT did not proceed
contrary to the law. More specifically, the Service does acknowledge
that this is not a case where a strip search by a person of the
opposite sex would be permitted under s.49(4)(b) of the CCRA because a delay in obtaining the
assistance of a person of the same sex as the inmate would result in
danger to human life or safety, or loss or destruction of the
evidence. It is common ground that it is only in such circumstances
that a strip search by a person of the opposite sex is permissible
under the law, and the evidence does not suggest that the IERT
intervention could not have been delayed.
Rather, the Correctional Service takes the
position that since a strip search as defined in s.46 of the CCRA requires a "visual inspection of the
naked body", there was no strip search conducted by the male IERT
officers who did not conduct a "visual inspection" of the inmates,
and were merely present during the search for security reasons. CSC
concedes that the procedure followed by the IERT contravenes s.46 of
the Regulations which requires a strip search to be conducted in a
private area, out of sight of every other person except for one
staff member of the same sex as the person being searched. The
argument advanced is, therefore, that the male IERT members were at
most witnesses to the inspection, in contravention of the
Regulation, but not performing the strip search, which would put
them in contravention of the Act.
Whatever the proper legal characterization
of what took place, upon viewing the videotape which records these
events, no reasonable person could come to the conclusion that the
male IERT members were merely witnessing the visual inspection of
the naked inmates by a female staff member. Women were forced to
take their clothes off, at the command of men and in their presence.
They either took their clothes off themselves, had their clothes
removed by a female officer with the assistance of a male officer,
or, in one case, one inmate had her clothes cut and ripped off her
by a male officer. In all these circumstances, either a strip search
was conducted, and men participated in it, or, if what was done was
not "a strip search", then the men had no legal authority to compel
the removal of the women's clothes in their presence. The least
plausible option, in my opinion, is the suggestion that a strip
search was performed by female officers, and that it was merely
witnessed by men. Should this be the case, it would still be in
contravention of the Regulations, and of CSC policy, and wrong.
In any event, what is particularly
disturbing in watching the video is not only the men "witnessing"
the naked inmates, it is the combination of the inevitable brutality
of this type of intervention, combined with the necessary physical
handling of individual women by several male IERT members, while
each woman is completely naked for a period of time, and then very
improperly covered by a paper gown or bib. When properly understood
in its full context, these events raise a legal and moral question
much more basic than merely whether it technically constituted a
"strip search". It raises the question of whether the treatment of
the inmates was cruel, inhumane, and degrading. I think that it was.
This seems to be once again a case where the
law was not known by those who were asked to implement it. The
assumption was, again, that an emergency, which this was perceived
to be, overrides any other applicable legal requirement. Despite the
evidence of many witnesses that they never turned their minds to it,
it is clear to me that they knew, or should have known, that in all
the circumstances of which they were aware, the IERT intervention
would take place exactly as it did, and as it is depicted on the
video. As for the IERT members themselves, it is more plausible
that, since they had not been given instructions otherwise, they did
not actually question their entitlement to perform a cell extraction
at the Prison for Women in exactly the same manner as they perform
it at Kingston Penitentiary. However, considering the extreme force
that they are authorized and trained to apply, they should be
particularly sensitive to the limits of their legal authority, and
this should form part of their ongoing sophisticated training. I
understand that it is not expected that a male IERT team will ever
be required to intervene again in a prison for women. Any protocol
or memorandum of understanding with local police forces, the RCMP,
or any other security organization, should ensure that the persons
required to apply force to women, particularly to search their
person in any fashion, are apprised specifically of the limit of
their authority.
(b) The decision
to call in the IERT
The next issue to be addressed concerning
the events of April 26th and 27th is whether it was necessary or
appropriate to call in the IERT. If events had been differently
managed from the evening of April 22nd, it may very well not have
been necessary to have recourse to that procedure. Taking the
situation as it existed by Tuesday afternoon, the question becomes
whether at that stage, as the situation then existed, it was
necessary and appropriate to call in the IERT. Considering the
extent to which the situation had been left to deteriorate, it was
probably inevitable that a procedure of that nature had to be
resorted to. However, the record does not indicate that a great deal
of thought was applied to the existence of alternatives, or that the
senior management of the prison considered in any detail the mandate
that was to be given to the team.
(c) The mandate
given to the IERT and the procedures employed
In the end, the briefing between the Warden,
assisted by other prison personnel, and the IERT Coordinator and
Team Leader, was deficient in many important respects. The most
notorious one is the fact that in light of the clear legal
prohibition against males stripping females, there was no detailed,
adequate plan put in place, to ensure that the law was respected.
The involvement of one or more Prison for Women female correctional
officers to assist the team was ill-defined and proved totally
ineffectual in ensuring observance of the law.
Again, particularly in light of the
anticipated strip search, no care was taken by anyone to ensure that
the stripping would take place in an appropriately private area, and
that adequate covering, in the form of security gowns or otherwise,
was immediately available to the inmates.
The Warden ordered that body belts be used
instead of handcuffs to restrain the inmates, so that they could be
kept in restraint overnight inside their empty cell, at the
completion of the procedure. Although it is clear that body belts
are a preferable form of restraint if the equipment is to be left on
for an extended period of time, it is difficult to understand why
inmates had to be kept in leg irons and arm restraints in their
empty cells after the extraction.
After the first cell extraction was
performed, it was immediately apparent that no adequate provisions
had been made for privacy of inmates who ended up naked, or barely
covered for extended periods of time. A re-assessment of the method
of operation should have been undertaken at that point. Although the
evidence of the IERT Coordinator and of the Team Leader was that no
departure from the standard procedure is permitted once an operation
is put into action, it is also clear that the Warden had the
authority to call the operation to a stop and re-assess the
situation at all times. Except for the fact that the inmates were
fully cooperative, even though they were loud and verbally abusive,
this was hardly a model operation. Inevitably, the procedure took a
very long time. Necessary equipment (such as security gowns and
restraint equipment) was not in place. The shower area which was to
be used as a holding area was locked and remained inaccessible
through Joey Twins' lengthy strip search. Many people were present,
in addition to the IERT members, including maintenance staff and
several prison staff members who were gathered at the door of the
unit. It is abundantly clear that the procedure was allowed entirely
to override any concern for the privacy of the inmates involved, to
no apparent security advantage.
The IERT Coordinator testified that there
were several departures from standard IERT procedures, all of which,
in his opinion, had been dictated by the team members' reluctance to
apply to women the level of force that they were normally required
to apply to men, and which resulted in less force being used than
IERT procedure dictates. In his opinion, these departures, to
varying degrees of seriousness, were inappropriate in that they
risked endangering the team members or the inmates. This merely
confirms, in my view, the total inappropriateness of using the
extreme force and terror, which is standard male IERT procedure, to
interact with women.
Some departures from standard IERT
procedures are of a different nature, and more objectionable. Even
on the basis of the limited plan that had been agreed upon with the
Warden, it was entirely inappropriate for members of the IERT to
assist in ripping and cutting the clothing of Brenda Morrison. As
for the remark by a team member that they sent such videos home,
assuming that this was merely meant to be humorous, upon reviewing
the video, one is hard-pressed to find any basis for humour in the
circumstances. To the extent that it had an obvious sexual overtone,
the comment was particularly objectionable. It is also apparent from
the video that a team member lifted the gown of an inmate in the
shower area by using his baton. There is some evidence to suggest
that this might have been done for the purpose of checking whether
the restraints were still in place, since women had managed before
to free their hands from the cuffs. Even assuming that this was the
case, in the absence of any verbal explanation for the gesture at
the time, it would not have been perceived as such by the inmate,
and it therefore exacerbated her vulnerability.
I accept the evidence of Dr. Pearson
with respect to her attempts to assist the inmates in removing their
own clothing and covering themselves with paper gowns prior to the
team members entering their cells. Inmates were calling for her on
numerous occasions and, since there was no indication that her
intervention was disruptive or dangerous, she should have been
allowed to assist to a greater extent in a manner that she had
initiated.
(d) Impact on
inmates
It is very difficult to come to a full
appreciation of the nature and effect of the IERT intervention at
the Prison for Women on April 26, 1994. Upon viewing images taken
from that videotape, including some of the footage that has been
broadcast on national television, members of the public have
expressed reactions ranging from shock and disbelief, to horror and
sorrow. The images are indeed very powerful, and have sometimes
provoked spontaneous responses, such as that of Dr. Bater,
which were seen by others as equally shocking and objectionable.
For the purpose of this inquiry, we have
transcribed all audible portions of the tape and we have viewed it
in its entirety on several occasions. Some parts have been viewed
repeatedly in order to appreciate some particular incidents. A mere
review of the tape (even repeated reviews) leaves many questions
unanswered. The comments of the inmates during the several hours
that this operation lasted, their tone of voice, and the quality of
their laughter, often seemed at odds with the events that were
unfolding.
The IERT members who testified expressed the
opinion that the inmates were not intimidated by their intervention,
that they were joking and laughing and making rude comments, and, in
at least one instance, that one was openly flirting with them. In
contrast, the two inmates who testified expressed emotions that I
accept as very real and genuine when they spoke of their fear,
humiliation, and the painful reliving of earlier memories of abuse.
However, many of the statements made at the time, for example the
claim by some inmates that they were being raped, cannot be taken
literally.
It is the testimony of Dr. Pearson that
provided me with a coherent explanation for the surreal quality of
the videotape, and I accept her interpretation of the events that
are depicted on the video. In her opinion, the numerous requests
which were shouted by the inmates for medication or tampax, and
which seemed so inappropriate in the circumstances, were in fact
often a desperate cry for help and comfort. As for the incidents
that the team members perceived as an episode of flirting by one of
the inmates, Dr. Pearson, who has known this woman for some
time, testified that in her view, the inmate was in fact in a
dissociative state, speaking in a girlish voice, possibly reliving a
childhood episode of sexual abuse. Dr. Pearson said that this
very emotionally fragile inmate was exhibiting signs of having lost
contact with reality. This explanation is very plausible to me. The
bravado that the words display betrays the humiliation, defeat and
terror that these women were experiencing when confronted and
subjected to this unimaginable display of force, in the middle of
the night, behind prison walls. The many references to menstrual
periods, tampax and rape is consistent with the fact that they were
experiencing the events as having a significant sexual aspect.
Dr. Pearson was, in my opinion, a
credible and reliable witness. She knew well many of the persons
involved in all these incidents. Several of the inmates and the
correctional officers were in fact her patients. She gave a frank
opinion that she supported the decision to call in the IERT, and
still now believes that an intervention of that sort was necessary.
However, she objected both at the time, and immediately thereafter,
to the methods that were being used.
The Commissioner of Corrections has
testified that he himself was shocked when he first viewed that
video. He then said that the video was unfair in that it only
depicted these traumatizing events, and not the circumstances
immediately preceding it. I do not believe that there is any
suggestion in that comment that anything that the inmates had done
previously would justify them being treated in a degrading or
humiliating manner. Rather, I understand his comment to suggest that
the shock upon viewing this amount of brutality would be greatly
diminished if one were equally apprised of the ongoing level of
disruption, vulgarity and verbal violence which had taken place in
the larger timeframe preceding the IERT intervention. I disagree.
Although anyone would concede the dramatic effect of a video and
audio recording of events, through this inquiry's process we have
been apprised in minute detail of the circumstances preceding the
events recorded on video. I believe that even if all that had been
captured on film, it would not have detracted from the shocking
effect and the indignation generated by seeing men handling naked
women in that fashion.
I must add that I have also viewed
videotapes of cell extractions performed by the IERT in male
institutions. I concede that it is also distressing to see the
obvious humiliation suffered by a man having all his clothes
forcibly removed and being paraded naked and in chains in front of
other men. I believe that the degrading aspect of what took place in
this case is of a different nature and magnitude, and that is also
why it is prohibited by law.
In addition to the two inmates who
testified, others have provided the Commission with impact
statements asserting the trauma and humiliation that they
experienced as a result of that intervention. These statements are
consistent with the complaints and grievances that some of them
filed in the summer of 1994 with respect to these incidents. The
process was intended to terrorize, and therefore subdue. There is no
doubt that it had this intended effect in this case. It also,
unfortunately, had the effect of re-victimizing women who had had
traumatic experiences in their past at the hands of men. Although
this consequence was not intended, it should have been foreseen.
I find that the conditions in which the
inmates were left in their cell at the completion of the IERT
intervention were, frankly, appalling and I see nothing in the
evidence to indicate that these conditions were genuinely dictated
by a serious security concern. These women were left barely covered
by a paper gown, on a cement floor in an empty, small cell, with
absolutely nothing to sit or sleep on - not a mattress,
not a blanket or a towel, while the windows were left open for a
considerable period of time. They were left in body belts, shackles
and leg irons, and they were kept in that condition until
mid-afternoon on the 27th when they were each given a security
blanket.
(e) The
significance and history of the videotape
The videotape of the IERT cell extraction
procedure figured prominently throughout this inquiry. Considering
the role that the video taping of IERT interventions is supposed to
play in accurately attesting to the events, and in providing a basis
for training and critique, this videotape contains some serious
deficiencies. In addition to the periods of time where no recording
took place while the IERT members withdrew from the scene to rest,
and to breathe unassisted by their masks, there was an unexplained
gap in the video. There were also occasions when the camera was not
directed at the strip searches. There is no suggestion in the
evidence that anything sinister took place that was not recorded.
However, the time gaps seriously undermine the reliability of the
videotape as an historical record. The written records are very
inadequate considering the policy requirements with respect to
accounting for use of force. It may very well be that when
procedures are entirely recorded on videotape, that additional,
detailed written observation reports may be unnecessary. At the time
of these events, there was no such dispensation from the
requirements of reporting and writing. In the future, the necessity
for detailed written accounts may be reconsidered, at least in cases
where there is an immediate monitoring of the quality of the video
recording, and of its completeness. Otherwise, it would be
particularly important, in light of the seriousness of the events
that are recorded on video, that an adequate set of observation
reports and/or use of force reports also be prepared.
(f) The history of
the review and release of videotape
With the benefit of hindsight, it is
extremely difficult to understand why the Warden, the Deputy Warden,
and senior Correctional Service employees at the Regional and
National Headquarters showed so little interest in reviewing the
videotape of the IERT attendance until some nine months after the
events, and after controversy was being vented publicly about what
exactly took place. Even without the benefit of hindsight, in light
of the allegations that were made almost immediately concerning the
IERT members having participated in the strip search of the inmates,
and in light of the inherent plausibility of these allegations, it
is if not inconceivable, at least inexcusable for the Correctional
Service to have failed for so long to apprise itself and the public
of the true state of affairs.
Both at the prison, and at the Regional and
National levels, the Correctional Service took a position that was
inaccurate. It had many indications that this was so, and took none
of the easy steps that were available to it, and to no one else, to
ascertain the truth by obtaining a copy of the video after it had
been filed in court. The Correctional Service was particularly
delinquent in its obligation to provide the videotape to the
Correctional Investigator, who is entitled by law to have access to
it. I do not accept the contention that the videotape was not in
possession or under the control of the Correctional Service after
having been filed as a court exhibit. For one thing, it is apparent
that when CSC took the steps necessary to have a copy made, it did
so with no difficulty.
The allegations that were being made that
female prisoners had been strip searched by males were very serious
allegations. The failure of the Correctional Service to take steps
to verify these allegations by reviewing the videotape throughout
the many months over which these allegations were growing, amounts
to either a disregard of its motto of integrity and accountability,
or to a misguided wishful thinking that the issue would disappear
from further scrutiny. I believe that it was a combination of both.
The significance of the failure to release the video in a timely
fashion is exacerbated by the grossly inaccurate depiction of what
happened which emerged from the final draft of the Board of
Investigation Report.
2.5
The Body Cavity Search on April 27,
1994
2.5.1 The
Law
A body cavity
search may only occur where the Warden is satisfied there are
reasonable grounds to believe the inmate is carrying weapons, drugs,
or other illegal objects in a body cavity, where a medical
practitioner agrees to conduct the search, and then only if the
inmate consents.
This emerges from the provisions set out
below. The associated reporting obligations are set out above at
section 2.4.
CCRA:
STATUTE
46.In sections 47 to 67
"body cavity search" means the physical
probing of a body cavity, in the prescribed manner;
52. Where the institutional head is
satisfied that there are reasonable grounds to believe that an
inmate is carrying contraband in a body cavity and that a body
cavity search is necessary in order to find or seize the contraband,
the institutional head may authorize in writing a body cavity search
to be conducted by a qualified medical practitioner, if the inmate's
consent is obtained.
CCRA:
REGULATIONS
46. A strip search and a body cavity search
shall be carried out in a private area that is out of sight of every
other person except for one staff member of the same sex as the
person being searched, which staff member is required to be present
as a witness unless, in the case of a strip search, the search is an
emergency as described in subsection 49(4) of the Act.
COMMISSIONER'S
DIRECTIVES
CD-571
- SEARCHES AND SEIZURE
d.A body cavity search is a strip search
which includes a physical probing of the rectum or vagina. It shall
be conducted by a qualified physician in the presence of a witness
of the same sex as the individual being searched. These searches
require the written consent of the individual and the approval of
the institutional head in writing.
BODY CAVITY SEARCH
16. In instances where a staff member
believes on reasonable grounds that an inmate has ingested or is
carrying contraband in a body cavity, the institutional head shall
be notified immediately.
17. When the institutional head is satisfied
that there are reasonable grounds to believe an inmate has ingested
or is carrying contraband in a body cavity, he/she may authorize in
writing:
c.a body cavity search when it
is necessary to find the contraband within.
20. Body cavity searches shall only be
conducted by a qualified medical practitioner and with the written
consent of the inmate.
2.5.2 What
occurred
As pointed out earlier following the April
26/27 IERT intervention, all eight inmates searched were left in
their cells in body belts and leg irons. The following evening, a
review team headed by the Deputy Warden conducted a "case by case
review", to determine if the restraint equipment should be removed.
In every single case the recommendation to remove the restraint
equipment was subject to the pre-condition of a body cavity search.
That recommendation was approved by the Warden "subject to the
success of each one", which she testified meant so long as there
were no safety or security concerns such as threats to Dr. Pearson
or her staff. The basis of the recommendation for the body cavity
search was said to be a concern about weapons and drugs --although
only weapons are referred to in the written request submitted to
Dr. Pearson.
Dr. Pearson testified that she was prepared
to do the body cavity search because she was concerned that the
inmates would ingest drugs or have weapons that they could use
against themselves. She believes she documented those concerns,
although this cannot be found in the record.
According to the segregation log, those
inmates who consented to a body cavity search received showers, a
security gown, and had their restraints removed. The segregation log
does not record that Ms. Desjarlais, who did not consent, received a
shower or security gown, or had her restraints removed. In addition,
the evidence is that those inmates who did consent to the procedure
received cigarettes.
According to her handwritten note, the
interpretation of the Citizens' Advisory Committee member who
attended was that the women who signed the consent did so in
exchange for showers and that they were also given cigarettes. Ms.
Twins testified that the arrangement was that in return for a
search, the inmates would get a cigarette and shower. Ms. Morrison
testified that the arrangement was that if the inmates consented,
they would get a cigarette. Officer Bertrim testified that her
understanding was that the inmates would get cigarettes after the
searches and only if they behaved. Deputy Warden Morrin testified
that there was a discussion about the inmates receiving cigarettes
as an incentive to the entire procedure going well. Dr. Pearson
testified that she was advised of a schedule of events which
indicated the search would be followed by a cigarette and shower and
that the inmates confirmed this understanding, but she did not
understand this to be a barter arrangement.
When Dr. Pearson arrived, she was told by
the nurse that the inmates had indicated a willingness to undergo
the search, but she did not inquire about what the inmates had been
told or the basis of their willingness. Dr. Pearson described the
procedure to each inmate and then obtained the written consent of
each. Although Dr. Pearson testified that she believed the consent
was voluntary, she was sufficiently concerned about her safety to
insist that the restraints be kept on during the search, and to
request two female officers to stand by the cell door, in addition
to the two nurses assisting. She also noted that one inmate was in a
dissociative state at times on April 27th, though
Dr. Pearson believed that by the time of the internal
examination she was competent to give her consent.
Dr. Pearson performed each search in the
inmate's cell, in the presence of two nurses, while two, three or
according to some, more correctional officers were present in the
area, and, in at least one case, some might have been in the cell.
Some indicated the women lay on the bare floor, others, including
Dr. Pearson, testified that there was a blanket or security gown
under them. Dr. Pearson added that a nurse held up a sheet for
privacy.
Other people, including the Assistant
Warden, the IPSO, Correctional Supervisor Warnell, and the Unit
Manager were also present in the unit while the searches occurred,
though they were not in or beside the cells in which they took
place. The inmates were taken to the showers and afterwards,
returned naked (except for one inmate who was covered by a towel) to
their cells.
Nothing was found in the body cavity
searches.
No search report was prepared.
The following day, Ms. Desjarlais' restraint
equipment was removed without conducting a body cavity search.
2.5.3
Findings
The absence of a culture respectful of
individual rights is perhaps nowhere more disturbing than on this
issue. A body cavity search is the most intrusive form of searching
a person, short of surgical intervention. As a result, the law
requires that it be performed only pursuant to a request in writing
of the Warden, that it be performed by a qualified medical
practitioner, and the consent of the person subjected to the search
must be obtained. The concept of informed, free and voluntary
consent is well established in law, particularly in criminal law.
Threats or inducement held out by a person in authority would
clearly vitiate the voluntariness requirement that is implicit in
the notion of consent. Yet in this case, many CSC witnesses who
testified on this issue expressed the opinion that an offer of
cigarettes, shower, or the removal of restraints to follow the body
cavity search did not affect the validity of the consent that was
given. In some cases, it was felt that since the law provided the
Correctional Service with the option of placing the inmate in a "dry
cell", that is a cell without plumbing fixtures, in order to
retrieve contraband which may have been secreted in a body cavity,
and since the placement in a dry cell was not contingent on the
consent of the inmate, any inducement to the body cavity search was
acceptable as providing a better and quicker alternative.
This approach was further justified on the
basis that the law was written essentially for male prisoners. The
argument was that dry-celling is effective for men, but not for
women. The implication was that since the law does not provide for
an effective non-consensual method for the recovery of secreted
weapons or drugs from women, inducement of consent is morally
justified as a preferable alternative to lengthy dry-celling.
There can be and should be no ambiguity as
to what the legal requirements of a valid consent are. In light of
all the evidence presented in this case, I find it inconceivable
that such a profound deficiency in the understanding of Correctional
Service officials as to basic legal requirements could be remedied
simply by the issuance of a more detailed directive from the
Commissioner, even if coupled with some training session. It seems
to me that the imparting of the required legal culture can only come
from the devising of a series of sanctions that bring home to
officials the consequences of disregarding, even inadvertently, the
basic mandates of the law. I will return to this issue in Part II of
this report.
This is therefore a case where the legal
requirements were known, but very improperly understood and
appreciated. Once again, this is an instance where the law is viewed
as easily superseded by the "moral judgement" that an alternative is
preferable, particularly if this is seen to be consistent with
security concerns.
Had free and voluntary consents been given
to the body cavity searches, I would be less inclined to examine
whether the searches were actually necessary, although the Act requires both reasonable grounds and
consent. In all of the circumstances, it is not apparent to me that
the suspicion that drugs or weapons were hidden in body cavities,
was a real and substantial concern in the case of each individual
inmate.
Even accepting the evidence of
Dr. Pearson that the searches were actually performed on a
blanket and not on the bare floors of the cell, to an outside
observer, the circumstances under which these intrusive procedures
were performed are appalling. Having said that, nothing in the
record indicates to me that Dr. Pearson was acting in anything
but the good faith belief that the procedures were, in a medical
sense, in the best interests of her patients. I have considerable
difficulty with that conclusion. On her own evidence,
Dr. Pearson has never found any weapons or contraband as a
result of a consensual body cavity search. She testified that she
always gave inmates the opportunity to dispose of any contraband
that might have been secreted in a body cavity prior to performing
the search. In these circumstances, it is not clear to me that a
medical foundation for the intervention can be maintained.
Furthermore, even though the induced consents may in fact have been
genuine in this case, it is difficult to overcome the inherent
contradiction of insisting that a patient be in full restraints
prior to engaging in what one believes to be a consensual procedure.
This is an area where the law does operate
differently for men and women. Body cavity searches are virtually
never performed on men as, apparently, doctors usually refuse to
perform them. Dry celling is effective for men, and can be done
without their consent. The dry cell technique is said to be
ineffective and lengthy in the case of women. The taking of X-rays,
which can only be done by a qualified X-ray technician, and with the
consent of the inmate, carries, in Dr. Pearson's opinion, more risk
to the health of the women than a body cavity search.
Since the consent of the inmate is required
to a body cavity search, it follows that it cannot be performed on a
"emergency" basis. Therefore, there should be no objection to
providing the inmate with the right to seek legal advice prior to
consenting to the search, and to require that, since the search is
to be treated as a medical procedure, it be performed in suitable
non-emergency medical surroundings. I see no need to recommend that
it be performed in a hospital, however, it should be performed in an
environment in which a doctor would feel comfortable performing
consensual, non-emergency examination or intervention. A cement cell
floor would not qualify.
2.6 Transfers
to the Regional Treatment Centre
2.6.1 The
law
The
Correctional Service may transfer an inmate from one institution to
another. When it does so, it must comply with detailed notification
procedures unless the security of the institution or the safety of
people necessitates an immediate transfer. Any transfer must comply
with the statutory obligation to put an inmate in the least
restrictive environment, having regard to safety and security and
the availability of programs and services for the inmate.
This emerges from the provisions set out
below.
CCRA:
STATUTE
28.Where a person is, or is to be, confined
in a penitentiary, the Service shall take all reasonable steps to
ensure that the penitentiary in which the person is confined is one
that provides the least restrictive environment for that person,
taking into account
(a)the degree and kind of custody and
control necessary for
(i)the safety of the public,
(ii)the safety of that person
and other persons in the penitentiary, and
(iii)the security of the
penitentiary;
(b)accessibility to
(i)the person's home community
and family,
(ii)a compatible cultural
environment, and
(iii)a compatible linguistic
environment; and
(c)the availability of appropriate programs
and services and the person's willingness to participate in those
programs.
29.The Commissioner may transfer an inmate
(a)from one penitentiary to
another penitentiary in accordance with the regulations made under
paragraph 96(d), subject to section 28; or
(b)from a penitentiary to a
provincial correctional facility or hospital in accordance with an
agreement made under paragraph 16(1)(a) and any applicable
regulations.
87.The Service shall take into consideration
an offender's state of health and health care needs
(a)in all decisions affecting
the offender, including decisions relating to placement, transfer,
administrative segregation and disciplinary matters; and
(b)in the preparation of the
offender for release and the supervision of the offender.
CCRA:
REGULATIONS
11.An institutional head shall ensure that
an inmate is informed in writing of the reasons for the placement of
the inmate in a particular penitentiary and that the inmate is given
an opportunity to make representations with respect thereto,
(a)where the penitentiary
placement process takes place in a provincial correctional facility,
within two weeks after the initial placement of the inmate in a
penitentiary; or
(b)where the penitentiary
placement process takes place in a penitentiary, before the transfer
of the inmate to the assigned penitentiary but after the initial
reception process.
12. Before the transfer of an inmate
pursuant to section 29 of the Act, other than a transfer at the
request of the inmate, an institutional head or a staff member
designated by the institutional head shall
(a)give the inmate written notice of the
proposed transfer, including the reasons for the proposed transfer
and the proposed destination;
(b)after giving the inmate a reasonable
opportunity to prepare representations with respect to the proposed
transfer, meet with the inmate to explain the reasons for the
proposed transfer and give the inmate an opportunity to make
representations with respect to the proposed transfer in person or,
if the inmate prefers, in writing;
(c)forward the inmate's representations to
the Commissioner or to a staff member designated in accordance with
paragraph 5(1)(b); and
(d)give the inmate written notice of the
final decision respecting the transfer, and the reasons for the
decision,
(i)at least two days before the
transfer if the final decision is to transfer the inmate, unless the
inmate consents to a shorter period; and
(ii)within five working days
after the decision if the final decision is not to transfer the
inmate.
13(1)Section 12 does not apply where the
Commissioner or a staff member designated in accordance with
paragraph 5(1)(b) determines that it is necessary to immediately
transfer an inmate for the security of the penitentiary or the
safety of the inmate or any other person.
(2)Where the Commissioner or a staff member
designated in accordance with paragraph 5(1)(b) determines that it
is necessary to immediately transfer an inmate for the reasons set
out in subsection (1), the institutional head of the penitentiary to
which the inmate is transferred or a staff member designated by that
institutional head shall
(a)meet with the inmate not
more than two working days after the transfer to explain the reasons
for the transfer and give the inmate an opportunity to make
representations with respect to the transfer in person or, if the
inmate prefers, in writing;
(b)forward the inmate's
representations to the Commissioner or to a staff member designated
in accordance with paragraph 5(1)(b); and
(c)give the inmate, within five
working days after the final decision, written notice of the final
decision respecting the transfer and the reasons for the decision.
97(2)The Service shall ensure that every
inmate is given a reasonable opportunity to retain and instruct
legal counsel without delay and that every inmate is informed of the
inmate's right to legal counsel where the inmate
(b)is the subject of a proposed
involuntary transfer pursuant to section 12 or has been the subject
of an emergency transfer pursuant to section 13.
COMMISSIONER'S
DIRECTIVE
CD084
- INMATES' ACCESS TO LEGAL ASSISTANCE
4.In accordance with subsection 97 (2) of
the Regulations, an inmate shall be permitted to communicate with
legal counsel by telephone as soon as practicable, and in any case
within not more than 24 hours:
a.following placement in
administrative segregation
b.following notification of a
proposed involuntary transfer;
c.following completion of an
emergency transfer.
CD540
- TRANSFER OF INMATES
AUTHORIZATION
3.The Regional Deputy Commissioner, the
Assistant Deputy Commissioner or the Regional Administrator
Community and Institutional Operations is authorized to approve the
following types of transfer:
b.involuntary intra-regional
transfers;
c.inter-regional transfers,
upon consent of the receiving region;
8.In emergency situations, the institutional
head may effect a transfer to another institution in the region, by
issuing a warrant under his or her signature, following consultation
with the Regional Deputy Commissioner, the Assistant Deputy
Commissioner or the Regional Administrator Community and
Institutional Operations, or the institutional head of the Regional
Reception Centre (Quebec). In those cases where it is not possible
to reach the regional authorities for consultation, the
institutional head may issue the warrant under his or her own
authority and shall refer the case to Regional Headquarters for
review at the first opportunity.
REASONS FOR TRANSFER
11. In conjunction with the behavioural
norms and security requirements outlined in Commissioner's
Directive 006, "Classification of Institutions", and the
requirements for the security classification of inmates in
Commissioner's Directive 505, "Security Classification of
Inmates", the transfer of an inmate will take place for one or more
of the following reasons:
a.to respond to reassessed
security requirements;
d.to provide a safe
environment;
ACCESS TO LEGAL COUNSEL
13. When an involuntary transfer is
proposed, or once an emergency transfer takes place, an inmate shall
be advised of his or her right to retain and instruct counsel
without delay, and afforded a reasonable opportunity to do so.
INVOLUNTARY TRANSFERS
14.Before involuntary transfers can be
effected, the procedures outlined below shall be carried out.
NON-EMERGENCY INVOLUNTARY TRANSFERS
15. The institutional head or a staff member
designated by the institutional head shall:
a.advise the inmate, in writing, of the
reasons and destination of the proposed transfer;
b.give the inmate 48 hours to prepare a
response to the proposed transfer;
c.meet with the inmate to explain the
reasons for and give him or her an opportunity to respond to the
proposed transfer, in person or, if the inmate prefers, in writing;
d.forward the inmate's response to the
regional transfer authority as specified in paragraph 3 for
decision;
e.give the inmate written notice of the
final decision and the reasons therefor upon receipt, and
1)at least two (2) days before
effecting the transfer, unless the inmate consents to a shorter
period; and
2)within five (5) working days
of the decision being made, where the decision is not to transfer.
EMERGENCY INVOLUNTARY TRANSFERS
16. Where, in an emergency situation, an
involuntary transfer takes place without prior notification to the
inmate, the institutional head of the receiving institution or a
staff member designated by the institutional head shall:
a.meet with the inmate within
two (2) working days of his or her placement in the receiving
institution to explain the reasons for the transfer;
b.give the inmate 48 hours
to respond to the transfer, in person or, if the inmate prefers, in
writing;
c.forward the inmate's response
to the institutional head of the sending institution;
d.give the inmate written
notice of the final decision and the reasons therefore upon receipt
and within five (5) working days of the decision being made.
REDRESS
19. Inmates have the right to seek redress
regarding transfer decisions using the inmate grievance procedure.
Inmates grieving inter-regional transfer decisions shall have their
grievances referred directly to the National Headquarters level,
except in those cases where the institutional head has denied a
request for a voluntary transfer. In these cases, the grievance
shall be forwarded to the Regional Headquarters level. Inmates
grieving intra-regional transfer decisions shall have their
grievances referred directly to the Regional Headquarters level
except in those cases where the original decision was made by the
Regional Deputy Commissioner. In such instances, the grievances
shall be referred directly to the National Headquarters level.
Inmates shall be advised of the applicable grievance procedure
available, in writing, in the case of an unfavourable transfer
decision, along with the reasons for the decision as described in
paragraph 18.
2.6.2 What
occurred
2.6.2.1 The need
to transfer
It is common practice after a major incident
in a prison to move the instigators of the incident to a new
institution. The removal of those seen to be instigators from those
who see themselves as victims of the incident enables an early
diffusion of the trauma associated with that incident. While the
practice is common in male institutions, it is virtually unheard of
at the Prison for Women because of the lack of female institutions
to which such transfers may occur.
In this case, however, on the morning of
April 25th, the Warden and Regional Deputy Commissioner discussed
the Warden's desire that the six inmates directly involved in the
April 22nd incident be transferred from the prison. Shortly
thereafter, the Regional Deputy Commissioner took up the issue with
the Commissioner. Very quickly a decision was taken that there would
be a transfer; and the only real issue was where. Initially, there
was not much focus on the question of whether the transfers would
proceed on an emergency, or a non-emergency basis.
2.6.2.2 Where to
transfer
Although there was some initial discussion
about transferring the inmates to facilities in the Prairies or in
British Columbia, the need to return the inmates for regular court
attendances in Kingston quickly eliminated those alternatives. The
Service examined transferring the inmates to Millhaven or to the
Regional Treatment Centre of Kingston Penitentiary. Regional
Headquarters analyzed the advantages and disadvantages of both
options and concluded that the preferable alternative was Millhaven
- for reasons which included the benefits associated
with its immediate availability, and the opportunity to avoid
injunctive process. As well, it was seen as avoiding the dislocation
of 17 male offenders who would have to be dislodged if the women
were transferred to the Regional Treatment Centre. There were also
concerns that the transfer to the Regional Treatment Centre would be
seen as a reward because of its previous popular use for therapeutic
programming. However, the Commissioner was of the view that the
women ought not to be transferred to Millhaven, largely because of
the public perception of that institution as a maximum security male
environment. As a result, it was decided to send the inmates to the
Regional Treatment Centre.
2.6.2.3
Notification to the inmates
The inmates were provided with documentation
indicating an intention to transfer them to Millhaven on May 2nd. On
the May 4th, they were advised that the destination had been changed
to the Regional Treatment Centre. Late in the afternoon of May 6th,
after a lengthy meeting at the Regional Headquarters to work out the
logistics of the transfer, the formal transfer proposal
documentation, including the lengthy objections from the inmates'
counsel, was provided to the Regional Administrator of Community and
Institutional Operations, the decision-making authority. Not
surprisingly in light of all that had gone before, he decided that
all of the inmates should be transferred to the Regional Treatment
Centre.
2.6.2.4 Emergency
versus non-emergency transfer
The inmates were then advised of the
decision to transfer them to the Regional Treatment Centre, and the
transfer occurred without delay the same evening. Since the inmates
were not given two days notice of the decision to transfer them,
this procedure would only be legally authorized if the circumstances
warranted an emergency transfer.
Although the issue of transfer had been
under consideration since April 25th, the decision to effect
the transfer on an immediate basis on May 6th, which was a Friday,
was effectively made by the Regional Deputy Commissioner. He
received advice from the President of the USGE that if the women
were not transferred before the weekend, "the place might blow" and
that the prison was extremely volatile. He spoke with someone at the
Prison for Women (he cannot recall whom) who essentially confirmed
that assessment. He concluded that it was a legitimate basis upon
which to effect an emergency transfer because the spirit of
notification contained in the legislation had been followed.
2.6.2.5 The
transfer
The transfer took place on Friday evening,
May 6th. The IERT was on site, on standby throughout. Its active
involvement was limited to serving as an escort. The procedure was
videotaped. In contrast to the strip search procedures employed on
April 26/27, the women removed their security gowns in their cells
and were visually inspected by female prison staff. Plastic
handcuffs were applied through the food slot before Correctional
Officers entered their cells to apply the leg irons.
2.6.2.6 Conditions
of the Regional Treatment Centre
Those inmates who were transferred to the
Regional Treatment Centre remained there until they were returned to
the Prison for Women pursuant to a court order in the middle of
July. In a number of respects, they were provided with more rights
and amenities than the inmates who remained at the Prison for Women.
Some witnesses expressed the view that it was easier to approach the
treatment of the inmates at the Regional Treatment Centre on a basis
that was, depending on the perspective, either less punitive, or
less security conscious than at the Prison for Women. This was said
to be because of the freedom from the constraints imposed at the
Prison for Women as a result of having to deal with staff and
inmates who were still experiencing the effects of the April 22nd
incident.
2.6.2.7 Habeas Corpus applications
On May 11, 1994, counsel for Ms. Twins and
Ms. Young served notice of applications for habeas corpus requiring their return to the
Prison for Women on the basis that their detention at the Regional
Treatment Centre was illegal. As has already been noted, those
applications raised issues not only associated with the transfer per se, but also with the treatment of
the women during their period of segregation and on the occasion of
the April 26/27th strip searches. The applications were the
subject of ongoing reports within the Correctional Service,
particularly to National Headquarters.
On the morning of July 12, 1994, the court
issued reasons dated July 11, 1994. The court found that the
original transfer, on a temporary basis, did not contravene the
applicants' rights, but that continued incarceration against their
will in a male penitentiary was not justified. The court held that
to allow the situation to continue would result in the adoption in
Canada of co-corrections, which should only be implemented by
legislation. The court further held that to continue to incarcerate
the women in facilities where there was no clear legislative method
of dealing with release from segregation was unlawful. The court's
orders granted the applications and directed the release of the
applicants from Kingston Penitentiary and their return to the Prison
for Women.
In response to these determinations, the
Correctional Service returned Ms. Twins to the Prison for Women
on July 14th, Ms. Young on July 15th, and the remaining inmates over
the period ending July 18th. The reasons for the delay in returning
the women to the prison included decisions that they should not all
be moved as a group, and that physical alterations should be made to
the Segregation Unit (the installation of treadplate to the open bar
cells and two cameras inside each cell) to house them on their
return (although the related construction was not completed until
after the women were returned to the Prison for Women). Although the
Service apparently sought legal advice, it did not seek any
provisions in the court's order authorizing a delayed implementation
of the terms of the order, nor otherwise seek the court's guidance
on the issue of compliance.
The Service appealed the result of the habeas corpus applications, but abandoned
the appeal after the appointment of this Commission.
2.6.2.8
Preparation of advice to the Minister
In late May of 1994, the Women's Legal
Education and Action Fund sent a letter to the Solicitor General
expressing concerns about the inmates' transfer. A draft response
was prepared for the Solicitor General, as was an accompanying
synopsis of events intended to explain and justify the transfer
decision. The synopsis contains the clearly erroneous and misleading
statement:
In the two weeks following the
initial incident an almost continuous assault on staff occurred in
the segregation area.
Notwithstanding corrections to more minor
details in the synopsis, that statement was not corrected, although
is not clear whether or not the synopsis was in fact forwarded to
the Minister's attention.
2.6.3 Findings
The early initiatives taken to transfer the
inmates involved in the April 22nd incidents are perfectly
understandable and if these events had occurred in a men's
penitentiary, the transfer of some or all of the inmates involved
would have been an appropriate option. Once again, the lack of
corresponding options in the women's system is readily apparent, and
a serious impediment to the speedy resolution of a crisis. The
placement of women in male institutions, as was done in this case,
is fraught with difficulties. For one thing, there is, if nothing
more, an appearance of oppression in confining women in an
institution which will inevitably contain a large number of sexual
offenders. This was particularly true of the Regional Treatment
Centre. More troublesome, in my opinion, is the fact that the
placement of a small group of women in a male prison effectively
precludes their interaction with the general population of that
institution. If transfer inevitably means segregation, the decision
to transfer should take into account the limitations on the
permissible use of administrative segregation.
There is some irony in the fact that the
conditions of confinement at the Regional Treatment Centre were
considerably better than the conditions afforded to the women kept
segregated at the Prison for Women. However, the transferred inmates
still insisted on being returned to the Prison for Women.
As for the procedural deficiencies in the
transfer procedures in relation to other departures from the law, I
see these as relatively minor. However, the argument that there was
no procedural irregularity because this was an emergency transfer,
after 12 days of deliberation and in the absence of any action by
inmates requiring immediate response, is an untenable argument.
The facts surrounding transfer also raise
questions about the commitment of CSC to the principles of
"openness", "integrity" and "accountability" expressed in its
Mission Statement. The briefing note prepared for the Minister was
not accurate and would have led him to fail to appreciate the true
state of affairs at the prison.
The habeas
corpus order was not complied with immediately, and, in my
opinion, direction should have been sought by the court if
compliance was not to be immediate. Moreover, in its response to the
habeas corpus application, the
Correctional Service allowed to be placed before the court sworn
evidence that was inaccurate and misleading. In these interactions
with the courts, the Correctional Service fell short of the standard
that is expected of every litigant, let alone of a branch of the
administration of criminal justice, which is charged with individual
liberty.
The issues raised with respect to the
Service's interaction with the courts is not only a question of
accountability or openness. It reveals the same kind of absence of
rigour in fulfilling its legal obligations that was disclosed
throughout this inquiry.
2.7 Board of
Investigation
2.7.1 Law and
policy
CCRA:
STATUTE
20.The Commissioner may appoint a person or
persons to investigate and report on any matter relating to the
operations of the Service.
21.Sections 7 to 13 of the Inquiries Act
apply in respect of investigations carried on under section 20
(a)as if the references to
"commissioners" in those sections were references to the person or
persons appointed under section 20; and
(b)with such other
modifications as the circumstances require.
PUBLIC
INQUIRIES ACT, R.S.C. 1985 c.I-11
7.For the purposes of an investigation under
section 6, the commissioners
(a)may enter into and remain
within any public office or institution, and shall have access to
every part thereof;
(b)may examine all papers,
documents, vouchers, records and books of every kind belonging to
the public office or institution;
(c)may summon before them any
person and require the person to give evidence, orally or in
writing, and on oath or, if the person is entitled to affirm in
civil matters on solemn affirmation; and
(d)may administer the oath or
affirmation under paragraph (c).
8(1)The commissioners may, under their
hands, issue a subpoena or other request or summons, requiring and
commanding any person therein named
(a)to appear at the time and
place mentioned therein;
(b)to testify to all matters
within his knowledge relative to the subject-matter of an
investigation; and
(c)to bring and produce any
document, book or paper that the person has in his possession or
under his control relative to the subject-matter of the
investigation.
10(1)Every person who
(a)being required to attend in
the manner provided in this Part, fails, without valid excuse, to
attend accordingly,
(b)being commanded to produce
any document, book or paper, in his possession or under his control,
fails to produce the same,
(c)refuses to be sworn or to
affirm, or
(d)refuses to answer any proper
question put to him by a commissioner, or other officer or person
referred to in section 9,
is liable, on summary conviction before any
police or stipendiary magistrate, or judge of a superior or county
court, having jurisdiction in the county or district in which that
person resides, or in which the place is situated at which the
person was required to attend, to a fine not exceeding four hundred
dollars.
12.The commissioners may allow any person
whose conduct is being investigated under this Act, and shall allow
any person against whom any charge is made in the course of an
investigation, to be represented by counsel.
13.No report shall be made against any
person until reasonable notice has been given to the person of the
charge of misconduct alleged against him and the person has been
allowed full opportunity to be heard in person or by counsel.
CD041
- INVESTIGATIONS
1.To ensure that investigations into any
aspect of CSC operations are carried out with integrity in a timely,
fair and equitable way and that they are independent, credible and
reliable.
SCOPE OF INVESTIGATIONS
2.The primary function of investigations
shall be to establish the facts with respect to cause, events
and outcome related to an incident through the in-depth
examination of the relevant circumstances surrounding the incident
and to provide appropriate recommendations.
3.The examination by police of matters of a
criminal nature will not exempt CSC from the need to conduct its own
investigation.
4.Investigators shall adopt such procedures
and methods as are necessary and appropriate to facilitate the
accomplishment of the investigation.
5.The investigators shall have complete
access to all pertinent documentation and personnel under the employ
of, or under contract with CSC, within the jurisdiction of
the convening authority.
6.The investigators shall inquire into the
complete circumstances surrounding an incident, normally including
the adequacy and effectiveness of the existing Service policies and
procedures as they relate to the circumstances under investigation
and the CSC Mission Document.
CONVENING AUTHORITY
8.The authority for the Commissioner to
convene investigations is provided under sections 19 to 21 of the
Corrections and Conditional Release Act. Any person appointed to an
investigation by the Commissioner under section 20 has all the
powers of a Commissioner under Part II of the Inquiries Act, as
indicated in Annex "A", including the power to issue summonses and
interrogate witnesses under oath.
9.Regional Deputy Commissioners and
operational unit heads can convene investigations under the general
powers of management. The investigators appointed by the latter
cannot be provided with the powers conferred under Part II of the
Inquiries Act.
10.The convening order and terms of
reference shall include the legal authority for the investigation,
be it the Inquiries Act or the general powers of management to
investigate, its purpose and scope, the name of the chairperson
and other members conducting the investigation, as well as the name
and title of the convening authority.
11.In all specific incidents appearing only
under the Commissioner's authority, as indicated in Annex "B", the
Commissioner shall convene an investigation.
13.Acquisition of new information can
result in a change in convening authority, following appropriate
consultation among the original convening authority, the
Commissioner and the Assistant Commissioner, Audit and
Investigations.
USE OF PERSONNEL FROM OUTSIDE THE CSC
14.The convening authority has the
discretion to appoint a person or persons from outside the CSC to
any investigation. He/she shall consult with the Assistant
Commissioner, Audit and Investigations, before selecting such a
board member. The Assistant Commissioner, Audit and Investigations,
shall, therefore, maintain a list of persons considered suitable to
serve on investigation boards. The unions representing CSC employees
shall be consulted in respect of any list of persons from outside
CSC who may be appointed to serve.
17.Employees shall supply a written or
verbal statement of their version of an incident, if requested to do
so by a board of investigation.
18.Any incriminating statement given by an
employee during an investigation shall not be used as a basis for
disciplinary measures against that employee. However, the
investigation report, including the findings and the
recommendations, may be used to initiate a separate disciplinary
process into possible misconduct.
19.Employees shall be permitted a
representative of their choice during investigations that could
reasonably be expected to be followed by criminal or civil
proceedings. In such cases, the chairperson of the investigation
board shall consult CSC Legal Services.
RESPONSIBILITIES
20.The Assistant Commissioner, Audit and
Investigations, in consultation with the appropriate Sector Heads,
shall report to the Commissioner on the impact of findings and
recommendations contained in each of the investigation reports
convened by the Commissioner. He or she will be responsible for
reviewing and monitoring the follow-up of these investigation
reports.
21.The Assistant Commissioner, Correctional
Programs and Operations, shall monitor the investigation reports
convened by the Regional Deputy Commissioners and the Operational
Unit Heads as well as the Security Intelligence Reports (SIRs),
inform the Commissioner on impacts when relevant, and circulate the
findings when these are considered to have a Service-wide interest.
22.The Assistant Commissioner, Audit and
Investigations, shall monitor the follow-up on implementation of
recommendations of importance from investigation reports convened by
the Regional Deputy Commissioners.
23.Each regional or local investigation
report, as well as all Security Intelligence Reports (SIRs), will be
sent to the Regional Deputy Commissioner immediately upon completion
for review purposes. A copy of these reports including regional
comments will be sent to the Director General, Institutional
Operations, at National Headquarters.
CD041- 1
- GUIDELINES FOR INVESTIGATIONS
3.The convening order will provide the
investigators with specific direction and terms of reference, focus
on the conduct of the investigation and direct them to examine all
pertinent aspects of the incident.
4.The terms of reference will include the
time, date and locale of the incident. The investigators will be
asked to factually report on, but will not be limited to:
a.the manner in which the
incident occurred and how it transpired;
b.deficiencies regarding
procedures, staff actions and (or) facilities and equipment that
might have contributed to the incident;
c.whether all procedural
requirements demanded of a particular course of action were
implemented and, if not, the reasons for not doing so; and
d.ways which could contribute
to the effective resolution and (or) prevention of possible similar
situations or occurrences.
2.7.2 The appointment of the Board of
Investigation
In the week following the April 22nd
incident, the Regional Deputy Commissioner, Mr. Graham, appointed a
three member Board of Investigation to examine the events and
circumstances surrounding the April 22nd incident and "other related
incidents".
On May 3, 1994, the Commissioner convened a
national Board of Investigation consisting of the same three members
and a fourth member, the then Warden of the Truro facility.
There was some conflict in the evidence as
to the basis upon which a decision was made to make the
investigation national. The Commissioner's evidence was that the
decision was the result of the fact that the prison is a national
institution and the incident was a serious one. The Regional Deputy
Commissioner thought that the impetus for the change came from the
hostage-taking and the continued disruption in the Segregation Unit.
At least one of the members of the Board of Investigation understood
that the change came about as a result of the IERT attendance.
2.7.3 Composition
of the Board
The Board of Investigation was comprised of
a chairperson, who was at the outset the Deputy Warden of Joyceville
Institution until September 15, 1994, when she was appointed by
Andrew Graham as Regional Administrator, Correctional Operations.
Mr. Graham described this as a positive part of her career
development. The Commissioner said it may have been an advantageous
transfer.
The Board had three other members: one was
the Assistant to the Regional Deputy Commissioner. He was supervised
by and received a performance review from Mr. Graham before the
finalization of the investigation report. One was Acting Project
Officer and Management Trainee in the Regional Headquarters office;
she was supervised by Mr. Graham. The last one was Thèrése Leblanc
who was then the Warden of the new Truro facility until she became
the Warden of the Prison for Women, a position she was asked to
consider during the week of September 12, 1994.
Although CSC policy allowed for the
appointment of a non-CSC member to the Board of Investigation, no
such member was appointed.
Both the Commissioner and the Senior Deputy
Commissioner were adamantly of the view that the fact that the
members of the Board were in the throes of review and promotion, and
that they were reporting to their superiors, did not provide an
incentive to report to their superiors what Board members would
expect their superiors wanted to hear. They rejected any suggestion
of bias, or the appearance of bias which might result from these
relationships. Mr. Graham did acknowledge that by virtue of their
positions, Board members might have been more responsive to
suggested changes to the report coming from National and Regional
Headquarters, and felt this compounded the unhealthiness of an
overly extended editing process (described below). Mr. Edwards
indicated that he now regrets the failure to appoint an outside
member to the Board.
2.7.4 Mandate of
the Board of Investigation
2.7.4.1 Subject
matter
The terms of reference used for the initial
Convening Order at the Regional level and at the National level are
essentially standard form terms of reference, and it is apparent
that very little was done to focus them on the events that the Board
of Investigation in this case was asked to examine. The terms of
reference specifically refer to the incident on April 22nd and
to the hostage taking and attempted suicide which took place on
April 24th (though the terms of reference wrongly attribute those
events to April 25th). There is no specific reference to any other
events in the Segregation Unit for the period April 22nd to
26th, to the IERT attendance which commenced on April 26th, the
subsequent body cavity search, or any other events immediately
surrounding those specifically referred to in the Convening Order.
The evidence indicated significant confusion about the scope of the
Board's mandate.
The Commissioner testified that he intended
the Board to examine the IERT attendance. He did expect the Board to
address the propriety of placing the inmates in segregation, but did
not expect them to go beyond the events of April 27th. He did not
consider that the transfer was a response to the incident, although
he found the conclusion of one Board member that the transfer was a
"staff response", in the words of the Convening Order, to be a
logical one.
The two Board members who testified recalled
some uncertainty about whether or not the IERT was included in the
mandate, and that clarification was sought from Mr. Graham who
confirmed that it was. However, the chairperson testified that the
Board did not do a thorough review of the IERT response,
notwithstanding specific complaints from inmates interviewed by the
Board about the IERT behaviour and concerns expressed by Dr.
Pearson, because it was not part of the Convening Order. She
indicated the Board did not follow up on: comments made to it about
a bartered for body cavity search; the comments by Ms. Emsley that
no security blankets were provided after the IERT attendance; the
effects of the general lockdown of the prison which occurred, which
were raised with them in interviews; the effects of double shifts on
staff (though they were discussed among Board members); or the staff
demonstration; because they thought all these issues were outside
their terms of reference.
Ms. Leblanc testified that she thought the
IERT was a staff response and a matter of sufficient significance
that it was included in the Convening Order, but that the Board's
focus was very much on the incident of the 22nd. The Board felt it
had to draw the line somewhere, and although the question was not
simply one of keeping the task manageable, the Board did feel the
task was somewhat overwhelming in the time available.
In addition to the matters covered in the
Convening Order, Mr. Graham suggested to the Board of Investigation
that it make an assessment of how well the psychologists were
operating within the institution. Although it was not his intention
to add materially to the already heavy workload of the Board of
Investigation, it added significantly to an already burdensome task.
2.7.5 Timeframe
The Convening Order signed by the
Commissioner gave the Board of Investigation until June 10, 1994 to
submit a written report to him. This does not mean that the Board
had five weeks in which to conduct the investigation. The
chairperson testified that most of the work done on the
investigation was done on weekends and evenings when she could free
herself from her regular duties at Joyceville. Ms. Leblanc was only
able to be in Kingston to work with the other Board members from May
4th to 6th, 16th to 20th, and June 6th to 10th. In other words,
the Board had a very restricted period of time in which to discharge
its mandate.
The Board in fact submitted a report, which
was treated as a draft, on June 14th. In an editing process
described more fully below, the report was re-drafted a number of
times and finalized on September 13, 1994. It was released on
January 20, 1995.
2.7.6 Information
gathering and preservation
There is no specific system in place to
ensure that all relevant information is identified and produced to a
Board of Investigation, and in this case, not all relevant documents
were supplied. Indeed, as became evident during the course of this
Commission's proceedings, there was no effective system at the
Prison for Women by which to determine what relevant documents there
were, nor where they were located. In addition, there was no
mechanism to locate and produce documents outside the Prison for
Women - for example, from Regional or National
Headquarters.
Among a number of documents which were not
provided to the Board of Investigation, and of which it was not
aware, was the material filed in support of the habeas corpus application. The Commissioner
received a report of the habeas corpus
application indicating that it contained serious allegations about
denial of access to counsel, to psychologists, to yard time, and to
other amenities. He had no recollection of contacting the Board to
determine if they were exploring these allegations. Though nothing
in the terms of reference directed the Board members to these
issues, and nothing was done to ensure they were aware of the habeas corpus applications, he was
nonetheless "almost certain that in their investigation they would
be uncovering these allegations in the matter of inmates". The
Commissioner took no other steps to look into the allegations.
In addition, there were documents which the
Board did request, but which were not provided.
There were also documents which the Board of
Investigation obtained, but which were not preserved and were not
available for this Commission.
In addition to reviewing documents, the
Board interviewed 37 individuals. The Board could not possibly have
conducted thorough interviews of all people who might have added
materially to the information before it in the time available, and
it did not do so. Among the people the Board did not interview were:
members of the CAC though their attendance in the Segregation Unit
at the material time was recorded in the segregation log; all of the
psychologists who attended in the Segregation Unit during the
material period; inmates other than those directly involved who
witnessed the events of April 22nd; all of the people involved in
the management of segregation over the material period, including
for example, Assistant Warden Blackler, members of the IERT other
than the Coordinator; or, any representatives of Regional or
National Headquarters. Nor did the Board make a concerted effort to
seek all of the information which the directly involved inmates
might have provided, possibly with the assistance of their counsel,
and subject to concerns about the criminal proceedings.
It is impossible to reconstruct exactly what
information was gleaned from the interviews which did take place,
because the only records of them are contained in the cryptic
handwritten notes of two of the Board members. Whether this record
would have been substantially improved had a third Board member's
notes been retained is impossible to tell.
In addition to assembling and reviewing
documentation and to conducting interviews, the Board of
Investigation reviewed portions of the April 26/27th video of the
IERT attendance. The Board did not review the video of the May 6th
transfer of certain of the involved inmates, and therefore was not
in a position to compare the procedure used to conduct strip
searches on that occasion with the one used on April 26/27th.
The Board's review of the April 26/27th
video focused only on portions of the strip search. They
fast-forwarded through the balance. In the result, the Board was not
aware, and hence not in a position to assess the significance of:
the IERT ripping and then cutting the clothes off inmate Morrison;
the apparent lifting of inmate Young's gown by one of the IERT
members; the four minute gap in the tape of one of the strip
searches; the indication to inmate Young that the videos are sent
home in response to her question about them; the comments and
questions which took place throughout the procedure, including
multiple requests to have the windows closed; nor any of the details
in the portions of the tape through which they fast-forwarded.
2.7.7 The process
of editing and release
As noted above, the Board completed its
investigation and initial report on June 14, 1994. Before doing
so on June 6, 1994, the Board met with the Regional Deputy
Commissioner and his assistant in order to brief the Regional Deputy
Commissioner on the proposed recommendations to obtain "some
reassurance that we were on the right track", which reassurance he
provided. Mr. Graham remembers the meeting, but his
recollection is that he merely said that the Board should report
what it had to.
The Board also briefed Mr. Vantour, who is
in charge of National Investigations, and his assistant, seeking
guidance as to the appropriateness of their findings and
recommendations, but he responded that it was the Board's task to do
their own investigation and that he would not interfere.
The report was then sent to National
Headquarters which coordinated a program of editing and release of
the report which entailed the following:
2.7.7.1 Editing
and re-drafting
Between June 14th and September 14th there
was a process of revision and editing which produced nine or
possibly ten re-drafts of the report.
The Board's initial report contained the
statement "questions will undoubtedly be raised about using male
staff members to restrain nude female inmates", reflecting the
Board's concern about the use of male staff in applying restraints
to the inmates. That is the only statement in any version of the
report which clearly indicates that the inmates were naked in front
of the IERT. The statement is crossed out in one of the drafts
maintained at National Headquarters and does not appear in the final
report. Neither the chairperson nor Ms. Leblanc recalled any
discussion concerning the omission of that sentence. Neither
realized that the deletion had been made until it was pointed out to
them in preparation for their testimony. Ms. Leblanc did not
consider the deletion appropriate.
The initial report contained reference to
the fact that the IERT attendance was recorded on videotape. That is
the only indication to anyone reading the report, specifically
anyone not familiar with the usual practice of the Correctional
Service concerning IERT's, that there was a video of these events.
In the drafts maintained by National Headquarters, a question is
raised in handwriting "does this have to be there?". In a subsequent
draft, the reference to the video is crossed out. It does not appear
in the final report. Again, neither the chairperson nor
Ms. Leblanc recalled any discussion about the deletion nor were
they aware of the deletion until these proceedings. Ms. Leblanc
considered the deletion inappropriate.
The Commission did not hear evidence from
anyone at National Headquarters to explain these deletions, and in
particular whose decision it was to make them. If the Board members
had closely read the last draft of the report in comparison to their
initial draft, they would have noted the deletions. However, the
changes were initiated at the level of the National Headquarters,
and they were contained in a myriad of changes and re-drafts. It
could not be expected that Board members would be alert to these
deletions unless they were specifically brought to their attention.
The editing process also included a number
of changes of substance which were suggested by Regional
Headquarters, and which reflect in large measure comments made by
the Prison for Women and the Warden. At least one member of the
Board was opposed to being requested to make such substantial
changes. However, in the event, the Board was persuaded to make a
number of changes of substance as a result of this process.
The Board of Investigation was operating
under the Inquiries Act, and s.13 of
that Act applied to its proceedings.
That section requires that anyone against whom a finding of
misconduct or an unfavourable report might be made be notified. The
inmates against whom many unfavourable reports were made were never
consulted about its content.
Mr. Graham agreed that the length and nature
of the editing process was in this case excessive and unhealthy.
2.7.7.2 Other
factors affecting release
It is Correctional Service policy not to
release investigation reports until an action plan has been
formulated. In this case, that process took from August 17th to
December 15th. The action plan which resulted is more of a
commentary than a detailed statement of what the Correctional
Service intended to do as a result of the report.
Before release of the report, it was
reviewed internally for privacy concerns. That process took from
September 20th to December 15th. The report was sent to the Privacy
Commissioner for review on December 15, 1994 and response received
on January 9, 1995.
The report was not sent to translation until
October 28th. The translation of the report was completed on
December 2, 1994.
On December 15, 1994, the Service contacted
the Ministry of the Attorney General in Ontario to confirm that the
release of the report would not interfere with the criminal
proceedings pending against the inmates. By early January, the
appropriate clearance was obtained, in light of the disposition of
the criminal charges. It is not clear what the result would have
been if criminal charges had proceeded to trial, but that might well
have complicated the release of the report.
2.7.8 The
results of the Board of Investigation
A number of errors and omissions were
identified during the course of this inquiry with respect to the
matters covered in the report. Among the more serious and misleading
errors were:
- the description of the strip searches in
the following terms:
"Inmate Twins is removed from
cell and taken to the shower area. She is
stripped by female staff and a paper gown is put on by female
staff. Restraint equipment is applied by IERT, cell effects
are packed by P4W staff and tagged. The bed is removed from the
cell and the inmate is placed back into it. Dr. Pearson checks
over inmate. This same procedure is
followed for inmates Paquachon, Young, Shea, Desjarlais,
Bettencourt, Morrison, and finally, Emsley."
and
"Female staff removed the clothing of the
first two inmates to be restrained. All other inmates removed
their own clothing. All inmates were then placed in restraint equipment by
IERT members." (Emphasis added.)
- the statement that "all inmates were
supplied with a mattress and a security blanket" after the IERT
attendance;
Among many issues not addressed in the
report were:
- the fact that the Board was not provided
with documents it had requested;
- the failure of the prison to comply with
the Correctional Service's policies on: decontamination of inmates
after exposure to mace; a full Use of Force Report for the April
22nd events, or any such report with respect to subsequent uses of
force in the Segregation Unit between April 22nd and April 26th,
including on the occasion of the IERT attendance;
- the failure of the prison to conduct a
thorough investigation of the April 22nd events, including timely
and untainted evidence gathering (including searches) and evidence
preservation;
- the breach by the prison of the legal
obligations: to advise the inmates of their right to counsel and
provide access without delay; to provide daily exercise to the
inmate population generally and to the segregated inmates
specifically; and to provide rights and amenities which were
denied in the Segregation Unit from April 22nd to April 26th and
thereafter; and the impact of these breaches on the ongoing
management of segregation;
- the misleading statements made to the
court about access to counsel in the habeas corpus materials (which the Board
did not have);
- whether the strip searches conducted on
April 26th and 27th were done in accordance with the law, and
Correctional Service policy prohibiting cross-gender strip
searches at the Prison for Women,
- any of the remaining issues with respect
to those strip searches which are set out elsewhere in this
report;
- the appropriateness, legality or any
other aspect of the continuing response of the Correctional
Service to the incidents, including the body cavity searches, the
transfer, the ongoing segregation of the inmates during the period
of the investigation, and the conditions associated therewith.
Virtually all of the matters noted above
were thoroughly canvassed in the evidence before the Commission
prior to the testimony of the Senior Deputy Commissioner and the
Commissioner. Notwithstanding that evidence, the briefing note
prepared for the Commissioner immediately before his testimony
concluded that the final investigation report "meets the needs of
the Service. It fulfils the goal of the investigative process".
The Senior Deputy Commissioner agreed the
report falls below the standard of what would be required for the
needs of the Service.
The Commissioner initially testified that he
found the report useful, fair, credible, and reliable and that it
largely fulfilled the requirements anticipated. Later, he expressed
the view that "its credibility is certainly weakened by the
deficiencies... noted. I guess one has to ask questions about the
reliability along the same lines...".
2.7.9
Findings
The first issue that emerges relates to the
errors and omissions in the Board of Investigation Report. I have
already alluded to the fact that the significance of these errors
and omissions was, at least with regard to the IERT intervention,
compounded by the unavailability of the videotape. Obviously, not
all the errors and omissions in the Board's report are of the same
magnitude. The mis-description of the strip search is extremely
serious, in that it conveys to the uninformed reader a totally
inaccurate impression of what took place. That, combined with a
statement to the effect that inmates were supplied with a mattress
and a security blanket after the IERT attendance, conveyed a
description of the situation that bears little resemblance to the
sparse reality. Even if the Board did not consider that IERT
attendance to be part of its mandate, by the time the decision was
made to cover it and to include a description of that procedure in
the report, it was imperative that this extraordinary use of force,
unprecedented at the Prison for Women, be accurately investigated
and described.
Essentially, the deficiencies in the Board
of Investigation report are at two levels. At the factual level, the
report, in its overall presentation, over-emphasizes the
dangerousness of the inmates involved in the April 22nd incident, by
providing a lengthy, detailed profile of each inmate, and underplays
the obvious shortcomings of the prison's response to these
incidents, to the point of depicting the IERT attendance totally
inaccurately.
On a second level, the report must also be
criticized for failing to identify and address the numerous
departures from law and policy that occurred throughout the period
under their scrutiny.
The inadequacies of the Board of
Investigation Report are largely attributable to the lack of
specificity in the mandate given to the Board, to the timeframe
under which it had to operate, to the limited resources put at its
disposal, and to the lack of specific instructions as to how to
proceed.
The mandate given to the Board, as expressed
in the terms of reference taken from a standard model, contains
directions that are clearly inapplicable in this case, and some that
are ambiguous. It gives no specific instruction with respect to
whether the IERT intervention is to be covered in the investigation.
This created a source of considerable ambiguity which seem to have
been resolved through casual conversation with the then Deputy
Regional Commissioner, and in favour of a less than thorough
examination of the IERT cell extraction process. In the same way,
the terms of reference do not specifically direct the Board to
examine any infringement of inmates' legal rights or any breach of
Correctional Service policy, nor does it require the Board to
comment in any way on the appropriateness of the prison management's
response to the incidents. All of these matters should figure
prominently in any internal investigation by the Service of
incidents of this nature.
The Commissioner has already conceded that
the composition of the Board was unsatisfactory, in that there was
no representation of persons outside the Correctional Service on the
Board. The Commissioner indicated that this had since been remedied
and that all Boards of Investigation appointed at the national level
would be composed of at least one outside member.
As for the editing process, upon reviewing
the various drafts that were edited at the National Headquarters, it
is apparent in this case that the process contributed little to the
quality of the report, and indeed, was responsible in part for the
delay in releasing it and for the inaccurate and misleading
description of the IERT intervention as it was finalized in the last
version.
It is beyond dispute that the initial
investigation conducted by the board members in this case was vastly
different from the investigation conducted by this inquiry, which is
fully independent, was constituted one year after the event, and was
given nearly one year to complete its mandate. The issue remains,
however, whether the Board could have performed a more useful
function. Even at that, it is apparent that the Board of
Investigation was not directed to focus its attentions on any
possible infringement of legal rights or serious breaches of policy
on the part of the prison management or the Regional Headquarters.
Whatever language was used in the terms of reference, it was
everybody's understanding that this was not the purpose of the
exercise and the Board was never internally faulted for having
insufficiently scrutinized the prison management's response to the
incidents. The monitoring of the Correctional Service's compliance
with the law, particularly the law dealing with prisoners' rights,
should always be a prominent part of Boards of Investigation's
mandates.
At present, the list of incidents that are
of such serious magnitude as to require a National Board of
Investigation comprise riots, murders, escapes and suicides.
Mistreatment of prisoners should be placed in the same category.
Finally, even when one examines the Board's
report on the narrowest possible interpretation of the Board's
mandate, it is difficult to conclude that the report serves the
needs of the Correctional Service well. It provides very little
insight into the background and possible causes of the incident of
April 22nd, even on such relatively simple factual matters as
whether or not the inmates involved were intoxicated at the time. If
the Board was incapable of making that determination days after the
events, one would have expected some comments about the shortcomings
of the prison search and reporting performance in that respect.
In its written submissions, the Correctional
Service contended that it was appropriate for the Board of
Investigation to focus on security matters as opposed to "matters of
ongoing management that may relate to the incidents under
investigation". I disagree entirely with that proposition. The
"matters of ongoing management" in this case included serious
breaches of the law, disregard of established correctional policies,
and ill-conceived managerial decisions. These matters were as
serious and worthy of investigation by the Service as were the
security concerns that arose out of the April 22nd events, which, in
any event, were neither explained nor resolved by the Board's
efforts. This submission is also at odds with the fact that the
Board's report did focus on ongoing management issues, even to the
level of commenting on the management of the telephone policy (which
was unrelated to the incidents). But the Board failed to focus on
the most important management issues raised by these events.
The Correctional Service also submitted that
I should be reluctant to make recommendations based on my
examination of this single Board of Investigation process, if these
recommendations were to contradict the conclusions reached in the Fyffe Report of January 12, 1995 entitled
"Hard Lessons". Mr. Fyffe is a former Assistant Deputy Solicitor
General who was asked to examine the investigative process and
concluded "that this process has been effective in discovering the
facts of an incident, and should, with improvements, continue to be
the means of conducting investigations". The Board of
Investigation's mandate in this case was a standard one and both the
report and the process seem to have met the standard expectations of
the senior officials in the Service, at least at the time it was
produced. It would therefore seem to me to be perfectly reasonable
to generalize from the examination of this single, but admittedly
typical Board of Investigation process. For that reason, I have no
hesitation in recommending that the fact finding methods of Boards
of Investigation be improved, and, more importantly, that the focus
of investigations include prominently the performance of the Service
and the legality of its actions. I will make more specific
recommendations when I return to this issue in Part II of this
report.
2.8 Segregation Post-April 26,
1994
2.8.1
Introduction
The law distinguishes between administrative
and disciplinary (punitive) segregation. At the Prison for Women,
inmates in disciplinary segregation and most inmates subject to
administrative segregation are kept in the same unit, referred to as
the dissociation side, which is separate from the protective custody
side of the Segregation Unit. The conditions of confinement are
indistinguishable between disciplinary and administrative
segregation, and are harsher than the conditions in protective
custody.
2.8.2 The
law
2.8.2.1
Administrative segregation
An inmate may be placed in administrative
segregation only on the basis that her presence in the general
population is a threat to the security of the penitentiary, the
safety of anyone including herself, or the investigation of a
criminal charge.
Even then, the inmate may be segregated only
if there is no reasonable alternative and must be returned to the
general population at the earliest appropriate time.
The question of whether the legal
requirements for continued segregation are met must be reviewed 5
days after the inmate is segregated, and at least every 30 days
thereafter, in a hearing involving the inmate, with the resulting
decision being made by the Warden.
Every 60 days the Regional Deputy
Commissioner or someone designated by him must determine whether the
legal requirements for continued segregation are met.
2.8.2.2
Disciplinary segregation
An inmate may be placed in disciplinary
segregation only as punishment after conviction of an institutional
offence, determined by an independent adjudicator.
Disciplinary segregation is limited to a
maximum of 30 days, or where sanctions of segregation are served
consecutively, to a total maximum of 45 days.
2.8.2.3
Segregation conditions
The Segregation Unit must be visited every
day by the Warden, or by a senior manager designated by the Warden
in Standing Orders accessible to inmates.
Inmates are entitled to access to counsel,
daily exercise, and to conditions of confinement as set out at
below.
These principles emerge from the following
provisions.
CCRA:
STATUTE
31(1)The purpose of administrative
segregation is to keep an inmate from associating with the general
inmate population.
(2)Where an inmate is in administrative
segregation in a penitentiary, the Service shall endeavour to return
the inmate to the general inmate population, either of that
penitentiary or of another penitentiary, at the earliest appropriate
time.
(3)The institutional head may order that an
inmate be confined in administrative segregation if the
institutional head believes on reasonable grounds
(a)that
(i)the inmate has acted, has
attempted to act or intends to act in a manner that jeopardizes the
security of the penitentiary or the safety of any person, and
(ii)the continued presence of
the inmate in the general inmate population would jeopardize the
security of the penitentiary or the safety of any person,
(b)that the continued presence of the inmate
in the general inmate population would interfere with an
investigation that could lead to a criminal charge or a charge under
subsection 41(2) of a serious disciplinary offence, or
(c)that the continued presence of the inmate
in the general inmate population would jeopardize the inmate's own
safety,
and the institutional head is satisfied that
there is no reasonable alternative to administrative segregation.
32.All recommendations to the institutional
head referred to in paragraph 33(1)(c) and all decisions by the
institutional head to release or not to release an inmate from
administrative segregation shall be based on the considerations set
out in section 31.
33(1)Where an inmate is involuntarily
confined in administrative segregation, a person or persons
designated by the institutional head shall
(a)conduct, at the prescribed
time and in the prescribed manner, a hearing to review the inmate's
case;
(b)conduct, at prescribed times
and in the prescribed manner, further regular reviews of the
inmate's case; and
(c)recommend to the
institutional head, after the hearing mentioned in paragraph (a) and
after each review mentioned in paragraph (b), whether or not the
inmate should be released from administrative segregation.
33(2)A hearing mentioned in paragraph (1)(a)
shall be conducted with the inmate present unless
(a)the inmate is voluntarily
absent;
(b)the person or persons
conducting the hearing believe on reasonable grounds that the
inmate's presence would jeopardize the safety of any person present
at the hearing; or
(c)the inmate seriously
disrupts the hearing.
34.Where the institutional head does not
intend to accept a recommendation made under section 33 to release
an inmate from administrative segregation, the institutional head
shall, as soon as is practicable, meet with the inmate
(a)to explain the reasons for
not intending to accept the recommendation; and
(b)to give the inmate an
opportunity to make oral or written representations.
36(1)An inmate in administrative segregation
shall be visited at least once every day by a registered health care
professional.
(2)The institutional head shall visit the
administrative segregation area at least once every day and meet
with individual inmates on request.
37.An inmate in administrative segregation
shall be given the same rights, privileges and conditions of
confinement as the general inmate population, except for those
rights, privileges and conditions that
(a)can only be enjoyed in association with
other inmates; or
(b)cannot reasonably be given owing to
(i)limitations specific to the
administrative segregation area, or
(ii)security requirements.
87.The Service shall take into consideration
an offender's state of health and health care needs
(a)in all decisions affecting the offender,
including decisions relating to placement, transfer, administrative
segregation and disciplinary matters; and
CCRA:
REGULATIONS
19.Where an inmate is involuntarily confined
in administrative segregation, the institutional head or a staff
member designated in accordance with paragraph 6(1)(c) shall give
the inmate notice in writing of the reasons for the segregation
within one working day after the inmate's confinement.
21(1)Where an inmate is involuntarily
confined in administrative segregation, the institutional head shall
ensure that the person or persons referred to in section 33 of the
Act who have been designated by the institutional head, which person
or persons shall be known as a Segregation Review Board, are
informed of the involuntary confinement.
(2)A Segregation Review Board referred to in
subsection (1) shall conduct a hearing
(a)within five working days
after the inmate's confinement in administrative segregation; and
(b)at least once every 30 days
thereafter that the inmate remains in administrative segregation.
(3)The institutional head shall ensure that
an inmate who is the subject of a Segregation Review Board hearing
pursuant to subsection (2)
(a)is given, at least three
working days before the hearing, notice in writing of the hearing
and the information that the Board will be considering at the
hearing;
(b)is given an opportunity to
be present and to make representations at the hearing; and
(c)is advised in writing of the
Board's recommendation to the institutional head and the reasons for
the recommendation.
22.Where an inmate is confined in
administrative segregation, the head of the region or a staff member
in the regional headquarters who is designated by the head of the
region shall review the inmate's case at least once every 60 days
that the inmate remains in administrative segregation to determine
whether, based on the considerations set out in section 31 of the
Act, the administrative segregation of the inmate continues to be
justified.
COMMISSIONER'S
DIRECTIVES
CD590
- ADMINISTRATIVE SEGREGATION
INSTITUTIONAL RESPONSIBILITIES
7.When an inmate is placed in administrative
segregation, the institutional head shall be responsible for
ensuring:
a.the provision of safe and
humane custody;
b.the investigation of the
circumstances leading to the segregation;
c.the development of a plan to
resolve the situation that led to the segregation;
d.in the case of extended
segregation, the development of a plan, normally within 60 days of
placement in segregation, addressing in detail the schedule of
activities for the inmate for those areas outlined in paragraph 24;
and
e.the completion of a written
psychological or psychiatric opinion respecting the inmate's
capacity to remain in administrative segregation, at least once
every 30 consecutive days, to be shared with applicable staff and
placed on the inmate's file.
8.The inmate's state of health and health
care needs shall be taken into consideration in all decisions
relating to administrative segregation.
9.When an inmate requests placement in
administrative segregation for his or her own protection, the
institutional head, or his or her delegate, shall consider the
request and ensure that:
c.any identified aggressors
associated with the request for protection are confronted and, if
necessary, removed from the general inmate population;
d.reasonable safety measures
are provided for the inmate while maintaining the greatest possible
level of association under the circumstances;
e.early resolution of the
situation is attempted;
f.the inmate, if placed in
administrative segregation, is returned to the general inmate
population as soon as it is possible to safely do so.
11.Where it is necessary to place an inmate
involuntarily in administrative segregation for his or her
protection, the action required by subparagraphs 9 c., d., e. and f.
shall apply.
PROCEDURES RESPECTING INVOLUNTARY PLACEMENT
IN ADMINISTRATIVE SEGREGATION
14.The institutional head shall establish an
administrative segregation review board, to be chaired by a staff
member at the Unit Manager level or above, to review the cases of
all administratively segregated inmates.
15.The institutional head shall ensure that
the administrative segregation review board is informed of each
inmate's involuntary confinement in administrative segregation.
16.Information related to the case of each
segregated inmate shall be collected for the review in accordance
with the criteria respecting such reviews outlined in the Case
Management Manual.
17.The review board shall make
recommendations to the institutional head, in writing, respecting
the continuation or discontinuation of the segregation.
18.The review board's recommendation shall
be to return the inmate to the general inmate population unless the
board is satisfied that the inmate's continued custody in
segregation is warranted pursuant to the considerations in section
31 of the Corrections and Conditional Release Act.
19.The institutional head shall review all
recommendations made by the review board and he or she shall decide
either to continue the period of segregation or to release the
inmate from segregation.
20.Where an administrative segregation
review board recommends the release of an inmate from segregation
and the institutional head does not concur with the recommendation,
the institutional head shall personally meet with the inmate as soon
as practicable and explain the reasons for the decision. The inmate
shall be given an opportunity to respond in person or in writing.
21.An inmate involuntarily placed in
administrative segregation shall receive:
a.a written explanation of the reasons for
the segregation within one working day of placement. This
explanation shall be provided by the institutional head or a staff
member designated by the institutional head for that purpose in
institutional standing orders;
b.a hearing before the administrative
segregation review board within 5 working days of the placement in
segregation. The hearing shall be conducted with the inmate present
unless:
(1)the inmate is voluntarily
absent;
(2)the person or persons
conducting the hearing believe on reasonable grounds that the
inmate's presence would jeopardize the safety of any person present
at the hearing; or
(3)the inmate seriously
disrupts the hearing.
c.a reasonable opportunity to present his or
her case;
d.regular reviews by the segregation review
board no less frequently than once every 30 days, if the inmate
remains in administrative segregation;
e.notification in writing at least 3 working
days prior to the date and time of each regular review and the
inmate's intention to attend or not attend the review shall be
documented;
f.at least 3 working days prior to each
review:
(1)a copy of any documentation
to be used in the review that is pertinent to the inmate's
particular case, except that information which is exempt in
accordance with Commissioner's Directive 095, entitled "Information
Sharing with Offenders"; and
(2)at the inmate's request,
relevant Commissioner's Directives, Regional Instructions, and
Institutional Standing Orders;
g.written notification of the review board's
recommendation to the institutional head and the reasons for the
recommendation;
h.written notification of the institutional
head's decision resulting from each review within 48 hours of
the review.
22.The institutional head shall ensure a
process is in place to assist inmates in understanding their
procedural rights as outlined above.
CONDITIONS OF CONFINEMENT
23.Inmates in administrative segregation
shall be accorded the same rights, privileges and conditions of
confinement as those inmates in the general inmate population except
for those that:
a.can only be enjoyed in
association with other inmates; or
b.cannot reasonably be given
owing to limitations specific to the administrative segregation
area, or security requirements.
24.Irrespective of the limitations referred
to above, inmates in administrative segregation shall be provided
with:
a.case management services;
b.access to spiritual support;
c.recreational activities;
d.psychological counselling;
and
e.administrative, educational
and health care services.
STAFF VISITS TO THE ADMINISTRATIVE
SEGREGATION AREA
25.The administrative segregation area shall
be visited at least once every day by the institutional head or by a
staff member who is designated by the institutional head for that
purpose, by name or position, in institutional standing orders. The
institutional head shall ensure that those designated are of a
sufficiently senior position to ensure the correct and fair
practices of the segregation area. Normally, such delegation should
not be below the Unit Manager level.
26.The manager visiting the segregation area
shall visit any segregated inmate upon request by the inmate.
27.Each inmate in segregation shall be
visited daily by a registered health care professional.
ADMINISTRATIVE SEGREGATION RECORDS
28.The institutional head shall ensure that
the CSC Form 218, entitled "Dissociation Log", is maintained in the
administrative segregation area and that all relevant sections of
the form are completed.
29.Copies of all documents pertaining to an
inmate's segregation, including segregation review board minutes,
employment records, and the dissociation log shall be retained on
the inmate's file.
REGIONAL REVIEW OF SEGREGATED CASES
30.Where an inmate is confined in
administrative segregation, the Deputy Commissioner, or a staff
member at the regional headquarters, who is designated by the Deputy
Commissioner, shall review the inmate's case at least once every
60 days that the inmate remains in administrative segregation
to determine, based on the considerations set out in section 31 of
the Corrections and Conditional Release Act, whether the
administrative segregation of the inmate continues to be justified.
NATIONAL REPORTING
31.Regional Deputy Commissioners shall
report to the Commissioner on a semi-annual basis (December 31 and
June 30) the number of inmates kept in administrative segregation,
by name and by category (involuntary and voluntary) and the reasons
therefor, for any inmates administratively segregated in excess of
90 days.
PRISON FOR
WOMEN STANDING ORDERS
POLICY OBJECTIVE
1.To ensure that segregated inmates are
treated in a fair and humane manner and provided with program
opportunities to the greatest extent possible.
2.To ensure a fair decision making process
in accordance with the duty to act fairly.
INVOLUNTARY ADMINISTRATIVE SEGREGATION
3.When an inmate is involuntarily
segregated, the Correctional Supervisor shall immediately complete
Correctional Service form 830 - Segregation
- Involuntary Placement/Admission. The Correctional
Supervisor will ensure that sufficient detail is provided in Section
I of the form, and that Section II is signed by the inmate or by the
witnessing officer. Normally prior to the inmate's placement in
segregation, the Unit Manager shall be informed of the placement.
4.The Correctional Supervisor will also
complete form 830-1 Director's Review of Inmate's Segregated Status
providing detailed reasons for the inmate's placement in
segregation. This form will be attached to Form 830 and submitted to
the dissociation review file in the security office.
5.The Unit clerk will review the Segregation
file each morning to ensure the prompt distribution of any
segregation forms. Copies of such forms will be left in the
segregation file for the Unit Manager's review. Original shall be
hand delivered to the Warden's office for signature, following which
they shall be returned to the Unit Clerk for distribution to the
inmate and to file. The Unit Clerk will ensure that necessary bring
forwards (B.F.'s) are maintained.
SEGREGATION REVIEW BOARD
11.The Unit Manager will chair the
Segregation Review Board. In addition to the Unit Manager, this
multidisciplinary board shall include at least one of the following
members.
- Correctional Supervisor
- Case Management Officer
- Co-ord. Case Management
- I.P.S.O.
12.Each inmate will be given a hearing
at the Segregation Review Board within five (5) working days of her
involuntary or voluntary placement in administrative segregation. If
the inmate remains segregated, regular reviews by the Segregation
Review Board will occur no less frequently than once every thirty
(30) days.
13.The Unit Manager will complete CSC Form
988 - Administrative Segregated Status Review, at the
time of each review, and will forward the completed form to the
Warden for review and signature.
14.Once every thirty (30) days, the Case
Management Officer shall provide a detailed program summary report
outlining the inmate's progress and activities including options and
recommendations regarding release to general population for
consideration by the Segregation Review board. Case Management
Officer will present his/her case at the thirty (30) day review.
15.Segregation Review board shall convene
weekly on Thursday morning at 0930 hours. The monthly Segregation
Review Board shall convene on the first Thursday of the month. Other
reviews may also occur at the Unit Manager's discretion.
16.The Unit Manager shall ensure that all
inmates involuntarily segregated for sixty (60) days have their
cases referred to the Deputy Commissioner for review, using Form
988, Review of Inmate's Segregated Status.
17.The Warden or the person acting in her
position shall make the decision regarding release or continued
segregation. Where the Segregation Review board recommends the
release of an inmate from segregation and the Warden does not concur
with the recommendation, or where an inmate requests segregation or
continued segregation, and the Warden does not concur, the Warden
shall meet personally with the inmate to explain the reasons for her
decision and give the inmate the opportunity to respond in person
and/or in writing.
18.A written psychiatric or psychological
evaluation shall be completed at least once every thirty (30) days
addressing the inmate's capacity to remain segregated and any
concerns regarding potential for suicide or self-inflicted injury.
The gist of this report shall be provided to the Segregation Review
Board and to the inmate prior to her hearing.
INSTITUTIONAL RESPONSIBILITIES
19.An investigation regarding the
circumstances leading to segregation shall be completed as soon as
possible. Details shall be included on Form 988 - Review
of Inmates Segregated Status unless considered confidential in which
case they shall be documented using form - Protected
Information Report.
20.A plan shall be developed for each inmate
to address the situation that led to segregation and to ensure that
in the case of voluntary segregation, if necessary, identified
aggressors are removed from population.
PROCEDURAL RIGHTS
INVOLUNTARY PLACEMENT
21.The inmate shall be provided with written
explanation of reasons for dissociation within twenty-four (24)
hours of placement using forms 830 and 830-1.
22.The inmate shall be provided with written
notification of her review at least forty-eight (48) hours prior to
the date and time of each review and her intentions to attend or not
attend shall be documented using form - Notification of
Review (Annex "A").
23.In case where the inmate wishes to waive
her right to forty-eight (48) hours notice of review she shall sign
form - Notification of Review.
24.A copy of all documentation being used in
the review of an inmate's case shall be provided to her at least
forty-eight (48) hours prior to each review. If the inmate requests
a review earlier than her scheduled review and has not received
relevant documentation forty-eight (48) hours prior, she must sign
form Notification of Review.
25.Relevant Commissioner's Directives,
Regional Instructions, and Standing Orders shall be provided to the
inmate upon request.
26.Written notification of the decision
resulting from each review shall be provided to the inmate within
forty-eight (48) hours of the review by copying Form 988 to the
inmate.
27.Segregated inmates shall be assisted in
understanding their procedural rights by providing them with a copy
of form Dissociation Procedural Rights (Annex "B") at least
forty-eight (48) hours prior to her first review. Copies of this
form shall be provided to the inmate immediately following
admission.
28.Where an inmate is segregated as a
result of an investigation of a criminal offence, she shall be
immediately advised of her rights, normally by the IPSO, and allowed
immediate telephone access to her lawyer.
CONDITIONS OF CONFINEMENT
29.Inmates in administrative segregation
shall be accorded the same rights and privileges as inmates in
general population except for those that cannot be accorded due to
facility restrictions or special security concerns. Any such
restrictions must be approved by the Unit Manager.
30.All inmates in administrative segregation
shall be provided with case management services, spiritual support,
recreation activities, psychological counselling, administrative,
educational and health care services.
STAFF VISITS TO ADMINISTRATIVE SEGREGATION
31.Daily visits will be conducted by the
Warden or Management delegate. Management delegates are Deputy
Warden, Assistant Warden Management Services and Unit Managers
- or any person acting in that capacity. Segregation
visits will be as follows:
Monday - Deputy Warden
Tuesday - Unit Manager
Wednesday - AWMS
Thursday - Unit Manager
Friday - Warden
During the weekend and on statutory holidays
the officer-in-charge shall visit administrative segregation. Health
Care staff shall visit the area daily. All visits will be recorded
on the individual segregation log sheet.
ANNEX
"B"
SEGREGATION PROCEDURAL RIGHTS
1.Written explanation of the reasons for
your placement in segregation within twenty-four (24) hours of your
placement.
2.A hearing before the administrative
segregation review board within five (5) working days of your
placement.
3.Regular reviews by the Segregation
Review Board, no less than once every thirty (30) days.
4.Written notification of your review at
least forty-eight (48) hours prior to the date and time of your
review.
5.A copy of documentation to be used in your
review forty-eight (48) hours in advance of your review.
6.Upon your request, a copy of the relevant
Commissioner's Directives, Regional Instructions, and Institutional
Standing Orders will be provided.
7.You have the right to personally attend
the Segregation Review Board.
8.Provision of written notification of the
decision resulting from each review within forty-eight (48) hours of
the review.
2.8.3 What
occurred
2.8.3.1 Rights,
privileges and conditions of confinement
On April 27, 1994, the Warden's order that
the inmates in segregation were to get nothing without specific
direction from her, was forcefully repeated in the segregation log,
and even more stringently interpreted than in the days before the
IERT attendance. The resulting regime of denial continued for an
extended period of time. While there may be some disagreement about
details of that regime, its general nature is not in dispute.
As has been noted, the inmates had nothing
but paper gowns until the middle of the day on April 27th. They
were then given one security blanket each. They were denied a second
security blanket until three days later, and then there were not
enough to go around. Mattresses were not reintroduced in segregation
at the Prison for Women until May 10th. Restrictions on the
availability of clothing continued for some period of time, and even
included the failure to comply with Unit Manager Hilder's direction
that women be provided with street clothes prior to attending in
court. In the period immediately following April 27th, toilet paper
was restricted to "one or two squares" per inmate. Underwear was
denied, even in the circumstance of an inmate who required the use
of a sanitary pad with vaginal cream. Regular cleaning of the
segregation area, garbage removal and laundry was very slow to
resume. At the Prison for Women, showers were not regularly provided
in the initial weeks. Phone calls (including calls to the
Correctional Investigator) were denied, as were specific requests
for cigarettes, ice and facecloths. Reading and writing materials
were initially denied and then reintroduced, on a restricted basis.
Telephone calls were restricted and sometimes the telephone
available for inmates was simply not in service. Throughout this
period, the Correctional Investigator and the Executive Director of
CAEFS both recorded and remarked to prison officials on the extreme
dirtiness of the Segregation Unit and the unsatisfactory conditions
for the inmates.
While there was some attempt to suggest that
the basis of the overall regime was grounded in security concerns,
most witnesses who testified appeared to concede that there was
little in the way of specific security justifications for the
deprivations noted above.
Programming was not supplied in the
Segregation Unit until cell-based anger management was introduced in
the fall of 1994. The inmate correctional plans, for example, those
of inmate Morrison of September, 1994, contemplate that they will
resume necessary programming (in her case substance abuse, anger
management, cognitive skills) only upon release from segregation.
While psychologists were able to visit the
unit, they were not able to conduct private counselling sessions.
Upon the return of the inmates transferred to the Regional Treatment
Centre, rules were introduced prohibiting visits by the peer support
group in the dissociation area.
The minutes of a senior management meeting
in late September, 1994 indicate that an inmate request for crafts,
games and television in the Segregation Unit was deferred for
further study and the Unit Manager testified that her first
recollection of crafts in the Segregation Unit was in December of
1994.
When the inmates who had been transferred to
the Regional Treatment Centre were returned, heavy treadplate was
welded to the bars of all cells in the dissociation unit. This was
done to discourage the throwing of objects or fluids from the cells.
There had been no incidents of throwing anything through the bars
after April 27th, either at the Regional Treatment Centre or at the
Prison for Women. The effect of the addition of the treadplate was
to increase markedly the oppressiveness of the dissociation unit
cells, and the isolation of their inhabitants. Although almost
$38,000.00 was spent installing the treadplate, it was not
considered appropriate to spend the $2,000.00 which had been
estimated as necessary to provide electricity to the cells so that
televisions or radios could be provided, until late November or
early December of 1994.
Although restraint equipment ceased to be
used for movement outside the Segregation Unit when certain of the
inmates were at the Regional Treatment Centre, restraint equipment
was reintroduced for such purposes when they returned to the Prison
for Women and continued to be used on all but two of the women
involved as late as December 1, 1994. Within the unit, the use
of restraint equipment was employed whenever it was requested by
someone coming into the unit who was concerned about personal
safety.
The cameras which were installed in the
cells of the Segregation Unit when the inmates returned from the
Regional Treatment Centre were used for constant monitoring and not
turned off. As late as November 15, 1994, the justification for this
use of cameras provided to the Correctional Investigator by Warden
Leblanc was that this was "not an issue solely dependent on the
offenders' behaviour, but also one of the officers' ability to
continually observe the offenders and their activities". This
explanation was repeated in a draft response for the Correctional
Investigator prepared for the Commissioner's signature on December
1, 1994. In her evidence, Warden Leblanc agreed that this was not an
adequate justification for the use of continuous camera monitoring.
There is evidence that the tension in the
Segregation Unit which resulted from the deprivations noted above
was compounded by staffing issues. Dr. Bater's observation was that
throughout the summer and fall of 1994, staff involved in the April
22nd incident were frequently on duty. The inmates told the
Citizens' Advisory Committee that they found it more difficult to
deal with these staff members than other staff, and that sometimes
they were directly provoked by some of those staff members. Dr.
Bater received some confirmation of such provocation from an older
staff member. He inquired about these staffing issues and was told
there was no alternative because of acute staff shortages.
2.8.3.2 Daily
Visits
It appears generally accepted among
Correctional Service representatives, particularly those charged
with obligations in relation to daily visits to segregation, that
the obligation is an important one, and that it is designed to allow
the senior manager to observe the conditions in segregation, and to
give the inmates an opportunity to express their concerns or
sometimes just to talk to the senior manager. Warden Leblanc
confirmed that there was no reason to suppose the importance of the
visit was any less on the weekends than on the weekdays.
It was also agreed that regardless of any
delegation which may take place, it is important that the Warden
continue to visit the segregation area on a regular basis.
From May or June of 1994 until the fall,
there was an unwritten change to the delegation of this important
responsibility in the Standing Orders of the prison. The Warden
decided that the daily visit obligation should be discharged by the
Unit Manager, although no such change was ever made in the Standing
Order. Unit Manager Hilder expressed concern about her ability to
discharge the obligation in light of her other responsibilities and
indeed, it is clear that the daily visit obligation was not
discharged.
There are two places where daily visits are
to be recorded: the individual segregation logs for the inmates, and
the Segregation Unit visitors' log. The former records no daily
visits by a senior manager and it is evident that the requirement to
note such visits on those logs was simply disregarded.
According to the Segregation Unit visitors'
log, from April 22, 1994 until January 19, 1995 (the last date on
which any of the inmates in question was in segregation), the Unit
Manager visited 43 times. During the same period, there were 101
weekdays and 77 weekend days on which there were no visits by any
senior manager, delegated or otherwise, to the Segregation Unit.
Evidence indicated that not every visit to segregation was recorded
in the visitors' logs; some were only noted in the segregation log.
However, Unit Manager Hilder confirmed that even when you put all of
those records together, the result is nothing like a daily visit in
the Segregation Unit. She testified that there was no serious
attempt that she was aware of to find a way of discharging the
important obligation of daily visits to the Segregation Unit in the
1994 period.
According to the visitors' log, Warden
Cassidy made a total of two visits to the Segregation Unit between
April 25th and her departure from the prison in September. She
testified that she generally did sign in when she visited the
Segregation Unit and that the visitors' log would be a fair
reflection of the number of her visits, with possibly one or two
additional such visits.
2.8.3.3 Plan to
achieve de-segregation
Notwithstanding the requirements of the law,
and the specific obligation in the Commissioner's Directive and the
prison's Standing Order to develop a plan to address the situation
that led to the segregation, such de-segregation plans for the women
involved in these incidents were not in place until early December,
1994.
2.8.3.4 Duration
of segregation and the segregation review process
(a)Duration of
segregation
The segregation of the six inmates involved
in the April 22nd incident began that night. They were released from
segregation between December 7, 1994 and January 19, 1995, seven and
half to nine months after they entered segregation. (During that
period, inmate Emsley was released from the prison and then
subsequently returned, directly to the Segregation Unit.)
(b)The reason for continued
segregation
It is difficult to discern any indication in
the segregation review process or otherwise, that any assessment was
made of whether the statutory requirements for continued segregation
were met.
As noted above, until just prior to the
release, there was no plan for the de-segregation of the inmates.
Such a plan would have indicated whether there were issues which
justified their continued segregation and which required resolution
before release. There is little, if any, consistency in the reasons
for continued segregation recorded in the segregation review
documents. Nor do the reasons advanced in the segregation reviews
specifically address the question of whether or how those reasons
relate to the statutory standards.
Throughout the segregation reviews, there is
repeated reference to the significance of the outstanding criminal
charges to the ongoing segregation of these women. In a number of
instances, the outstanding charges are identified as the
significant, and in some cases the only reasons for the continued
segregation. This is so notwithstanding that it was conceded, as it
must be, that the existence of such outstanding charges cannot by
itself justify continued segregation.
The Regulations contemplate that an
independent assessment of whether the statutory requirements for
continued segregation have been met will occur every 60 days at the
Regional Headquarters. The evidence raises a serious question as to
whether such independent reviews occurs. The need for an independent
review outside the prison was particularly compelling in this case.
It is acknowledged that the staff at the Prison for Women had been
traumatized by the April events, and their capacity to objectively
assess the need for continued segregation should have been carefully
scrutinized. As well, the unsatisfactory configuration of the
Segregation Unit at the Prison for Women made it particularly
inappropriate for long-term segregation. Finally, in 1993, the
Ontario Region had undertaken a series of meetings and steps
designed to improve institutional awareness of, and compliance with,
the statutory conditions which must be met to justify continued
segregation. The Prison for Women was, however, not involved by the
region in these initiatives. Indeed, the Regional Deputy
Commissioner did not examine any of the segregation reviews from the
Prison for Women, although he did so for male institutions.
It is apparent that the person conducting
the review at the Regional Headquarters is heavily influenced by the
judgement of the institution as reflected in the paper or electronic
record of the segregation review. Indeed, there was evidence that
insufficient attention was paid even to that record. For example,
the region confirmed the continued segregation of Ms. Twins, two
days after her release from segregation pursuant to the written
recommendation for such release contained in the material forwarded
to the region.
Commissioner's Directive 590 requires that
the Regional Deputy Commissioner report semi-annually to the
Commissioner naming all inmates who have been segregated in excess
of 90 days. The evidence indicated that the report was no more than
a list, and that there was no review at National Headquarters of
anyone in long-term segregation.
(c)The role of the
outstanding criminal charges in the continued segregation of the
inmates
The evidence raises two questions associated
with the relationship between the criminal charges laid against the
segregated inmates and the length of their segregation. The first
issue is the extent to which the Correctional Service proceeded on
the basis that the women would continue to be segregated until their
charges were disposed of, notwithstanding the fact that outstanding
criminal charges per se would not
constitute a reason for continued segregation under the Corrections and Conditional Release Act.
The second question is whether the inmates were influenced in their
decision to plead guilty to the criminal charges by their perception
that they would remain in segregation until their charges were
disposed of.
There are a number of indications in the
evidence of an assumption that the women would remain segregated
until their charges were disposed of.
In describing the decision to transfer
certain of the inmates to the Regional Treatment Centre, both the
Commissioner and the Senior Deputy Commissioner indicated that the
inmates would remain at the Regional Treatment Centre (and hence
would remain in segregation) until the outstanding charges were
disposed of. At the time, it was contemplated that the disposition
of the charges would take 12 to 18 months. In describing the
segregation process during the habeas
corpus application, a senior Correctional Service representative
indicated that it was not unusual to segregate an inmate pending the
disposition of criminal charges. Within the prison itself, the
minutes of a management strategy meeting in July of 1994 indicate
that the consideration of de-segregation of inmate Shea would be
dependent on the status of her charges. Staff are recorded as
continuing to express concern in the fall of 1994 about the impact
of releasing the inmates prior to the completion of their trials. As
well, and as has been noted, throughout the segregation review
documentation, the outstanding criminal charges are described as a
significant, and in some cases the only, reason for continued
segregation.
(d)Compliance with
segregation review procedural requirements
The record of segregation reviews does not
permit a determination of whether the procedural requirements were
met. Some of these deficiencies may be due to limitations in the
offender-management computer system employed during the material
period.
As a result of these deficiencies, it is
difficult to tell whether the requirements were not met, whether the
requirements were inadequately recorded, or whether the records were
inadequately maintained.
Examples of the foregoing include the
following:
- the dates on segregation review
documentation do not necessarily reflect the dates on which the
reviews or reports were compiled, and therefore do not permit any
determination as to whether things were done on a timely basis;
- the record generally does not indicate
the composition of the Segregation Review Board;
- the required record of whether or not the
inmate received the necessary documentation was not maintained;
- the records of notices being given to
inmates are not complete (and indeed, the evidence indicates that
until the summer of 1994, the prison was not adequately apprised
of the period of notice until this was brought to its attention by
the Correctional Investigator);
- the records of psychological assessments
as required every 30 days were incomplete (and again, the evidence
indicates that this requirement was not generally known until
drawn to the attention of the prison authorities by the
Correctional Investigator in the summer of 1994);
- the records of 30 day segregation reviews
are incomplete, so that it is not possible to tell whether the
required segregation reviews even took place.
2.8.3.5 The impact
of prolonged segregation
It is not surprising that the prolonged
deprivation and isolation associated with the segregation of these
inmates was seriously harmful to them. In October of 1994, the
prison's psychologists advised the prison staff of the psychological
ill effects being suffered by the women. Their report read:
Many of the symptoms currently
observed are typical effects of long-term isolation and sensory
deprivation. One thing which seems to have increased the deprivation
in this current situation is the new grillwork which has been put up
on the cells. The following symptoms have been observed:
- perceptual
distortions
- auditory and
visual hallucinations
- flashbacks
- increased
sensitivity and startle response
- concentration
difficulties and subsequent effect on school work
- emotional distress
due to the extreme boredom and monotony
- anxiety,
particularly associated with leaving the cell or seg area
- generalized
emotional lability at times
- fear that they are
"going crazy" or "losing their minds" because of limited interaction
with others which results in lack of external frames of reference
- low mood and
generalized sense of hopelessness
Part of this last symptom stems
from a lack of clear goals for them. They do not know what they have
to do to earn privileges or gain release from segregation. At the
present time there is no incentive for positive behaviour. Their
behaviour has been satisfactory since their return from RTC but has
not earned them additional privileges, nor have they been informed
that their satisfactory behaviour will result in any change of
status.
If the current situation
continues it will ultimately lead to some kind of crisis, including
violence, suicide and self-injury. They will become desperate enough
to use any means to assert some form of control of their lives. The
constant demands to segregation staff is related to needs for
external stimulation and some sense of control of their lives.
The segregation of these inmates continued
for between two and a half to three months after these observations
were made.
2.8.4 Findings
Guilty pleas
I say at the outset that the evidence does
not support a conclusion that there was ever a concerted attempt by
the Correctional Service to coerce the inmates into pleading guilty
to the criminal charges pending against them. I do not accept the
submissions put forward by counsel representing some of the inmates
that the guilty pleas should not be relied upon as they had been
coerced by the Correctional Service's handling of their clients'
segregation status. On the contrary, I am satisfied that these
guilty pleas which were entered in open court by parties who were
present and represented by counsel, indeed the same counsel who
acted for them before me, represented a genuine admission of guilt,
as well as an acceptance on the facts presented to the court in
support of the pleas.
Nonetheless, segregation, and the
segregation review process, and grievance responses may have
influenced the timing of the guilty pleas and gave an appearance of
coercion that the Service should avoid in the future.
Conditions of
segregation
The prolonged segregation of the inmates and
the conditions and management of their segregation was again, not in
accordance with law and policy, and was, in my opinion, a profound
failure of the custodial mandate of the Correctional Service. The
segregation was administrative in name only. In fact it was
punitive, and it was a form of punishment that courts would be
loathe to impose, so destructive are its consequences. I will return
to the broader issues raised by segregation later in this report.
In comparing the conditions of detention
under which these inmates were segregated in 1994 with the
conditions that prevail in the protective custody side of
segregation, the harsh and punitive aspect of their confinement is
blatant. It seems that efforts are made to ease the plight of
inmates who have to be segregated from the general population for
their own safety. Their cells are decorated with personal objects,
and their small unit contains visible signs of crafts, games and
playing cards, etc. It would seem that when a legal mandate is
clearly understood by prison authorities, and when they agree with
the intent and purpose of the law, they have no difficulty in
complying, not only with the letter, but with the spirit of the law.
The evidence in this case demonstrates that there was at the Prison
for Women little grasp of the legal framework governing the notion
of administrative segregation, and, in this case, little willingness
to manage it in a non-punitive fashion.
The most objectionable feature of this
lengthy detention in segregation was its indefiniteness. The absence
of any release plan in the early stages made it impossible for the
segregated inmates to determine when, and through what effort on
their part, they could bring an end to that ordeal. This indefinite
hardship would have the most demoralizing effect and, if for that
reason alone, there may well have to be a cap placed on all forms of
administrative segregation. I will return to this later.
If the segregation review process was
designed to prevent endless, indeterminate segregation, by imposing
a periodic burden on the prison authorities to justify further
detention, it proved to be a total failure in this case.
Essentially, the segregation review process reversed the burden and
assumed, in virtually every instance, that release had to be
justified. In many instances, the reasons advanced for maintaining
the segregation status would have been entirely unacceptable to
trigger segregation in the first place. The frequent reference to
the disposition of criminal charges as a landmark for de-segregation
indicated that a wrong test was being applied. Worse, and even if
not intended to do so, it could be objectively viewed as an
inducement for the inmates to expedite the disposition of charges
against them.
Eight or nine months of segregation, even in
conditions vastly superior to those which existed in this case, is a
significant departure from the standard terms and conditions of
imprisonment, and is only justifiable if explicitly permitted by
law. If it is not legally authorized, it disturbs the integrity of
the sentence. I will return below to the need to have proper avenues
of redress in such cases.
In this instance, this prolonged period of
segregation was aggravated by the conditions that prevailed in the
Segregation Unit at the Prison for Women at the time. The physical
layout of the cells created the worst possible environment. The
addition of the treadplate in front of the open bars created a
massive visual obstruction which rendered the cement interior of the
small cell darker and more claustrophobic. On the other hand, it did
not shelter each individual inmate from the noise generated in the
adjacent cells. For most of their time in segregation, these women
had virtually no access to any form of external stimuli. Apart from
the painful deprivation of human contact which segregation
necessarily entails, they had no access to television and were
limited for a time to a communal radio (only introduced in
September) and some sparse reading materials.
There was no effort on the part of the
prison to deal creatively with their reintegration. There were no
programs available to them, and they were left idle and alone in
circumstances that could only contribute to their further physical,
mental and emotional deterioration. The period of segregation was
not meant, in law, to serve as punishment for offences to which they
had not yet pleaded guilty. They eventually did plead guilty and
most of them were sentenced to additional time to be served
consecutively to their current sentences. The bitterness, resentment
and anger that this kind of treatment would generate in anyone who
still allows herself to feel anything, would greatly overweigh the
short-term benefits that their removal from the general population
could possibly produce.
These women were all eventually released in
the general population at the Prison for Women. Many are still
there. They could and should have been released earlier. To the
extent that the prison authorities, the Regional and National
Headquarters obviously did not share that view at the time, I think
that they were plainly wrong. There was no objective and independent
review of the segregation decisions that were being made at the
Prison for Women, and there should have been. In light of the
unprecedented trauma suffered by the staff in April of 1994, it was
clear that this institution required close monitoring, particularly
when entrusted with the wellbeing of the inmates perceived as
responsible for the April events.
If prolonged segregation in these deplorable
conditions is so common throughout the Correctional Service that it
failed to attract anyone's attention, then I would think that the
Service is delinquent in the way it discharges its legal mandate.
Daily
visits
With respect to the requirements of daily
visits to segregation by the institutional senior managers, the
Correctional Service concedes that the standards were not met
throughout the segregation period. Even accounting for the fact that
managers sometimes failed to sign in so that their visits may not
all have been recorded, it is clear from their own evidence that
they did not perform that important function as required. The
Commissioner indicated in his evidence that he was looking into this
matter.
Despite their testimony, I am not persuaded
that all senior managers appreciate the true importance of
discharging this function diligently. Furthermore, I do not share
the view of some that it can be appropriately delegated to the level
of Unit Manager. A segregated prisoner's daily access to the senior
management of the prison is a valuable method for redress of any
complaint, and, more importantly, is an important means of rendering
senior managers accountable for conditions in a segregation unit
which could otherwise escape their attention. Once again, this is an
area where I believe that, as the present record indicates,
voluntary compliance is unlikely, and where the absence of effective
sanctions or incentives is likely to render this right illusory.
Camera
monitoring
Electronic cell monitoring should never be
used as a matter of convenience. It removes entirely the little
privacy that is left in prison life and its use should only be
dictated by imminent security concerns, such as indications of
possible suicide.
Even in that case, camera surveillance
should not be used as a substitute for frequent rounds which permit
human contact and ensure an effective monitoring of the condition of
the inmate. Appropriate measures should be in place to ensure that
men do not observe women engaged in private activities in their
cells on camera, and that the inmates are aware of the procedures by
which this is effected.
2.9 The
Complaint and Grievance Procedure
2.9.1 The
law
The law
requires that inmates have access to an effective, fair and
expeditious grievance procedure.
Written
complaints by offenders are to be resolved informally if at all
possible. If complaints are not resolved to the satisfaction of the
inmate, she may grieve to the institutional head and may appeal that
decision to the head of the Region and in turn, to the Commissioner.
2.9.2 Correctional
Service policy
The Correctional Service policy as set out
in the Commissioner's Directive requires that complaints and
grievances be responded to within five to ten working days,
depending upon the stage of the procedure.
There is nothing in the CCRA or the Regulations which would
authorize the Commissioner to delegate his responsibilities for
responding to grievances directed to his office. However, he and the
Correctional Service take the position that s.24(4) of the Interpretation Act authorizes him to
delegate this responsibility to a person who reports directly to
him, even if that person is not the Deputy Commissioner. During the
period of the events under investigation, he did so. None of the
grievances that were directed to him with respect to the matters
under investigation were brought to his attention.
The legal and policy provisions governing
the complaint and grievance process are set out below, as is s.24(4)
of the Interpretation Act, R.S.C. 1985,
c.I-21.
UN STANDARD
MINIMUM RULES FOR THE TREATMENT OF PRISONERS
UN RULE
35
35(1)Every prisoner on admission shall be
provided with written information about the regulations governing
the treatment of prisoners of his category, the disciplinary
requirements of the institution, the authorized methods of seeking
information and making complaints, and all such other matters as are
necessary to enable him to understand both his rights and his
obligations and to adapt himself to the life of the institution.
(2)If a prisoner is illiterate, the
aforesaid information shall be conveyed to him orally.
UN RULE
36
36(1)Every prisoner shall have the
opportunity each week day of making requests or complaints to the
director of the institution or the officer authorized to represent
him.
(2)It shall be possible to make requests or
complaints to the inspector of prisons during his inspection. The
prisoner shall have the opportunity to talk to the inspector or to
any other inspecting officer without the director or other members
of the staff being present.
(3)Every prisoner shall be allowed to make a
request or complaint, without censorship as to substance but in
proper form, to the central prison administration, the judicial
authority or other proper authorities through approved channels.
(4)Unless it is evidently frivolous or
groundless, every request or complaint shall be promptly dealt with
and replied to without undue delay.
CCRA: STATUTE
4.The principles that shall guide the
Service in achieving the purpose referred to in section 3 are
(g)that correctional decisions be made in a
forthright and fair manner, with access by the offender to an
effective grievance procedure;
90.There shall be a procedure for fairly and
expeditiously resolving offenders' grievances on matters within the
jurisdiction of the Commissioner, and the procedure shall operate in
accordance with the regulations made under paragraph 96(u).
91.Every offender shall have complete access
to the offender grievance procedure without negative consequences.
CCRA:
REGULATIONS
74(1)Where an offender is dissatisfied with
an action or a decision by a staff member, the offender may submit a
written complaint, preferably in the form provided by the Service,
to the supervisor of that staff member.
(2)Where a complaint is submitted pursuant
to subsection (1), every effort shall be made by staff members and
the offender to resolve the matter informally through discussion.
(3)Subject to subsections (4) and (5), a
supervisor shall review a complaint and give the offender a copy of
the supervisor's decision as soon as practicable after the offender
submits the complaint.
(4)A supervisor may refuse to review a
complaint submitted pursuant to subsection (1) where, in the opinion
of the supervisor, the complaint is frivolous or vexatious or is not
made in good faith.
(5)Where a supervisor refuses to review a
complaint pursuant to subsection (4), the supervisor shall give the
offender a copy of the supervisor's decision, including the reasons
for the decision, as soon as practicable after the offender submits
the complaint.
75.Where a supervisor refuses to review a
complaint pursuant to subsection 74(4) or where an offender is not
satisfied with the decision of a supervisor referred to in
subsection 74(3), the offender may submit a written grievance,
preferably in the form provided by the Service,
(a)to the institutional head or
to the director of the parole district, as the case may be; or
(b)where the institutional head
or director is the subject of the grievance, to the head of the
region.
78.The person who is reviewing a grievance
pursuant to section 75 shall give the offender a copy of the
person's decision as soon as practicable after the offender submits
the grievance.
80(1)Where an offender is not satisfied with
a decision of the institutional head or director of the parole
district respecting the offender's grievance, the offender may
appeal the decision to the head of the region.
(2)Where an offender is not satisfied with
the decision of the head of the region respecting the offender's
grievance, the offender may appeal the decision to the Commissioner.
(3)The head of the region or the
Commissioner, as the case may be, shall give the offender a copy of
the head of the region's or Commissioner's decision, including the
reasons for the decision, as soon as practicable after the offender
submits an appeal.
81(1)Where an offender decides to pursue a
legal remedy for the offender's complaint or grievance in addition
to the complaint and grievance procedure referred to in these
Regulations, the review of the complaint or grievance pursuant to
these Regulations shall be deferred until a decision on the
alternate remedy is rendered or the offender decides to abandon the
alternate remedy.
(2)Where the review of a complaint or
grievance is deferred pursuant to subsection (1), the person who is
reviewing the complaint or grievance shall give the offender written
notice of the decision to defer the review.
INTERPRETATION
ACT, R.S.C. 1985, c.I-21
24(4)Words directing or empowering any
public officer, other than a minister of the Crown, to do any act or
thing, or otherwise applying to the public officer by his name of
office, include his successors in the office and his or their
deputy.
COMMISSIONER'S
DIRECTIVES
CD081
- INMATE COMPLAINTS AND GRIEVANCES
POLICY OBJECTIVE
1.To ensure that inmate complaints and
grievances are dealt with promptly and fairly at the lowest level
possible in a manner that is consistent with the spirit and intent
of the Mission Document.
PRINCIPLES OF THE REDRESS SYSTEM
2.The following principles underlie the
inmate redress system:
a.the duty to act fairly will
be respected in the rendering of decisions on inmate complaints and
grievances;
b.staff and inmates are
expected to make every effort to discuss and resolve problems before
they are pursued through the formal complaint and grievance process;
c.active participation of staff
and inmates in the resolution of complaints and grievances is
encouraged.
GENERAL CONSIDERATIONS
4.Inmates may submit a complaint or
grievance on matters which they consider to have a significant
impact on their life.
5.Confidentiality of complaints and
grievances shall be preserved to the greatest possible extent.
6.Complaints and grievances of a sensitive
nature or considered urgent, shall be brought to the attention of
the institutional head by the grievance coordinator.
TIMELINESS
7.Staff shall ensure that inmates are
provided with timely and complete responses to issues raised in
complaints and grievances.
8.If the institutional head, the Deputy
Commissioner of the region or the Commissioner consider that more
time is necessary to deal adequately with a complaint or grievance,
the inmate must be informed in writing of the reasons and the time
when a decision may be expected.
ALTERNATIVE OUTSIDE REMEDIES
12.Should a complaint or grievance be
brought forward by an inmate and should it be learned that the
inmate is also pursuing an alternative legal remedy of any kind
outside the institution, the reply to the complaint should be
deferred until the decision on the alternative remedy is rendered or
the alternative remedy is abandoned.
13.The inmate will be informed in writing of
the decision to defer the complaint or the grievance.
14.Once the outside decision is made, the
Service's decision-maker, taking into account both the level of
appeal and the nature of the decision, will indicate whether or not
a reply will be provided to the complaint or grievance of the
inmate.
COMPLAINTS
15.Inmates shall be encouraged and staff
members shall be prepared to deal with complaints in an informal,
proactive manner and in an effort to resolve problems.
16.If an inmate is unable to resolve a
problem, through discussions with staff, or chooses not to do so,
the inmate may file a written complaint on a matter which:
a.comes under the jurisdiction
of the Commissioner; and
b.has caused a problem to the
complainant within the past month.
18.Staff and inmates must participate in
interviews to ensure that complaints are thoroughly reviewed unless
there are unusual circumstances or the inmate refuses.
19.Written complaints must be responded
to within ten (10) working days by the responsible supervisor.
20.The supervisor may refuse to review a
complaint where, in his or her opinion, the complaint is frivolous
or vexatious or is not made in good faith.
21.Where a supervisor refuses to review a
complaint, he or she shall give the inmate a copy of the decision,
including the reasons for the decision, as soon as practicable after
the inmate submits the complaint.
22.Where a supervisor refuses to review a
complaint or where an inmate is not satisfied with the decision of a
supervisor referred to in paragraph 20, the inmate may submit a
written grievance, preferably in the form provided by the Service:
a.to the institutional head or
the Director of the parole district as appropriate; or
b.where the institutional head
or director is the subject of the grievance, to the Deputy
Commissioner of the Region.
GRIEVANCES TO THE INSTITUTIONAL LEVEL
23.A grievance must be submitted within ten
(10) working days of receipt of the reply to the complaint.
32.The recommendation(s) of the Inmate
Grievance Committee should be forwarded to the institutional head
within five (5) working days following the hearing of the committee.
33.In institutions which do not have an
Inmate Grievance Committee, grievances will be forwarded directly to
the institutional head.
34.The institutional head's decision must be
rendered and the inmate informed in writing of the decision and
reasons for the decision no later than five (5) working days after
the institutional head has received the recommendation(s) of the
Inmate Grievance Committee. [This optional
committee did not exist at the Prison for Women at the time of these
events.] In the event that the grievance committee hearing does
not occur, the institutional head will have five (5) working days to
respond to the grievance.
GRIEVANCES TO THE REGIONAL LEVEL
38.An inmate who is not satisfied with the
institutional head's decision may forward the grievance to the
Deputy Commissioner of the region, through the institutional
grievance coordinator, within ten (10) working days after receipt of
the decision. An inmate may also grieve in cases where action is not
being taken in accordance with the institutional head's decision.
39.Acknowledgement of receipt will be
provided to the inmate.
40.The decision of the Deputy Commissioner
of the region shall be rendered within ten (10) working days of
receipt of the grievance and the inmate informed in writing of the
decision and reasons for the decision.
GRIEVANCES TO THE COMMISSIONER
41.Paragraphs 38, 39, and 40 also apply to
grievances submitted to the Commissioner.
RECORDS
47.Records of complaints or grievances shall
be kept separate from the inmate's file.
48.A copy of the grievance and other
pertinent documents shall be kept after the rendering of the final
decision, at the institution and the region for two (2) years and
for five (5) years at National Headquarters. The documents shall
then be disposed of through Records Management.
REPORTS
49.Institutions and Regional Headquarters
shall submit to National Headquarters monthly reports on complaints
and grievances.
2.9.3 What
occurred
It is striking that virtually all of the
issues that have arisen in the course of this inquiry were raised in
the first instance by the inmates in complaints, grievances, and in
some cases, in letters addressed to senior Correctional Service
officials.
Complaints and grievances were registered
with respect to: the use of force and the use of mace on April 22nd;
decontamination procedures; access to counsel; the IERT attendance
and associated strip searches; the body cavity searches; conditions
in segregation including the deprivation of basic amenities; the
presence in the Segregation Unit of staff involved in aspects of the
April 22nd incident; the transfer to the Regional Treatment
Centre including the procedural propriety of the transfer and the
male environment into which the inmates were transferred; daily
exercise; daily visits; the use of restraint equipment; camera
surveillance; the treadplate erected in the Segregation Unit; the
absence of programs in segregation; and the duration of segregation.
Some of these grievances were never answered
at all. Those that were answered were almost always answered late,
in some cases several months after the answers were due. In a number
of instances, the grievances were responded to by an inappropriate
person: either someone not at the appropriate level to respond, or
someone who could not be expected to have access to the relevant
facts. There is no system to effectively prioritize those grievances
where the only effective response would be one received on an urgent
basis.
However, by far the most troubling aspect of
the responses to these grievances, which raised important issues of
fundamental inmate rights, was the number of times in which the
responses failed to deal properly with the substance of the issues
raised. In some cases, the responses failed to appreciate the legal
significance of the issues raised by the inmates. In some cases, the
responses indicated a failure to properly ascertain the underlying
facts. In many instances, one was left with the impression that an
inmate's version of events was treated as inherently unreliable, and
that to grant a grievance was seen as admitting defeat on the part
of the Correctional Service.
The following are by way of illustration
only, of the foregoing.
2.9.3.1 Grievances
with respect to the IERT
Virtually all inmates grieved the IERT strip
search procedures.
On July 31, 1994, inmate Twins submitted a
complaint which read:
On April 26/94. The
Institutional Emergency Response Team was called in the seg unit at
P4W. As the Response Team entered the seg unit, they proceeded to my
cell #6 banging their shields against the bars of my cell to
intimidate me. Then they entered my cell ordering me to kneel down
slowly to the floor then the restraints were placed on me. After
they ripped my clothes off PJ's top, & bottom. They ordered me
to walk backwards slowly to the back of the range in the corner
naked. I asked if I could have a gown to cover my private parts up
because three men contractors just came in to the seg unit to remove
my bed in my cell. I got no response from Emergency Response Team.
The only response was Marg Kelahan and the Head Decision Makers
standing at the PC side of seg unit laughing at me. Nobody attempted
to cover me up. I have never felt humiliated, I have been sexually
abused and physically as a child.
This complaint was answered by the Assistant
Deputy Regional Commissioner, two and half weeks late. The response
read:
The members of the
investigating team have been contacted and they have advised that
the conduct of the members of the Emergency Response Team was
professional in every sense. This was verified by the videotapes of
the process. I have also been informed that you were informed of the
process to remove you from your cell before the Emergency Response
Team arrived. The circumstances of 26 April, 1994 warranted your
removal for the security of the institution. There is no evidence to
suggest that you were sexually assaulted by the Emergency Response
Team. In fact, there is no indication that you were mistreated in
any manner during the transfer.
The decision of the Warden of
the institution to call in the Emergency Response Team was
justified. As the Warden of the institution, she made a decision
which was within her rights to make. No further action will be
taken.
Given the above, your complaint
is denied.
Insofar as this response suggests that the
Assistant Deputy Commissioner had viewed the videotapes, it is
wrong. Insofar as it says that Ms. Twins was informed of the process
to remove her from her cell before the IERT arrived, it is wrong.
Finally, and most importantly, the response does not direct itself
at all to the central question which is raised by Ms. Twins'
complaint, namely the legality and propriety of the strip search,
and the manner in which it was conducted.
Ms. Twins pursued this grievance to the
level of the Commissioner. The response was given, 25 days late, by
a member of the Commissioner's office to whom he had delegated the
task of responding to grievances. The response was:
As you know, the entire
incident was taped by the IERT and the video has been reviewed by
the Investigation Board set up to look into the matter. Their
findings indicate that the members of the Emergency Response Team
carried out their duties in a professional manner, and did not
behave inappropriately at any time during the course of the cell
extractions. There is no evidence on the tape to substantiate your
claim of sexual assault and improper conduct by the male staff. As
well, I feel the Warden acted within her authority to call in the
IERT. She was faced with a volatile situation which threatened the
security of the institution and immediate action was warranted. This
grievance is therefore denied.
Neither the author of this response, nor
anyone else at National Headquarters viewed the video before
responding to inmate Twins' grievance. Insofar as the response
suggests the Board of Investigation saw the entire video, it is
wrong. Once again, the response fails to address the central issue
of the legality and propriety of the strip search and the manner in
which it was conducted.
Inmate Shea also filed a complaint with
respect to the IERT process which read:
I am complaing about the
Response Rescue Team forcing me (not physically) to remove my
clothing. If I did not take my clothes off they would have ripped
them off so I was scared to death of these men, because these men
were in other cells before mine and they physically ripped the
clothes off women and were on there way to my cell. I have been
sexually abused all my life and this brought back those terrible
times. I never been so humiliated in my life for 6 men to be allowed
to do this to me. There was no female officers present at the time.
Mary Cassidy who ordered it sat back and watched it happen to women
in her prison. I have never been so damn humiliated... First I would
like an explination (good one) how anybody in there right mind would
order such a sick, horrifying act against women. I would like some
immediate action taken against these men because I felt like I was a
vulnerable little, helpless girl waiting to get raped. I would never
want another woman to go through what I experienced here at P4W.
The response to this complaint, over a month
late, wrongly indicated that two females were specifically assigned
to strip female inmates, that no segregation inmate was stripped by
a male, and that the inmates removed their own clothing without
assistance from male or female officers. Again, the response failed
totally to deal with the central issue of the legality and propriety
of the strip search.
Ms. Shea pursued her complaint by way of
first level grievance within the institution, urging a review of the
video, and then by way of grievance to the Regional Headquarters. In
her grievance to the Regional Headquarters, she repeated her
admonition already given to the institution to look at the video of
the strip search:
Again, I do not agree with the
"Director's response to inmate" Females gards officers or otherwise,
were not with the male (I.E.R.T.) and the males did all the
strip-searches without the assistance of a female staff present.
They did not I say "perfrom their role with professionalism". The
video will surely open your eyes and show you that only males were
present at all times. There were definitely a few women (inmates)
actully stripped naked by these so called professionals (IERT). And
further more the person who ordered this to be done is just as
unprofessional as the IERT themselves in my opinion and I'm sure in
anyone's opinion that is human.
Two and a half months later, in late
October, 1994, Ms. Shea was advised that her grievance would be
deferred until the video had been returned from the court. As noted
previously, the Correctional Service took no steps at all to obtain
the return of that video until December of 1994.
Ms. Shea took her grievance to the level of
the Commissioner. Two and a half months after the grievance reached
the National Headquarters, and eight months after the initial
complaint, a member of the Commissioner's office responded:
As you know, the entire
incident was taped by the IERT and the video has been reviewed by a
Board of Investigation set up by the Commissioner. Their findings
indicate that the members of the emergency response team carried out
their duties in a professional manner, and they did not behave
inappropriately at any time during the course of the cell
extractions. There is no evidence on the tape of improper conduct by
the male staff.
As well, I feel the Warden
acted within her authority to call in the IERT. She was faced with
an extremely volatile situation which threatened the security of the
institution and immediate action was warranted.
Your grievance is therefore
denied.
This response was prepared on February 3,
1995. That was eight days after the Commissioner, and indeed the
author of the response, had finally viewed the IERT video. As has
been noted, the Commissioner's opinion was that what he viewed on
the video was very wrong. There is no such indication in the
response written on his behalf to the inmate's grievance. The
Commissioner testified that if he had seen the grievance, he
"probably" would have responded differently.
2.9.3.2 The
transfer process
Ms. Twins also grieved the question of
whether she had received proper notification of her transfer to the
Regional Treatment Centre. Ultimately, she pursued that grievance to
the level of the Commissioner. The Director of the Federally
Sentenced Women Program analyzed Ms. Twins' grievance and
concluded that she had indeed received inadequate notice of her
transfer. This grievance was responded to on July 29, 1994, 34 days
late, 17 days after the court had ordered Ms. Twins' return to the
Prison for Women, and 15 days after she had in fact been returned.
Her grievance was dismissed on the basis that because she had been
returned to the Prison for Women, no further action was required. No
acknowledgement was given that her original complaint was
meritorious, nor was any other corrective action taken.
Ms. Bettencourt and Ms. Young grieved the
transfer on the basis that it was not appropriate to send someone
who had been sexually abused to a male facility which housed sexual
offenders. Their grievances were dismissed at the lower levels and
by the time of the Commissioner level response, they had been
returned to the Prison for Women and the merit of their grievance
was never addressed. The response merely stated that no further
action was required.
2.9.3.3 Duration
and conditions in segregation
On May 19, 1994, Dianne Shea filed a
complaint with respect to the conditions in segregation. It read:
No writing, have to beg for
phone calls, not allowed to keep soap, no exercise in 28 days, no
clean blankets in 28 days, no lighter or matches, no bed, no sheets,
no pillows, not properly clothed, no canteen.
Give us back our rights as
inmates. Open your damn eyes and take a look at how I'm living here.
Then you just might realize that the Humane Society treats their
animals better than way youre treating a human being. Would like
these poor conditions improved. If not I guess it's on to grievance
forms.
Almost two months later, she had not
received a response to her complaint and she pursued the grievance
to the Regional Deputy Commissioner.
She then received a response to her original
complaint from within the prison which read:
1. The conditions that inmates
on B [dissociation] side of segregation were living under was a
direct result of further assaults and attempted assaults subsequent
to the assaults that took place on April 22-94.
2. Numerous officers had
unknown liquid thrown on them by B side inmates.
3. Therefore all items which
could have used as weapons against staff, including the beds were
removed from B side unit of segregation.
4. Lighters and matches were
removed because of numerous fires had been set by inmates.
5. Security blankets and gowns
were provided to prevent self-injury behaviour.
6. The action taken by
management and security was to restore and maintain the good order
of the institution and reduce the risk of injury to staff and
inmates.
7. Therefore your complaint is
denied.
As discussed in the portion of this report
dealing with the legal rights of inmates in segregation, this
response indicates a profound misunderstanding of the legal
entitlements raised by Ms. Shea's complaint. Moreover, the
nature of Ms. Shea's complaint is such that the only effective
response would be a timely response. This response failed in that
regard as well.
The record indicates no response to Ms.
Shea's grievance to the Regional Headquarters.
A similar complaint delivered by Patricia
Emsley on May 19th received a similar institutional response.
Following her return to the Prison for Women
from the Regional Treatment Centre, Paula Bettencourt put in a
complaint about the absence of programs in segregation, which was
denied. She pursued her grievance to the first level. On August 15,
1994, almost four months after the commencement of Ms. Bettencourt's
segregation, the Warden responded with an apology that she had not
been able to interview Ms. Bettencourt, and with the suggestion that
Ms. Bettencourt give some thought to her program needs and some
consideration to what might be offered in segregation.
This response ignores the legal and policy
requirements with respect to the conditions in segregation, and the
Commissioner's Directive which specifically imposes the obligation
to provide appropriate programming on the Warden. The Warden could
easily have interviewed Ms. Bettencourt had she made the daily
visits that she was required to make during that time.
Ms. Bettencourt took her grievance to the
Regional Deputy Commissioner. The grievance read:
I put in a complaint stating
that I've been in segragation for 4 months, with no programmes. The
C.D.'s state that they are supposed to make every effort to place me
back into population, and that segragation is not to be used as a
form of punishment. But so far there has been no talk of gradual
release, or any form of release for that matter. I feel as if I was
placed in here, and forgotten about. I put in a complaint about my
situation, and also a first leval grievance. Donna Morran stated on
my complaint form that I just arrived back from R.T.C. as therefore
I've only been in seg a few weeks. My sentiments are that if I'm
being looked at as a new admit, than I shouldn't be in segragation,
because new admits or returnees to P.4.W. don't go to segragation
upon admitten's. My leval one grievance addressed by Mary Cassidy,
stated that they are looking at programmes to be done in
segragation; niether stated how long I'd be in seg or that they are
looking at gradual releasing me. I don't feel as being locked up in
segregation is good for my mental and physical state.
Approximately a month later, the Assistant
Regional Deputy Commissioner denied Ms. Bettencourt's
grievance. The reasons given were as follows:
You have been placed in
segregation for the security of the institution. Until such time as
the concerns that placed you there have been resolved, to the
satisfaction of the Warden, you will remain in segregation. As for
your program involvement, I would encourage you to work closely with
your present case management team who are there to assist you with
your program and treatment needs.
Insofar as this response fails to critically
assess whether the requirements for continued segregation under the
Act are met, it exhibits the same
failures as the segregation review process. It also ignores the
obligation of the institution to provide proper programming in
segregation and a plan to achieve the inmate's release.
Ms. Bettencourt pursued her grievance to the
Commissioner. She said:
I am currently in seg at Prison
for Women. I have been in seg for 5 months. The C.D's state that
they are supposed to make efforts to place me back in population,
and that segregation is not to be used as a form of punishment. But
so far there has been no mention of any form of release. All my
segregation reports have been positive, and my behavior
satisfactory. I don't feel that residing in segregation is good for
my mental or physical state of mind. I am finding it rather
difficult to be around people, when I go to the hospital or anywhere
out of the unite, I get paranoide and want to run back quickly. I
have had a few medical problems caused by stress. I can't function
on any one thing for any length of time. They say we have to do an
anger management programe, before our release. This has been
mentioned about two months ago, but nobody knows when we are to
start these programes. I am still going to court on charges in the
April 22 incident. I am being punished physically and mentally. I
think five months in segregation is long enough for them to start
looking at some kind of release for me.
Almost two months later, the response from
the Commissioner's office (which again he did not see) read:
Your grievance... has been
reviewed at the third level. I apologize for the delay in
responding.
The decision to place you in
segregation was based primarily on your involvement in a very
serious disturbance at the institution in April of this year. Given
the level of violence which occurred, the requirement to deal with
your programming needs must be balanced with the necessity to ensure
the safety of staff and security of the institution as a whole. Risk
management remains an integral component of any release plan.
Although six months have passed
since your admission into segregation, almost three months of that
time was spent at the Regional Treatment Centre. While we
acknowledge that little was done in the first few months of your
segregation at Prison for Women, efforts are now underway to remedy
the situation. You have now been provided with a self study program
and the cells are being retrofitted to allow for additional
activities in the segregation unit.
I am confident that these
measures will lead to a release program which will benefit your
correctional plan and take into account the physical and mental
health implications of a long term segregation period.
Accordingly, this grievance is denied.
This response exhibits the same failings as
the response at the Regional level.
2.9.3.4 Access to
counsel
On May 12, 1994, Ms. Young filed a complaint
with respect to the denial of access to counsel upon admission to
segregation:
When I was put in segregation
it says in the CD's that we are intilled to a lawyer's phone call.
Now this is by law which the institution failed to comply with they
said we still can't make lawyer phone calls. I request when put in
seg we get our lawyer phone calls and also the institution abide by
the law just like they expect us to.
The institution responded denying the
complaint on the basis of the incorrect understanding of the law
which has already been described, namely an assumption that access
to legal counsel could be denied until the inmates' behaviour
merited access.
Ms. Young pursued her grievance to the
Regional Deputy Commissioner:
Re my complaint 94/05/26. There
was nothing going on in seg. They totally refused to give me a call
to my lawyer. I know if I was doing all these things thats on the
complaint why wasn't I charged? I am intitled to make a lawyer's
phone call it's stated in the CD's.
There is no record of a response to this
grievance.
As has already been described, the
Commissioner has delegated his responsibility to respond to
grievances directed to him, and there is no process by which
grievances which raise the important issues that were raised in this
case are brought to his attention. However, on September 3,
1994, Ellen Young wrote directly to the Commissioner:
Dear Mr. John Edwards,
My name is Ellen Young, and I'm
at the Prison for Women in segregation. I am one of the girls
charged in the incident on April 22/94.
I am writing to let you know
that us 6 women are still in segregation. Mr. Edwards the
institution has plans for us to do anger management and cognative
skills before being released from segregation. Myself and some of
the other women have certificates for completing and passing these
courses.
We can all sit down and explain
to anyone what we've learned in these courses, you must agree that
these group's only work if, one chooses to use the skills that
they've learned.
These program's take 6 month's
and they are not releasing us from segregation until they are
completed.
Being in segregation for such a
long period of time is mentally dammaging. We don't even like
walking in the hall's, because when people come near us we get very
jumpy, withdrawn, nervous and also very scared because how it's
effected us being in here.
In the Commissioner's
Directives it states that they are suppose to find ways of releasing
us not way's of keeping us here.
Also it states in the CD's that
segregation isn't supposed to be used as a form of punishment, and
it is, because all of us women have been doing exceptionally well,
and have been for many month's.
Mr. Edwards, we go to jail for
breaking law, you have to ask yourself, are they really setting a
good example for us by snubbing their noses at the law?
The law was made for everyone,
and also the Commisioner's Directives are made for all of us within
the institution, to abide by them at all times.
Can you "please" urgently take
action, for this is effecting us mentally. We would like our rights.
If you could just look at the Commissioner's Directives it will show
you that our right's are to be released from segregation.
Sir, also the judge ordered us
back to the Prison for Women, because at R.T.C. they cannot release
female's into an all male institution population. Thank you
considerably for your precious time in this matter.
Sincerely yours,
Ellen Young
P.S. Could you please write me
a letter of some kind so I'll know you received my letter.
Unfortunately, when he testified, the
Commissioner was not aware of this letter. He had not seen it and
did not think that it had been answered. In fact, someone in Mr.
Edwards' office did respond to the letter, though not until November
8, 1994. It is evident from the findings of this Commission that
this letter, like all the grievances and complaints from inmates,
and warnings from others, did not cause the Correctional Service to
focus seriously on the extent to which its treatment of these
inmates was in breach of their legal rights, and wrong.
Indeed, when it was suggested to the
Commissioner that ongoing breaches of the law by the Correctional
Service would send the wrong message to inmates about the importance
of complying with the law, he expressed doubt that this particular
group of inmates would appreciate the "delicacy" of such a
suggestion. Perhaps if he had read the grievances and letters that
this group of inmates directed to him, he would have concluded
otherwise.
2.9.4 Findings
The Correctional Investigator has pointed
out for years the chronic untimeliness of the response to the
complaints and grievance process in the Correctional Service. In
reply, the Correctional Service now takes the position that it has
set for itself unrealistic timeframes within which to respond, and
that these will have to be readjusted. I agree that grievances
should be dealt with within a timeframe that will allow an adequate
and informative response. The evidence I have heard discloses that
lengthy delays produce often neither.
As revealed in this case, the process is
highly bureaucratic. Particularly at the appellate level, both
Regional and National, responsibility for the disposition of
grievances is often given to people with neither the knowledge nor
the means of acquiring it and, worse, with no real authority to
remedy the problem should they be prepared to acknowledge its
existence. This could be redressed by the current initiative to
promote lower level resolution. However, this strategy will be
equally ineffective unless there is a profound change in the mindset
of the entire organization. At present, it would seem that the
admission of error is perceived as an admission of defeat by the
Correctional Service. In that climate, no internal method of dispute
resolution will succeed.
I am deeply troubled about the guidance that
is given within the Correctional Service to the disposition of
complaints and grievances which allege violations of the law, in
light of the Commissioner's evidence on this point. Apart from
anything else, the responses given to the inmates' grievances must
have been extremely demoralizing.
2.10 The
Correctional Investigator
2.10.1 The
law
The law and policy governing the activities
of the Correctional Investigator are set out below.
CCRA:
STATUTE
158.The Governor in Council may appoint a
person to be known as the Correctional Investigator of Canada.
167(1)It is the function of the Correctional
Investigator to conduct investigations into the problems of
offenders related to decisions, recommendations, acts or omissions
of the Commissioner or any person under the control and management
of, or performing services for or on behalf of, the Commissioner
that affect offenders either individually or as a group.
(2)In performing the function referred to in
subsection (1), the Correctional Investigator may not investigate
(a)any decision, recommendation, act or
omission of
(i)the National Parole Board in
the exercise of its exclusive jurisdiction under this Act, or
(ii)any provincial parole board
in the exercise of its exclusive jurisdiction;
(b)any problem of an offender related to the
offender's confinement in a provincial correctional facility,
whether or not the confinement is pursuant to an agreement between
the federal government and the government of the province in which
the provincial correctional facility is located; and
(c)any decision, recommendation, act or
omission of an official of a province supervising, pursuant to an
agreement between the federal government and the government of the
province, an offender on temporary absence, parole, statutory
release subject to supervision or mandatory supervision where the
matter has been, is being or is going to be investigated by an
ombudsman of that province.
(3)Notwithstanding paragraph (2)(b), the
Correctional Investigator may, in any province that has not
appointed a provincial parole board, investigate the problems of
offenders confined in provincial correctional facilities in that
province related to the preparation of cases of parole by any person
under the control and management of, or performing services for or
on behalf of, the Commissioner.
169.The Correctional Investigator shall
maintain a program of communicating information to offenders
concerning
(a)the function of the
Correctional Investigator;
(b)the circumstances under
which an investigation may be commenced by the Correctional
Investigator; and
(c)the independence of the
Correctional Investigator.
170(1)The Correctional Investigator may
commence an investigation
(a)on the receipt of a
complaint by or on behalf of an offender;
(b)at the request of the
Minister; or
(c)on the initiative of the
Correctional Investigator.
(2)The Correctional Investigator has full
discretion as to
(a)whether an investigation
should be conducted in relation to any particular complaint or
request;
(b)how every investigation is
to be carried out; and
(c)whether any investigation should be
terminated before its completion.
172(1)In the course of an investigation, the
Correctional Investigator may require any person
(a)to furnish any information
that, in the opinion of the Correctional Investigator, the person
may be able to furnish in relation to the matter being investigated;
and
(b)subject to subsection (2),
to produce, for examination by the Correctional Investigator, any
document, paper or thing that, in the opinion of the Correctional
Investigator, relates to the matter being investigated and that may
be in the possession or under the control of that person.
(2)The Correctional Investigator shall
return any document, paper or thing produced pursuant to paragraph
(1)(b) to the person who produced it within ten days after a request
therefor is made to the Correctional Investigator, but nothing in
this subsection precludes the Correctional Investigator from again
requiring its production in accordance with paragraph (1)(b).
(3)The Correctional Investigator may make
copies of any document, paper or thing produced pursuant to
paragraph (1)(b).
173(1)In the course of an investigation, the
Correctional Investigator may summon and examine on oath
(a)where the investigation is
in relation to a complaint, the complainant, and
(b)any person who, in the
opinion of the Correctional Investigator, is able to furnish any
information relating to the matter being investigated,
and for that purpose may administer an oath.
(2)Where a person is summoned pursuant
to subsection (1), that person may be represented by counsel during
the examination in respect of which the person is summoned.
174.For the purposes of this Part, the
Correctional Investigator may, on satisfying any applicable security
requirements, at any time enter any premises occupied by or under
the control and management of the Commissioner and inspect the
premises and carry out therein any investigation or inspection.
177.Where, after conducting an
investigation, the Correctional Investigator determines that a
problem referred to in section 167 exists in relation to one or more
offenders, the Correctional Investigator shall inform
(a)the Commissioner, or
(b)where the problem arises out
of the exercise of a power delegated by the Chairperson of the
National Parole Board to a person under the control and management
of the Commissioner, the Commissioner and the Chairperson of the
National Parole Board
of the problem and the particulars thereof.
178(1)Where, after conducting an
investigation, the Correctional Investigator is of the opinion that
the decision, recommendation, act or omission to which a problem
referred to in section 167 relates
(a)appears to have been
contrary to law or to an established policy,
(b)was unreasonable, unjust,
oppressive or improperly discriminatory, or was in accordance with a
rule of law or a provision of any Act or a practice or policy that
is or may be unreasonable, unjust, oppressive or improperly
discriminatory, or
(c)was based wholly or partly
on a mistake of law or fact,
the Correctional Investigator shall indicate
that opinion, and the reasons therefor, when informing the
Commissioner, or the Commissioner and the Chairperson of the
National Parole Board, as the case may be, of the problem.
(2)Where, after conducting an investigation,
the Correctional Investigator is of the opinion that in the making
of the decision or recommendation, or in the act or omission, to
which a problem referred to in section 167 relates a discretionary
power has been exercised
(a)for an improper purpose,
(b)on irrelevant grounds,
(c)on the taking into account
of irrelevant considerations, or
(d)without reasons having been
given,
the Correctional Investigator shall indicate
that opinion, and the reasons therefor, when informing the
Commissioner, or the Commissioner and the Chairperson of the
National Parole Board, as the case may be, of the problem.
182.Subject to this Part, the Correctional
Investigator and every person acting on behalf or under the
direction of the Correctional Investigator shall not disclose any
information that comes to their knowledge in the exercise of their
powers or the performance of their functions and duties under this
Part.
183(1)Subject to subsection (2), the
Correctional Investigator may disclose or may authorize any person
acting on behalf or under the direction of the Correctional
Investigator to disclose information
(a)that, in the opinion of the Correctional
Investigator, is necessary to
(i)carry out an investigation,
or
(ii)establish the grounds for
findings and recommendations made under this Part; or
(b)in the course of a prosecution for an
offence under this Part or a prosecution for an offence under
section 131 (perjury) of the Criminal Code in respect of a statement
made under this Part.
189.The Correctional Investigator or any
person acting on behalf or under the direction of the Correctional
Investigator is not a competent or compellable witness in respect of
any matter coming to the knowledge of the Correctional Investigator
or that person in the course of the exercise or performance or
purported exercise or performance of any function, power or duty of
the Correctional Investigator, in any proceedings other than a
prosecution for an offence under this Part or a prosecution for an
offence under section 131 (perjury) of the Criminal Code in respect
of a statement made under this Part.
191. Every person who
(a)without lawful justification
or excuse, wilfully obstructs, hinders or resists the Correctional
Investigator or any other person in the exercise or performance of
the function, powers or duties of the Correctional Investigator,
(b)without lawful justification
or excuse, refuses or wilfully fails to comply with any lawful
requirement of the Correctional Investigator or any other person
under this Part, or
(c)wilfully makes any false
statement to or misleads or attempts to mislead the Correctional
Investigator or any other person in the exercise or performance of
the function, powers or duties of the Correctional Investigator
is guilty of an offence punishable on
summary conviction and liable to a fine not exceeding two thousand
dollars.
192.The Correctional Investigator shall,
within three months after the end of each fiscal year, submit to the
Minister a report of the activities of the office of the
Correctional Investigator during that year, and the Minister shall
cause every such report to be laid before each House of Parliament
on any of the first thirty days on which that House is sitting after
the day on which the Minister receives it.
193.The Correctional Investigator may, at
any time, make a special report to the Minister referring to and
commenting on any matter within the scope of the function, powers
and duties of the Correctional Investigator where, in the opinion of
the Correctional Investigator, the matter is of such urgency or
importance that a report thereon should not be deferred until the
time provided for the submission of the next annual report to the
Minister under section 192, and the Minister shall cause every such
special report to be laid before each House of Parliament on any of
the first thirty days on which that House is sitting after the day
on which the Minister receives it.
195.Where it appears to the Correctional
Investigator that there may be sufficient grounds for including in a
report under section 192 or 193 any comment or information that
reflects or might reflect adversely on any person or organization,
the Correctional Investigator shall give that person or organization
a reasonable opportunity to make representations respecting the
comment or information and shall include in the report a fair and
accurate summary of those representations.
COMMISSIONER'S
DIRECTIVE
CD035
- PROCESSING OF MINISTERIAL AND COMMISSIONER'S
CORRESPONDENCE
9.All correspondence received from the
Correctional Investigator shall be monitored by National
Headquarters and processed within ten working days.
2.10.2 The
involvement of the Correctional Investigator in the events being
examined
Even before the events examined by this
Commission, the Correctional Investigator had repeatedly raised with
the Correctional Service his concerns about the inadequacies of the
Service's grievance process, its Board of Investigation process, and
its failure to follow law and policy with respect to the use of
force and daily visits.
In this case, representatives of the
Correctional Investigator met with the inmates involved in these
events, and with staff members at the Prison for Women, commencing
in April, 1994. Subsequent visits and discussions with inmates and
prison staff occurred regularly throughout the balance of the period
of segregation. Throughout this period, the office of the
Correctional Investigator raised as serious concerns virtually all
of the issues that have been examined in this Commission's
proceedings, first at the institutional level, and subsequently with
the Regional Deputy Commissioner and the Commissioner.
The procedure at the Prison for Women was to
have a staff member who was otherwise totally uninvolved in the
concerns raised by the Correctional Investigator look into them and
prepare a response to those concerns for the signature of the
Warden. On at least one occasion, this method of proceeding resulted
in a response to the Correctional Investigator which the Warden,
when she testified, did not consider was in accordance with the
relevant legal obligations.
The Correctional Investigator first raised
some issues with more senior Correctional Service officials in late
June of 1994, in a letter to the Regional Deputy Commissioner. That
letter requested a copy of the Board of Investigation Report, and
the videotapes of the April 26/27th strip search and May 6th
transfer. In response, a representative of the Correctional
Investigator was advised orally to direct these requests to National
Headquarters which was thereafter the subject of repeated requests
for these items.
The evidence reveals a number of examples of
statements by the Correctional Service, including statements by the
Commissioner, that lead to the conclusion that the completion and
availability of the investigation report was imminent, as was access
to the video by the Correctional Investigator's office. There was
not any effort to alert the Correctional Investigator, or indeed any
other legitimately concerned individuals, to the likely delay in the
release of the Board of Investigation Report, and, in the absence of
any action by the Correctional Service, in the release of the sole
copy of the videotape then in the custody of the courts. The
Correctional Service did advise the Correctional Investigator that
when it became available, the tape could only be viewed by a female
representative of his office.
The Correctional Investigator was finally
provided with a copy of the Board of Investigation Report on
November 14, 1994. The videotape of the strip searches was
ultimately shown to representatives of the Correctional
Investigator's office (male and female) at the end of January, 1995,
shortly before its showing on the Fifth
Estate.
In late July of 1994, the Correctional
Investigator wrote to the Regional Deputy Commissioner concerning
the condition and duration of the segregation of inmates involved in
these incidents. The letter described dissatisfaction with the
institutional response to these issues and expressed the concern
that the institution was not in compliance with the law.
Both Regional and National Headquarters
adopted an approach in responding to Correctional Investigator
correspondence which was similar. The correspondence was sent to the
institution (directly by the Regional office, and through the
Regional office by the National office) for a draft response.
That approach appears to have been followed
in answering the Correctional Investigator's July letter to the
Regional Headquarters, as well as the Correctional Investigator's
further letter of September 13, 1994 to the Regional Deputy
Commissioner expressing dissatisfaction with the earlier response.
Both Regional replies reiterate the position already expressed by
the Prison for Women in response to the Correctional Investigator's
direct contacts with the institution. The letters to do not indicate
any critical assessment by the Regional Headquarters, and in
particular by the Regional Deputy Commissioner, of the propriety or
legality of the matters raised.
On November 7, 1994, the Correctional
Investigator wrote to the Commissioner expressing his concern with
respect to the conditions and duration of segregation for the
inmates involved in these events. Again, the practice for responding
to the Correctional Investigator's correspondence described above
appears to have been followed. The resulting response from the
Commissioner was not forthcoming until January 13, 1995. That letter
does not address many of the issues raised in the Correctional
Investigator's earlier correspondence.
On November 23, 1994, the Correctional
Investigator requested copies of all observation/ officer reports,
offence reports, security reports and use of force reports for the
period April 22 to 26, 1994. There was no response to that
letter until February 8, 1995 when, virtually simultaneously with
the completion of the Correctional Investigator's Special Report,
the Correctional Service delivered the requested material.
On February 14, 1995, the Correctional
Investigator delivered a special report to the Solicitor General
detailing his concerns with respect to the IERT attendance at the
Prison for Women, and the conditions and duration of segregation.
The report:
- criticizes the Board of Investigation for
failing to examine information relevant to its mandate or to deal
adequately with the issues raised by its mandate;
- criticizes the deployment of the IERT as
an excessive use of force which was degrading and dehumanizing for
the women involved;
- comments adversely on the Correctional
Service's response to requests for information from the
Correctional Investigator;
- details and criticizes the conditions and
duration of segregation of the women;
- recommends that the inmates be
compensated; and
- criticizes the Correctional Service for
failing to acknowledge or respond to the matters raised in the
report.
In submissions before me, the Correctional
Service took the position that in releasing his special report, the
Correctional Investigator was in violation of section 195 of the Corrections and Conditional Release Act in
failing to give the Correctional Service an opportunity to comment
on the statements in the report that would reflect adversely on the
Service or its employees, and in failing to summarize such
statements in the report itself.
2.10.3
Findings
Throughout the events examined by this
Commission, and indeed, throughout this inquiry's process, including
the investigations and hearings, the Correctional Investigator
conducted himself in full compliance with the letter and the spirit
of his legal mandate. In dealing with the Correctional Service on
the issues before me, between April of 1994 and February of 1995,
the Correctional Investigator and his staff were persistent, factual
and professional; their attitude and correspondence was never
inflammatory, and they showed considerable patience in dealing with
a bureaucracy which was neither ready, willing nor able to
participate in any exercise of self-scrutiny or criticism.
As for the issue raised with respect to
s.195 of the Corrections and Conditional
Release Act, that section essentially relates to a duty of
fairness. That duty has to be met, both when an annual and a special
report is released. The current practice in the release of an annual
report by the Correctional Investigator is to send it in draft form
to the Correctional Service and to include any representations made
by the Correctional Service as an appendix to the finalized released
report. Such a practice is not necessarily feasible, nor desirable
when a special report, which by definition deals with matters of
urgency and importance, is to be released. Indeed, it would be
counterproductive to signal to the Correctional Service that it
never has to answer the Correctional Investigator until notified of
the imminence of adverse comments being released in a special
report. In this case, the Correctional Service was given not only
reasonable, but ample opportunity to address the matters which
formed the subject of the adverse comments contained in the special
report. I believe that the duty of fairness expressed in s.195 of
the Act was met.
2.11 Documents
There is an extraordinary level of record
creation within the Correctional Service of Canada, particularly at
the lower levels of the organization. More than 100,000 pages of
documentation relevant to the incidents under investigation by this
Commission were ultimately produced by the Correctional Service.
Pursuant to my powers under the Inquiries Act, I directed the first request
for relevant documents to the Commissioner of the Correctional
Service in early May of 1995. That request was shortly followed by a
series of other such requests which made it clear that I required
production of all relevant documentation and a description of any
relevant documents which were being withheld on the basis of a claim
for privilege.
Unfortunately, many relevant documents were
not produced to the Commission until very late in the hearing
process and some were never produced. (Fortunately, copies of many
documents were in the possession of others - the
inmates, the Correctional Investigator, and CAEFS, for example
- and were therefore made available to the Commission.)
The Commission was forced to delay the completion of hearings in
early November, 1994 by the delivery of substantial additional
documentation on the eve of the scheduled testimony of the Senior
Deputy Commissioner and the Commissioner. Some significant documents
were produced in the middle of the Commissioner's evidence, on the
second last day of the hearings.
I recognize that the task of document
production to this Commission was a considerable and difficult task,
and that some individuals worked very hard to assist in the timely
discharge of this obligation.
However, the Correctional Service does not
appear to have an effective system for locating and retrieving
relevant documents. This is particularly disturbing given the amount
of effort which goes into the creation of a mass of documentation
which, if it cannot be adequately retrieved, is of little value. The
identification and production of relevant documents is an activity
which any organization involved in civil litigation is required to
discharge in a more effective and timely fashion than the
Correctional Service, a pillar of the criminal justice system,
managed to achieve in the context of this federal inquiry. Even if
there was no system in place at the time to facilitate the task of
document production, steps should have been taken at the senior
levels of the Correctional Service to ensure that enough appropriate
people were involved in the production process, that guidance was
sought and given about the concept of relevance. and that the legal
duty of production was discharged in a manner consistent with the
known timeframe within which the Commission had to operate.
As in other areas, the approach of the
Correctional Service to the criticisms of its document production
which arose over the course of this inquiry was to maintain, until
the last day of the hearing, that they were doing as well as could
be expected in the circumstances, and that the criticisms were
unfair. This approach to criticism is signalled at the very highest
levels of the CSC, a topic to which I shall return.
A notable example of this was the
Commissioner's letter to the editor of The Whig-Standard published
on November 9, 1995, following an article reporting on the
adjournment of the Commission's proceedings as a result of late
documentary production earlier in November. Although I was offered
no explanation by any of the many representatives of the
Correctional Service in attendance at the proceedings when I granted
the adjournment, the Commissioner wrote:
I refer to the article
"Corrections Rebuked" (Nov. 3).
We were not given an
opportunity to publicly respond to the allegations of the Commission
Counsel that the Correctional Service of Canada has not provided
documents in a timely manner. However, there are two sides to this
story, and we look forward to sharing our views on this matter with
the Commission, in public session, when it resumes hearings in
December.
John Edwards
Commissioner
Correctional Service of Canada
Ottawa
In the course of his testimony in December,
the Commissioner revealed the existence of further documents which
had not been produced to the Commission. The Service gathered the
documents overnight and, after a half day recess, we resumed the
hearings, with the cooperation of all counsel. The Commissioner
ultimately acknowledged that the Correctional Service had not
adequately satisfied its obligation to produce relevant documents in
a timely fashion, that the departures from production requirements
were serious and had caused considerable inconvenience to all
parties and to the Commission in meeting the reporting date entailed
in its terms of reference. The Commissioner did not consider it
appropriate to apologize for these failings, though in final
submissions a month later his counsel conveyed his regret for the
inconvenience to the Commission and to the parties, noting that the
Service has "learned lessons" that would enable it to respond in the
future and that it had not foreseen the scope of the production
requirements.
2.12 Measuring
CSC's Performance Against its Mission Statement
In its Mission Statement, the Correctional
Service of Canada commits itself to "openness", "integrity", and
"accountability". An organization which was truly committed to these
values would, it seems to me, be concerned about compliance with the
law, and vigilant to correct any departures from the law; it would
be responsive to outside criticism, and prepared to engage in honest
self-criticism; it would be prepared to give a fair and honest
account of its actions; and it would acknowledge error. In this
case, the Correctional Service did little of this. Too often, the
approach was to deny error, defend against criticism, and to react
without a proper investigation of the truth.
This approach was demonstrated not only with
respect to the events in issue, but in its dealings with the
Commission, for example, on the question of documents.
Although the Commissioner has not, to my
knowledge, made other statements to the press on this issue, I take
his admissions at the hearings in December to be a retraction of all
of the statements contained in his letter to The Whig-Standard.
It was patently inaccurate for the
Commissioner to assert in his letter that the Correctional Service
had not been given an opportunity to explain the late production of
documents; the issue was raised frequently at the public hearings,
at which the Correctional Service was ably represented by competent
and diligent counsel. In any event, it has now had that opportunity.
The Commissioner took an inaccurate stance
publicly, in defence of the Correctional Service, which he retracted
only when personally confronted, in the course of his testimony,
with yet another example of the problems in document disclosure that
he had refused to acknowledge.
This precipitous, yet ill-informed and
inaccurate defensive reaction, is reminiscent of the position taken
by the Commissioner and the Correctional Service generally, with
respect to the content of the videotape of the IERT intervention at
the Prison for Women, until Mr. Edwards actually personally viewed
it.
In both instances, it would have been
preferable for the head of the Correctional Service to inform
himself accurately and to concede, in the case of the documents, the
shortcomings of the Service and, in the case of the strip search,
that wrong had been done.
The Commissioner was also defensive about
the Board of Investigation process and the quality of its report,
until confronted, in his evidence, with the specifics of the obvious
failings of the report.
Similarly, the Correctional Service filed
inaccurate and misleading evidence in defence of its position with
the court, and prepared an inaccurate and defensive briefing note
for the Solicitor General.
However, there was one example of the
Correctional Service taking a dramatic and public response to the
appearance of a violation of its policies. Warden Cassidy was forced
to leave the Prison for Women in the middle of September, 1994, for
reasons which were totally unrelated to the events examined by this
Commission. It came to the attention of the Senior Deputy
Commissioner and Commissioner that she had hired her daughter as a
casual employee, contrary to Correctional Service policy. The
Correctional Service reacted swiftly. This is in contrast to its
reaction to the ongoing infringement of prisoners' legal rights at
the Prison for Women over many months, in respect of which the
Service did not see fit to take any corrective action.
The deplorable defensive culture that
manifested itself during this inquiry has old, established roots
within the Correctional Service, and there is nothing to suggest
that it emerged at the initiative of the present Commissioner or his
senior staff. They are, it would seem, simply entrenched in it.
I believe that it is also part of that
corporate culture to close ranks, and that the defensive stance of
senior managers was often motivated by a sense of loyalty to their
subordinates. This otherwise admirable instinct should, however,
always defer to the imperatives of scrupulous commitment to the
truth which must be displayed by those entrusted with people's
liberty.
I must add that I saw many examples of
individual candour and, particularly in my dealings with individuals
in Phase II of our proceedings, a remarkable dedication to
correctional ideals for women prisoners and to the Service's Mission
Statement among many members of the Correctional Service.
The Commissioner was asked during the course
of his evidence to consider, given that the inmates' assertions
about how they had been treated had now been shown to be true,
whether they were due an apology. His response was that they were,
but that they should also be asked to apologize for their behaviour
on April 22nd.
The resolution of criminal charges against
the inmates by their guilty pleas in December of 1994 closes that
chapter. No further apology is required on their part, contrary to
the Commissioner's suggestion. Their behaviour after April 22nd
could have been the object of institutional charges. It was not. To
the extent that they "misbehaved" during that period of time, their
subsequent treatment in segregation was ample punishment. They have
been held accountable for their actions.
As for their treatment by the IERT, their
prolonged segregation, the inadequate segregation review and
grievance process, I think that they should have received an
apology. I also think that they are entitled to compensation.
Counsel agreed that I should not address the issue of quantum.
PART
II POLICY
ISSUES
Introduction
After the completion of both Phases of the
inquiry, counsel gave me the benefit of their oral and written
submissions on the evidence that had been heard during Phase I of
the hearings. It is from these submissions that I now extract the
two themes that I wish to address in considering the broader issues
that arise from the incidents under investigation.
In his oral submissions, counsel for the
Correctional Investigator opened his remarks with the following
statement: "The bedrock upon which our society has been built is the
Rule of Law". Later he said: "It is the Rule of Law that is the
basis of problems into which this Commission of Inquiry has
looked...it cannot be said that the law was too new. Nor can it be
said that the law is too complex." And later: "the failure on the
part of the management of the Correctional Service to comply with
the law or even determine what the law is shows, in my respectful
submission, that they simply didn't care."5
In contrast to that approach, which was
endorsed by counsel representing inmates' interests and CAEFS, the
written submissions of the Correctional Service of Canada opened
with several quotes from judicial decisions. The first one was as
follows:
Penitentiaries are not nice
places for nice people. They are rather institutions of
incarceration for the confinement of for the most part
crime-hardened and antisocial men and women, serving sentences of
more than two years. (Howard v. Stony
Mountain Institution [1984], 2 F.C. 642 (CA) at 681, per
MacGuigan J.A. in separate concurring reasons)
Then, from an American case:
A detention facility is a
unique place fraught with serious security dangers. Smuggling of
money, drugs, weapons, and other contraband is all too common an
occurrence. (Lanza v. New York,
370 U.S. 139 (1962))
Moving on, the Correctional Service saw fit
to bring to my attention the following remark by a Canadian judge,
endorsed on appeal:
It is not my function to
substitute my opinion for that of the institutional head as to the
most effective methods to ensure the safety and security of the
institution for which he was responsible. Skin frisking is an
accepted procedure throughout the penitentiary service... (Gunn v. Yeomans [1981], 2 F.C. 99 (TD) at
107, quoted with approval in Robertson v.
Yeomans [1982], 1 F.C. 53 at 59-60)
Finally, and probably most telling, the
Correctional Service wished to draw my attention to the following
remark made by a trial judge:
There may be situations where
the facts of a particular incident cry out for a detailed
explanation from penitentiary officials. But as a general principle
this imposes too onerous a standard. First and foremost the
respondents are busy administrators. They are not trained lawyers or
judges with little else to do but spend their days writing
decisions. They are not administering the criminal law. (Bachynski v. Warden of William Head
Institution, (July 27, 1995, unreported B.C.S.C.) per Bouck J.
at p.13-15)
From the way these issues were presented to
me, I draw two general themes which will guide my analysis of the
policy issues.
The first one deals with the Rule of Law and
the role of legal order in the correctional corporate philosophy
within the Correctional Service of Canada. The second, which is
apparent from the Correctional Service's introductory submissions,
is that none of the judicial comments that were brought to my
attention were made in the context of the incarceration of women. If
anything, these comments brought home to me the realization that,
despite its recent initiative, the Correctional Service resorts
invariably to the view that women's prisons are, or should be, just
like any other prison.
It is essentially these two broad themes
that I wish to address in the remaining portions of this report.
Because of the nature of my mandate, and its focus on events at the
Prison for Women, my emphasis, overall, will be on the latter.
3 .GENERAL
CORRECTIONAL ISSUES
3.1 Developing a
Culture of Rights
3.1.1 No
punishment without law
Reliance on the Rule of Law for the
governance of citizens' interactions with each other and with the
State has a particular connotation in the general criminal law
context. Not only does it reflect ideals of liberty, equality and
fairness, but it expresses the fear of arbitrariness in the
imposition of punishment. This concept is reflected in an old legal
maxim: nullum crimen sine lege, nulla poena
sine lege - there can be no crime, nor punishment,
without law.
In the correctional context, "no punishment
without law" means that there must also be legal authority for all
State actions enforcing punishment.
It is apparent that the legal order must
serve as both the justification and the code of conduct for
correctional authorities since the confinement of persons against
their will has no other foundation; it is not justifiable solely on
self-evident moral grounds; it is not required on medical,
humanitarian, charitable or any other basis. The coercive actions of
the State must find their justification in a legal grant of
authority and persons who enforce criminal sanctions on behalf of
the State must act with scrupulous concern not to exceed their
authority.
3.1.2 The
breakdown of the Rule of Law
The breakdown of the Rule of Law in
corrections has been denounced in the past, often in the most
forceful terms. In 1977, the Report of the
Subcommittee on the Penitentiary System in Canada, chaired by
The Honourable Mark MacGuigan stated that: "There is a great deal of
irony in the fact that imprisonment...the ultimate product of our
system of criminal justice itself epitomizes injustice."6
In 1984, the Report
of the Advisory Committee to the Solicitor General of Canada on the
Management of Correctional Institutions, chaired by Mr. John J.
Carson, made the following recommendation:
The Service must clearly
enunciate the philosophy and policy which reinforces the rule of law
in all institutions, at all times, under all circumstances. It must
be made clear to staff and inmates alike, while the Service will
protect them, it will not condone any unwarranted and unlawful use
of force. Both staff and inmates must realize that violations will
be resolved in swift and certain disciplinary action.7
In my view, if anything emerges from this
inquiry, it is the realization that the Rule of Law will not find
its place in corrections by "swift and certain disciplinary action"
against staff and inmates. The absence of the Rule of Law is most
noticeable at the management level, both within the prison and at
the Regional and National levels. The Rule of Law has to be imported
and integrated, at those levels, from the other partners in the
criminal justice enterprise, as there is no evidence that it will
emerge spontaneously.
The role of legal norms in penal
institutions was recently described by Lucie Lemonde as follows:
Imperative rules are
omnipresent in the penal legal order. In addition to institutional
rules, there are innumerable directives, regional instructions,
standing orders, memoranda and manuals applicable to inmates, etc.
These rules control in minute detail all aspects of daily life.
According to Foucault, they amount to a complete microsystem of
penal rules regulating time (lateness, absenteeism), action
(carelessness, laziness), behaviour (impoliteness, disobedience),
expression (insolence, disrespect), sexuality (indecency).
"There is no aspect of
institutional life that is not covered by a rule", writes Berkman.
"Rules systems within institutions are always expanding. Even when a
particular rule is changed or abandoned, other rules grow up to
regulate the area of activity." He illustrates this statement with
the following example: when mandatory prison uniforms were abandoned
in some American institutions, a plethora of rules were enacted to
regulate the type, style and colour of the street clothes allowed.
Notwithstanding the
proliferation of rules, analysts of penal systems are almost
unanimous in concluding that they are lawless States. Thus,
Greenberg and Stender, in their 1972 article "The Prison as a
Lawless Agency", assert that "the prison, supposedly designed to
enforce the law, became a complete negation of very principle of
legality". In 1974, Professor Michael Jackson, after scrutinizing
the disciplinary process in some penitentiaries, concluded that the
Canadian Correctional Service was "a lawless State".8 (Translation)
This dual characteristic of the role of
legal norms in a penal institution was amply demonstrated throughout
this inquiry. On the one hand, the multiplicity of regulatory
sources largely contributed to the applicable law or policy being
often unknown, or easily forgotten and ignored. On the other hand,
despite this plethora of normative requirements, one sees little
evidence of the will to yield pragmatic concerns to the dictates of
a legal order. The Rule of Law is absent, although rules are
everywhere.
The major reform with respect to the law
governing incarceration, which took place with the enactment of the
Corrections and Conditional Release Act
of 1992, has been described as an important transition from an
administrative to a legislative legal order.9 The new Act
and the regulations thereunder, overrode numerous Commissioner's
Directives which are now often merely repetitive of the legislative
text and, at best, add an occasional detail. This transformation
followed a decade or so of judicial pronouncements which laid the
foundation for the prisoners' rights which were eventually
incorporated into the CCRA. After a long
history of running penal institutions through a process of
administrative discretion which utilized discipline and the granting
of privileges as management tools, the correctional system is
obviously going through the growing pains of having to yield to
judicial supervision and the dictates of the legislator.
As I understood him, the Commissioner of
Corrections recognized the need to simplify and streamline the
existing corpus of legal and policy directives that are meant to
guide the daily activities of correctional officers. The present
mass of unorganized administrative directives obscures the
fundamental premise that all correctional authority must find its
roots in the enabling legislation, and that it must yield to the
legislated rights of prisoners.
The Service would be well advised to resist
the impulse to further regulate itself by the issuance of even more
administrative directions. Rather, the effort must be made to bring
home to all the participants in the correctional enterprise the need
to yield to the external power of Parliament and of the courts, and
to join in the legal order that binds the other branches of the
criminal justice system.
In light of the obvious difficulty at all
levels of the Correctional Service to appreciate the need to obey
both the spirit and the letter of the law, I suggest that there
should be more cross-fertilization between the Correctional Service
and the other branches of the criminal justice system. Specifically,
I would propose that in recruiting and in training, at all levels
including at the highest managerial levels, there be input from
people experienced in other branches of the criminal justice system
such as lawyers (defence and Crown), police officers, etc.
Police training courses should be examined
in order to borrow any useful ideas about importing an understanding
of legal rights into law enforcement concerns. The Correctional
Service should also turn to bar associations, criminal lawyers'
associations, associations of Crown Attorneys, the National Judicial
Institute, and other such organizations who have an educational
component, to seek assistance in developing a program of initial and
continuing education for correctional officers, which will emphasize
the supremacy of the Canadian Charter of
Rights and Freedoms and the fact that all authority comes from
the law.
Through the National Judicial Institute, I
would like to see programs developed that would render judges more
conscious of the need to maintain some ownership of the integrity of
their sentence after it is imposed, and of their right, under s.72
of the CCRA, to visit penitentiaries,
which very few exercise.
Making the law accessible and known should
therefore be a priority in correctional planning. Making the law
observed, of course, will still not necessarily follow from that
initiative.
3.2 Developing an Effective
Sanction
3.2.1 The need for
a sanction
Ultimately, I believe that there is little
hope that the Rule of Law will implant itself within the
correctional culture without assistance and control from Parliament
and the courts. As a corrective measure to redress the lack of
consciousness of individual rights and the ineffectiveness of
internal mechanisms designed to ensure legal compliance in the
Correctional Service, I believe that it is imperative that a just
and effective sanction be developed to offer an adequate redress for
the infringement of prisoners' rights, as well as to encourage
compliance. Whether prisoners should have certain rights, such as
the right to counsel, the right to effective segregation review, to
family contacts, to exercise, etc., is for Parliament to decide in
compliance with any constitutionally mandated entitlement. 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. Indeed, it is always more important that the vigorous
enforcement of rights be effected in the cases where the right is
the most meaningful. For example, the right not to be subjected to
non-consensual body cavity searches is not particularly valuable to
those who are unlikely ever to be subjected to such an intrusive
procedure. It is only valuable, and therefore should be enforced
with the greatest vigour, in cases where such searches are likely to
be undertaken. In the same way, the right for a woman not to be
subjected to a strip search by a man is of little significance to
someone who has never been and is realistically unlikely to ever be
strip searched by anyone.
Respect for the individual rights of
prisoners will remain illusory unless a mechanism is developed to
bring home to the Correctional Service the serious consequences of
interfering with the integrity of a sentence by mismanaging it. The
administration of a sentence is part of the administration of
justice. If the Rule of Law is to be brought within the correctional
system with full force, the administration of justice must reclaim
control of the legality of a sentence, beyond the limited
traditional scope of habeas corpus
remedies.
3.2.2 A proposed
model
Judges who impose sentences expect that
their sentence will be administered in accordance with the law. If
that is departed from, the integrity of the sentence is at stake,
and may need to be restored. A sentence of imprisonment is comprised
not only of a fixed term, expressed by the judge, but also of all
the stipulations contained in the Corrections and Conditional Release Act, or
in the Criminal Code, or in any other
statute or regulation governing imprisonment. It would be
unthinkable that the Correctional Service could illegally modify the
duration of a sentence with impunity. This is the essence of habeas corpus. It is difficult to
comprehend why there should be more tolerance for the disregard of
other terms and conditions of a sentence which are as essential to
its integrity as is its duration. As a means of preserving the
integrity of a sentence which can be threatened by illegality, a
provision should be enacted to give effect to the following
principle:
If illegalities, gross
mismanagement or unfairness in the administration of a sentence
renders the sentence harsher than that imposed by the court, a
reduction of the period of imprisonment may be granted, such as to
reflect the fact that the punishment administered was more punitive
than the one intended.
This proposed remedy is in some ways akin to
the exclusionary rule contained in s.24(2) of the Charter which provides for the exclusion of
illegally obtained evidence. It is akin to such rule in that it
provides an effective redress which is responsive to the
infringement of right that has occurred. Indeed, the enactment of
the exclusionary rule in the Charter has
been the single most effective means ever in Canadian law to ensure
compliance by state agents with the fundamental rights in the area
of search and seizure, arrest and detention, right to counsel and
the giving of statements to persons in authority. The exclusionary
rule has served to affirm a norm of expected police behaviour, at
the real and understood social cost of allowing a potentially guilty
accused to escape conviction. The rule that I am advocating here is
nowhere near as drastic a form of redress as the Charter exclusionary rule. It creates no
"windfall" for the benefit of the inmate, as the exclusionary rule
is often perceived to do for the accused. Rather, a reduction of the
term of imprisonment to reflect the illegally or unjustly imposed
harsher conditions of imprisonment merely restores the original
sentence to its full intended effect. There is truly no "windfall"
for the inmate.
Moreover, this concept is not new in
sentencing law. The so called "dead time" which is the time served
by an accused while awaiting trial, is often computed as "double
time" in light of the fact that it is a period of custody which is
in many respects harsher than the custodial period that will be
served as part of a regular sentence. It is seen to be harsher
because it does not carry a computation of entitlement towards
parole eligibility, and also because, in many circumstances, that
pre-trial custodial period is served in a remand facility in which
the accused may not have access to programs, or other forms of
rehabilitation mechanisms. There is nothing radical in the concept
that harsher conditions of detention could result in shorter
sentences.
I cannot examine here the procedural
mechanisms by which such a sanction should be applied, nor issues
such as evidentiary burden, etc. Suffice it to say that an
application could be made to the court who imposed the sentence for
a reduction of the term of the sentence to reflect the unlawful
conditions under which part of the sentence has been served or, in
the case of a mandatory sentence, the law could require the Parole
Board to consider such illegally harsh conditions as a factor
weighing in favour of an earlier release. In cases where there is no
eligibility for parole for a long time, an inmate could seek a
declaration that there was illegality or unfairness in the
administration of the sentence, and the declaration could be put
before the Parole Board at the appropriate time.
I am conscious of the additional burden that
this could place on the court system. This, of course, would only be
so in proportion to the Correctional Service's non-compliance with
the law. There are means to control frivolous litigation. I share
the view recently expressed in the press by the Commissioner of
Corrections that too many people are imprisoned in this country.
This is nowhere more true than in the case of women offenders. A
reduction of the prison population and its associated costs would
free the resources necessary to ensure that those who are imprisoned
are treated in accordance with the law.
Ultimately, considering the growth of
pre-trial judicial remedies and the near neglect of post conviction
rights, I think that a new balance may need to be struck. The
Correctional Service may not share my view of the need for judicial
supervision. Professor Hèléne Dumont, former Dean at the Faculty of
Law, University of Montrèal, said:
It is self-evident to students
of penal law that correctional authorities do not take at all kindly
to judicial admonitions regarding their abuse of discretion and
legendary contempt for inmate rights.10 (Translation)
3.3 Managing
Segregation
Although I have examined segregation very
much in light of the facts related in this case, I believe that it
is not an issue that should be addressed solely in the context of
women's incarceration. It raises generic correctional concerns in
addition to those specific to women, and calls for a broadly based
solution.
3.3.1 The effects
of segregation
The Corrections and
Conditional Release Act provides for two forms of involuntary
segregation. The first is entitled administrative segregation. Its
purpose is to keep an inmate from associating with the general
inmate population. It can be used whenever the institutional head
has reasonable grounds to believe that the continued presence of the
inmate in the general population jeopardizes the security of the
penitentiary or the safety of any person, including the inmate's own
safety, or would interfere with a serious investigation. Further,
the institutional head must be satisfied that there is no
alternative but to segregate the inmate, and must ensure that the
inmate is returned to the general population as soon as possible.
Segregation may also be used for
disciplinary purposes, after an inmate has been found guilty of a
serious disciplinary offence. Segregation is the most severe form of
punishment that can be administered as a disciplinary sanction. Even
at that, it is limited to a maximum of 30 days, which can be
increased to a maximum of 45 days for multiple convictions.
In addition to being segregated as
punishment for institutional offences, and when there are
administrative concerns about security and safety, prisoners are
withdrawn from the general population, sometimes at their own
request, for a short period of "time out", or for longer term
protective custody. They are also segregated, voluntarily or not, in
times of crisis, when at risk of self-injury or suicide. In reality,
both protective custody and administrative segregation often lead to
inmates being in isolation for months, if not years.
Michael Jackson has described solitary
confinement as "the most individually destructive, psychologically
crippling and socially alienating experience that could conceivably
exist within the borders of the country".11 During the Commission's Phase II
consultations, many participants spoke of the pain, anxiety and
desperation which is experienced by inmates placed in segregation.
Some of my earlier findings are consistent with these experiences
and opinions.
Whether there are any significant effects
which result specifically from confinement in administrative
segregation has been debated extensively in the scientific and
criminological communities12 and has
significant implications for the management of correctional
institutions as they currently operate.
There is a small body of research, much of
which has been generated in Canada, which asserts that "long-term
imprisonment and specific conditions of confinement such as
solitary, under limiting and humane conditions, fail to show any
sort of profound detrimental effects"13. This research is of little utility in
evaluating the effects of solitary confinement as it is currently
administered in penitentiaries, particularly on women. Virtually all
of the studies which claim to have found no negative effects of
segregation have been carried out on male volunteers, often
undergraduate college students14.
Studies carried out in the prison context employed volunteer male
inmates15. These volunteers knew the
specific length of time that they would be held in segregation
(usually for between four and seven days) and the specific
conditions under which they would be held. Inmates with histories of
psychiatric, behavioural, or medical problems were screened out of
the research. In addition, volunteers were told that they would be
released if they changed their minds, or began to suffer serious
negative effects. None of the studies used women.
In contrast, there is a body of clinical
literature which supports the view that the effects of long-term
segregation on prisoners are deleterious to their mental health.
Grassian concluded from his research on inmates that "rigidly
imposed solitary confinement may have substantial psychopathological
effects and ... these effects may form a clinically distinguishable
syndrome."16 In that study, he found
the inmates suffering from, among other things, perceptual
distortions such as hallucinations, affective disturbances such as
massive anxiety, difficulties thinking, disturbances in thought
content, problems with impulse control and rapid subsidence of
symptoms on termination of isolation. Similarly, Benjamin and Lux
found evidence from the experience of prisoners and prison
psychologists, of damage in the form of cognitive impairment (e.g.
concentration, memory, hallucinations) and emotional impairment
(feelings of hopelessness, depression, rage and
self-destructiveness) as a result of detention in solitary
confinement.17
All this is consistent with my previous
findings, as well as with many of the views that were expressed
during Phase II of the proceedings.
A number of studies have noted the
additional impact of the treatment of inmates while in segregation.
These include negative interactions with staff, the frequent
violation of the rules and regulations governing detention in
segregation, and the uncertainty of release for inmates held in
administrative segregation.18 The
findings that I made earlier support the conclusion that prolonged
segregation is a devastating experience, particularly when its
duration is unknown at the outset and when the inmate feels that she
has little control over it.
Moreover, my findings coincide with the
general comment made during the Phase II discussions by Ed McIsaac,
Executive Director of the Correctional Investigator, who concluded
that:
Our review of this situation
certainly indicates that the vast majority of those housed in
administrative segregation are, in fact, not there on reasonable
grounds as defined by the Act.19
The use of segregation by the Correctional
Service for inmates in distress, including those who are at risk of
self-injury or suicide, is also problematic. The forced isolation of
individuals from their social and physical supports, and human
contact, is a profound form of deprivation. It can only heighten
feelings of desperation and anxiety in situations of despair and
high-need. Gail Stoddart articulated it very well:
I don't think there is anybody
in this room that has never had a family member or a friend or a
co-worker in a crisis situation, and I would like you to ask
yourselves what it is that you do with or for that person at that
time....In addressing the segregation issue, if it was your sister
or your mother who was in a crisis over something that had happened
in her life, would you lock her up in her room and leave her there
alone? Is that a really good solution to dealing with the problem or
perhaps looking at the issues of what caused it and what led up to
it?20
3.3.2 Alternative
measures to segregation
It was striking that all of the participants
in Phase II acknowledged the need to find alternatives to the use of
segregation. Elaine Lord, Superintendent of Bedford Hills
Correctional Facility in New York State characterizes the use of
segregation as a failure of institutional, managerial and
correctional practice:
...I think that when we use
segregation, we have failed. And we have failed - we
haven't found the right avenue yet and we need to keep looking for
it. We haven't found how to create a safe place, if you will, for
that person so they can deal with the rage or whatever feelings they
have in a more appropriate manner, nor have we helped them to learn
how to deal with those feelings.21
Dr. Heather McLean identified a range of
individuals and groups that could be relied upon to diffuse
difficult situations within the institution and to support
individual women in crisis. For example, the peer support groups,
the inmate committee, Native Sisterhood and elders and the Citizens
Advisory Committee are all available either immediately or within a
relatively short period of time. The recognition that women's
violence is multi-determined should direct attention to various
institutional and personal solutions to crises of most kinds and to
the need for alternatives to the routine placement of women inmates
in segregation. In fact, Dr. Marni Rice, Director of Research at
Penetanguishene Mental Health Centre has found that extended periods
of segregation can exacerbate crisis situations, rather than diffuse
them. A key element is to train staff to identify factors which
escalate potential crises, and to have available to them a range of
non-violent, non-coercive interventions before force, including
restraints and/or segregation, is used.
We must break the mindset which assumes the
inevitability of segregation. The information and insights provided
to us by Elaine Lord are significant. Bedford Hills, a maximum
security prison for 800 women, contains a special housing unit which
is used for administrative segregation, disciplinary segregation and
protective custody. It serves as the segregation unit, not only for
Bedford Hills, but for all of New York State's 13,500 women inmates:
if a women is sent to segregation from any of New York's six
institutions, she becomes reclassified as maximum security and is
sent to Bedford Hills. That segregation unit has 24 cells. Last
fall, there were 20 women in that unit in disciplinary segregation
and two in protective custody.
Disciplinary segregation in New York can be
imposed for an incredibly long period. Ms. Lord said:
Sadly, in New York, segregation
time tends to be very long. You would not imagine the types
- I think sometimes the minute you get attorneys
involved and you get more legalistic, then it can be okay
- it is okay in New York to give 10 years in
segregation. I have a woman with five years segregation. She's
served about eight months.
. . .
It's still not a great system.
I agree that that kind of time - the woman or whoever,
knows, you go to a hearing and you know at the end of the hearing,
if you get found guilty, how much - what your penalties
are. But they can be very significant. So again, you know, don't
follow the American system. We are becoming very punitive and our
penalties for segregation are reflecting our sentences on the
outside. I have women with 75 to life, women with 47 to life, you
know, somehow the segregation sentences tend to follow that.22
Segregation seems to be very much a last
resort at Bedford Hills, and little discretion is given to prison
authorities to have recourse to it for prolonged periods. Ms. Lord
added:
We have a different system, I
think, in the United States, in New York. Segregation was very
heavily litigated and we have a different legal structure... people
in segregation do tend to be much more legalistic. Hearings are
conducted by an attorney who does not work for the Warden.
... So we have a more
legalistic system.23
It is helpful to look elsewhere for creative
solutions, even when there are enormous differences in the social
fabric of the prison community. Bedford Hills has had only one
suicide in 20 years. The population is primarily Afro-American and
Hispanic. Twenty two percent of the incoming women are HIV positive
and in the months preceding Elaine Lord's participation in our
proceedings, 10 women under her supervision had died of AIDS.
Considering the tragic circumstances under
which it operates, and the problems of all sorts that an institution
of that size must face, it is instructive that it has not yielded to
the temptation to use segregation as a panacea for all threats to
its authority. In comparison, it is difficult to understand the need
to spend half a million dollars to build a new seven-cell
segregation unit at the Prison for Women, on the eve of closure, to
manage 140 women.
3.3.3 The position
of the Correctional Service
It is to the credit of the Service that it
has worked extensively to revise its approach to crisis
intervention, in the context of the new facilities. The Phase II
submission from the Service outlines a reformed and "phased
approach" to crisis intervention which will be in place in the new
regional prisons. This approach involves relying on a continuum of
measures from the least intrusive (e.g. verbal intervention) to the
most coercive. The latter includes the use of physical restraint,
chemical agents and/or segregation. This policy includes staff
training in non-violent crisis intervention, cell extraction
techniques currently employed at the Burnaby Correctional Centre for
Women where only female staff members are used, and critical
incident stress de-briefing for staff and inmates.
Separate contingency plans for
institution-wide emergencies (e.g. hostage-takings, escapes, major
disturbances, withdrawal of services) are also identified, and
include transfer options which may serve as alternatives to
segregation.
3.3.4 The Regional
Facilities
The total number of "enhanced security"
cells in the new prisons has been doubled from the number in the
original designs of the institutions, and the Correctional Service
intends to use them for new admissions; protective custody inmates;
inmates at risk of self-injury; and inmates behaving in a disruptive
or violent fashion.
The Service maintains, however, that only 6%
of the 42 units are, in fact, cells in the more traditional sense,
and will be used for segregating disruptive or violent women as a
last resort.24 The particular design
of the enhanced units will also allow the separation of inmates in
administrative or disciplinary segregation from inmates in crisis
and new admissions. The latter may require segregation from the main
population, but will be housed somewhat separately from women
behaving disruptively. They will have access to programs and
facilities in the rest of the prison along with the general
population inmates. While the inmates placed in administrative or
disciplinary segregation will not typically be allowed out of the
enhanced unit, the design is such that programs and other needs can
be met on site. This will, according to the Service, permit the
institution to provide a correctional plan which facilitates the
reintegration of the inmate back into the general population,
without disrupting the rest of the population.
3.3.5 A proposed
solution
The Correctional Investigator pointed out,
however, that "although the Service prefers to speak in terms of
'enhanced units' rather than segregation, the reality is that past
practices will re-emerge if clear alternatives are not
established."25 I share that
concern.
All the segregation units that I have
visited in different women's prisons across Canada shared a common
feature. All were totally bare and bleak. Not only were they
designed to ensure the isolation of the segregated inmates from the
general population, but they contained little to relieve the boredom
and depression that would be associated with forced isolation. On
the contrary, their configuration and management would do everything
to exacerbate it. In short, I have not seen a segregation unit that
I would consider suitable for long-term confinement.
In my opinion, the most objectionable
feature of administrative segregation, at least on the basis of what
I have learned during this inquiry, is its indeterminate, prolonged
duration, which often does not conform to the legal standards. The
management of administrative segregation that I have observed is
inconsistent with the Charter culture
which permeates other branches of the administration of criminal
justice. In keeping with the notion that a sentence served in unduly
harsh conditions may deserve to be reconsidered by the courts, I
would recommend that there be a time limit imposed on an inmate
being kept in administrative segregation, along the following lines.
An inmate could be segregated
for up to three days, as directed by the institutional head, to
diffuse an immediate incident. After three days, a documented review
should take place, in contemplation of further detention in
segregation. The administrative review could provide for a maximum
of 30 days in segregation, no more than twice in a calendar year,
with the effect that an inmate could not be made to spend more than
60 non-consecutive days in segregation in a year. After 30 days, or
if the total days served in segregation during that year already
approached 60, the institution would have to consider and apply
other options, such as transfer, placement in a mental health unit,
or other forms of intensive supervision, but involving interaction
with the general population. If these options proved unavailable, or
if the Correctional Service was of the view that a longer period of
segregation was required, they would have to apply to a court for a
determination of the necessity of further segregation. Upon being
seized of such matter, the court would be required to consider all
the components of the sentence, including its duration, and make an
order consistent with the original intent of the sentence. In cases
where long-term, involuntary segregation was contemplated, a
temporary order could be sought, pending the completion of
documentation akin to the type prepared for an application for
dangerous offender status.
The segregation review process that I have
examined in this case was not operating in accordance with the
principles of fundamental justice. The literature suggests that this
is not unusual.26 Segregation is a
deprivation of liberty. In my view there should be judicial input
into the decision to confine someone to "a prison within a prison"
(Martineau v. Matsqui Disciplinary Bd.,
[1980] 1 S.C.R. 602, at 622; see also R. v.
Miller, [1985] 2 S.C.R. 613, at 637). There is no
rehabilitative effect from long-term segregation, and every reason
to be concerned that it may be harmful. I realize that there are
circumstances where segregation, even prolonged segregation, may be
inevitable. I see no alternative to the current overuse of prolonged
segregation but to recommend that it be placed under the control and
supervision of the courts. Failing a willingness to put segregation
under judicial supervision, I would recommend that segregation
decisions made at an institutional level be subject to confirmation
within five days by an independent adjudicator. Such a person should
be a lawyer, and he or she should be required to give reasons for a
decision to maintain segregation. Segregation reviews should be
conducted every 30 days, before a different adjudicator, who should
also be a lawyer. It should be open to an inmate to challenge the
legality or fairness of her segregation by applying to a court for a
variation of sentence in accordance with the principle set out
earlier.
3.4 Increasing Accountability in
Operations
In order to bring itself within the dictates
of the Rule of Law, the Correctional Service must also increase its
capacity at self-investigation. Recognizing as one must the limits
of this enterprise, the Service must also demonstrate its
willingness to be scrutinized by others, besides the courts, in
operational matters.
3.4.1 Internal
mechanisms
3.4.1.1 Boards of
Investigation
As indicated earlier in this report, many
concerns arose with respect to the report produced by the national
Board of Investigation which was convened by the Commissioner to
investigate and report on the incidents of April 22nd and the
response of the Correctional Service to these events. This report
was perceived by the Service as a typical report, and until its
shortcomings were pointed out to him during the course of this
inquiry, the Commissioner was satisfied that the report served the
needs of the Service well. For reasons that I have expanded upon in
the previous part of this report, I disagree with this assessment.
Internal Boards of Investigation could still be a useful tool for
the Correctional Service to apprise itself of the nature and causes
of serious incidents, and of the adequacy of its response to them.
My first recommendation would be that all Boards of Investigation
should be required to examine whether or not the Service, at all
levels - correctional staff, institutional management,
Regional and National Headquarters - complied with the
applicable law and policy in response to the events under
investigation. More specifically, all Boards of Investigation should
be required to report on whether or not there was any infringement
of prisoners' rights occurring at the time or as a result of the
events under investigation.
The Commissioner has advised of his decision
that in the future, all national Boards of Investigation will
include a member from outside the Correctional Service. I would
further recommend that the outside member should be drawn from a
list compiled not only from suggestions generated within the
Service, but also from organizations such as the John Howard
Society, CAEFS, the Canadian Bar Association, the Canadian
Association of Chiefs of Police, and any other group with similar
interest or expertise.
I would also recommend that efforts be made
to improve the training and expertise of Board members. It might be
preferable to train a core of specialized investigators who could
sit on national Boards of Investigation and, if there are
insufficient numbers of investigations to keep them busy,
investigators could assist with some of the more difficult Regional
Boards. The Correctional Service might obtain some expertise from
the various police oversight bodies who are experienced at
investigating errors, deficiencies or wrongdoing within police
forces. Insight could be obtained from these units about proper
methods for the Correctional Service to investigate itself or the
performance of its members.
The training of this investigation unit, or
of any person asked to serve on a Board of Investigation, should
include an awareness of legal rights, if not specific legal
expertise. It should also address the need for thorough fact
gathering, review of documents, and preservation of investigative
records. If Boards of Investigation were to include a trained
investigator and an outside member, the independence of the Boards
would be enhanced. If more expertise was brought into the Boards of
Investigation, there should be no need to allow members of the
Correctional Service who did not conduct the investigation to play a
role in reviewing, editing or otherwise having any kind of input
into the content of the final report.
Boards of Investigation are a readily
available mechanism by which the Correctional Service could
internally monitor its performance. It should be a prime concern for
the Service to examine its compliance with the law, and Boards of
Investigation should be instructed to seek legal advice if necessary
and report on any instance in which the Service exceeded its legal
authority.
3.4.1.2 Complaints
and grievances
I have insufficient information upon which
to comment on the entire complaints and grievances process within
the Correctional Service. The Correctional Investigator has
repeatedly made recommendations on this issue for years, and the
findings that I have made are consistent with his criticisms. On the
basis of the facts revealed by this inquiry, I am satisfied that as
a method of dispute resolution, the process has no chance of success
unless there is a significant change in the mindset of the
Correctional Service towards being prepared to admit error without
feeling that it is conceding defeat.
In the same way as in the case of Boards of
Investigation, the Service should view this process as an
opportunity to monitor its compliance with the law, and with its own
policies. Before readjusting the timeframes within which a response
to a complaint or grievance should be produced, the Correctional
Service should consider establishing a mechanism through which
complaints could be prioritized at the earliest possible
opportunity. Priority should obviously be given to complaints that
relate to an ongoing matter of a serious nature.
Where a complaint or grievance was well
founded when it was made, but requires no direct action at the time
of the response in light of a change in the circumstances which gave
rise to the complaint, the Service should recognize that the
complaint was valid and indicate to the inmate what measures, if
any, have been or will be taken to avoid the problem recurring.
I would assume that not many complaints
could realistically engage the potential civil or criminal liability
of the Correctional Service or some of its members. When this is the
case, the matter should be quickly identified as such, and could be
disposed of with the assistance of legal advice. Quick redress of an
error, or an early apology if redress is no longer an option, would
not only provide for a just disposition of a complaint or grievance,
but would be in the best interests of the Service in mitigating any
exposure it might have.
The worst possible scenario, of which this
case is a prime example, is to have a complaint and grievance
process which is so deficient, both in time and in substance, that
it becomes itself a source of further frustration and resentment. In
the new regional facilities, most of which are quite small,
innovative alternate dispute resolution techniques should be
experimented with. These should be geared towards the rapid
resolution of irritants, but most importantly, the reconciliation of
people.
3.4.2 External
mechanisms
3.4.2.1 The
Correctional Investigator
I have dealt in some detail with the role
played by the Correctional Investigator in this case. It is clear to
me that his statutory mandate should continue to be supported and
facilitated. Of all the outside observers of the Correctional
Service, the Correctional Investigator is in a unique position both
to assist in the resolution of individual problems, and to comment
publicly on the systemic shortcomings of the Service. Of all the
internal and external mechanisms or agencies designed to make the
Correctional Service open and accountable, the Office of the
Correctional Investigator is by far the most efficient and the best
equipped to discharge that function. It is only because of the
Correctional Investigator's inability to compel compliance by the
Service with his conclusions, and because of the demonstrated
unwillingness of the Service to do so willingly in many instances,
that I recommend greater access by prisoners to the courts for the
effective enforcement of their rights and the vindication of the
Rule of Law.
3.4.2.2 Other
outside agencies
(a)The
Citizens' Advisory Committee
I find it difficult in this case to say much
about the role of the Citizens' Advisory Committee in relation to
the Correctional Service in general. In light of the very active
presence of CAEFS in the Prison for Women, there was a certain
amount of duplication with the efforts of the CAC. I am hesitant to
conclude that this would be the same in other institutions. Even
where there is interaction of other external groups with the prison,
the CAC has an important role to play in linking the prison to the
community. The Correctional Service should resist pressures, from
whatever source, to chastise CAC members if they take a bona fide position in the course of their
functions, as did Dr. Bater in this case.
(b)The Canadian
Association of Elizabeth Fry Societies
The level of involvement of CAEFS, not only
in the events under investigation by this Commission, but in the
life of the Prison for Women in general is nothing short of
remarkable. One is hard pressed to think of other volunteer
organizations which exhibit the level and intensity of commitment
and dedication that Kim Pate, the Executive Director of CAEFS,
exhibited before this Commission. The involvement of CAEFS in the
daily operations of the prison was not always seen as a positive
influence by prison authorities, staff, and senior Correctional
Service management. Staff and prison officials testified that CAEFS'
involvement often contributed to a more adversarial interaction with
inmates. An example was given of CAEFS' intervention in support of
an inmate's request for a temporary absence pass before the Warden
had had an opportunity to consider the issue. In such case, should a
favourable decision be made, the credit would be seen as going to
CAEFS' intervention, as opposed to the independent willingness of
the prison authorities to be accommodating. The Commissioner himself
questioned the multiple roles played by CAEFS. In answer to these
concerns, CAEFS produced written submissions in which it
distinguishes between local Elizabeth Fry Societies and CAEFS, which
is the national umbrella organization. It is the local societies
which interact with the Correctional Service as occasional service
providers. CAEFS, on the other hand, defines its mandate as
essentially one of lobbying for the advancement of the interests of
women in conflict with the law.
It is difficult to anticipate how the
multiple functions of CAEFS and the local societies will be
discharged in practice in the new prisons, particularly in the small
ones, such as Truro or the Healing Lodge. Of all the outside
agencies interacting with the Correctional Service, in part to
ensure its accountability, CAEFS is the only one which is
specifically focused on women's issues. If only for that reason, it
should continue to play a predominant role in the advancement of
progressive policies in women's corrections. Its involvement in
operations, and the attendant discomfort that it may have
occasionally produced, may be attributable in part to a gender-based
culture which does not fit well within the Correctional Service.
Elizabeth Fry representatives who have worked at the Prison for
Women interact with both inmates and staff on a very personal level.
Their unconditional support of inmates, which is part of their
philosophy and mandate, may easily be seen as a breach of personal
trust by staff members with whom they have established a
relationship of personal mutual respect. I trust that the
appropriate level of comfort will be found by all involved in the
new regional prisons.
Having said that, I would favour a model
where operational decisions involving the management of individual
inmates, particularly but not only as they relate to security, are
firmly in the hands of the institutions, subject to the mechanisms
for strict enforcement of rights through the Correctional
Investigator, and legal counsel if access to the courts is
necessary. In that context, I agree with the comments made by
Marie-Andrèe Cyrenne that the ultimate responsibility in matters of
security and personal safety rests with the Correctional Service and
cannot be delegated. Such operational decisions should always be
open to scrutiny and review after the fact, but do not always lend
themselves to extensive consultations and negotiations beforehand. I
believe that it is in that sense that CAEFS' involvement in
operations may have caused concerns in the past and that CAEFS'
effectiveness would be enhanced if these types of interventions were
carefully considered.
(c)The Inmates'
counsel
There are not many lawyers who specialize in
correctional law. Many are based in Kingston, Ontario, where the
Correctional Law Project of the Faculty of Law of Queens University
also has had a long tradition of offering assistance to prisoners.
The closure of the Prison for Women and the opening of the new
regional facilities will deprive women of access to this base of
expertise. I would recommend that bar associations and defence
lawyers' organizations across the country who are engaging in
continuing legal education consider offering more training to their
members in correctional law. Aside from the rules governing the
computation of sentences, as the proceedings of this Commission have
illustrated, the law that essentially governs the treatment of
prisoners is not unduly complex. It is merely unduly difficult to
access for the uninitiated, and, unfortunately, also for those who
should be aware of it. Indeed, the myriad of rules, directives,
instructions and orders rest on a few well known principles of
criminal procedure and administrative law, such as the duty to act
fairly, the right to counsel and the concept of free and voluntary
consent. The legal profession could make a valuable educational
contribution in that regard. Improved access to legal principles
should improve compliance and improved awareness by counsel should
facilitate redress.
3.4.2.3
Miscellaneous measures
(a)Videotapes
of IERT interventions
In the course of these proceedings, a
consensus developed that all videotapes of interventions by the IERT
should be immediately sent to the Correctional Investigator. This
will be an effective way for the Correctional Investigator to
monitor the number of incidents in which the team is activated, and
to keep abreast of the manner in which it actually discharges its
functions.
3.5 Conclusion
In terms of general correctional issues, the
facts of this inquiry have revealed a disturbing lack of commitment
to the ideals of justice on the part of the Correctional Service. I
firmly believe that increased judicial supervision is required. The
two areas in which the Service has been the most delinquent are the
management of segregation and the administration of the grievance
process. In both areas, the deficiencies that the facts have
revealed were serious and detrimental to prisoners in every respect,
including in undermining their rehabilitative prospects. There is
nothing to suggest that the Service is either willing or able to
reform without judicial guidance and control.
4 .WOMEN'S
ISSUES
4.1 Federally
Sentenced Women - A Current
Profile
The public viewing of the IERT intervention
at the Prison for Women in April of 1994 will always serve as a
powerful reminder that this inquiry was, above anything else,
directed at the issue of the treatment of women prisoners.
The premise which underlies Creating Choices is 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. Before embarking
further upon making recommendations that are specific to women's
corrections, and which are based on the unique characteristics of
women in the correctional system, I wish to document briefly the
most pertinent features of women's criminality.
As an overview, I think it is fair to say
that women commit fewer crimes than men, and that the disproportion
is immense and has remained more or less historically constant.
Women commit fewer violent crimes than men, and even when they are
convicted of the same crime as a man, the factual underpinning of
the offence is often considerably different, and tends to point to a
much lower risk of re-offending. Women pose a lower security risk
than men. They have primary childcare responsibility in numbers
vastly disproportionate to male offenders.
Women interact with each other and with
correctional staff in ways that are different from men. I have heard
throughout this inquiry a number of observations to the effect that
women are often more verbal than men, including more verbally
abusive. During Phase II, I was struck by the repeated expression by
inmates of their need for support, from each other, as well as from
outside sources. Even more striking was the assertion of a need to
heal, as opposed to a need to repent, reform or even simply forget,
grow or move on. It is impossible for me to tell whether this
healing culture is unique to the Prison for Women, which has had in
recent years a strong psychology department, whether it is
attributable to a larger trend towards consciousness of
victimization, or whether it is more constantly rooted in gender.
To return to a comparison with male
offenders, it seems that women experience incarceration differently
than men. Self-abuse - slashing, is its most common form
- is the most dramatic example of that difference. It is
indicative of different needs and mental health issues.
Women also have served their sentences in
harsher conditions than men because of their small numbers. They
have suffered greater family dislocation than men, because there are
so few options for the imprisonment of women. They have been
over-classified or, in any event, they have been detained in a
facility that does not correspond to their classification. For the
same reasons, they have been offered fewer programs than men,
particularly in the case of women detained under protective custody
arrangements, of whom there are only a handful. They have had no
significant vocational training opportunities. Until the opening of
the new regional facilities, there were few opportunities for
transfer, and very little access to a true minimum security
institution. The only one, the Isabel McNeill House, opened in 1990,
accommodates only eleven women.
Most significantly, women offenders as a
group have a unique history of physical and sexual abuse.
Considerably more attention has been devoted to efforts to
rehabilitate male sexual offenders than to assist women offenders
whose own sexual abuse has never been addressed.
This overview is further illustrated by the
details and tables below.
4.1.1 Women in
crime
The most recent statistics available
indicate that men accounted for 88% of all persons charged in Canada
in 1994 (see Table 1). Eighty-seven percent of all charges for
violent offences were laid against men. Charges which were laid
against women were more likely to be for prostitution, or property
offences such as fraud or theft under $1,000.00
As of March, 1993, over three-quarters of
federally sentenced women in prison were serving their first
penitentiary sentence, that is, a sentence of more than two
years27 research has shown that
one-third of federally sentenced women have no previous conviction
of any kind.28 Of those with
previous convictions, offences tend to be for minor property
offences (e.g. using a cancelled credit card, false pretences)
or nuisance crimes (e.g. public mischief, causing a disturbance).
4.1.2 Social
histories
There is considerable overlap in the social
characteristics of men and women in prison, particularly with
respect to high levels of unemployment, low levels of education,
extensive family disruption, histories of alcohol and substance
abuse, and high rates of attempted suicide and depression29. Yet, some characteristics are unique
to women.
Since the release of Creating Choices and its supporting
documents,30 the significant social
characteristics of the federally sentenced women's population in
Canada have been well documented. The Survey
of Federally Sentenced Women revealed that, in addition to
characteristics they shared with men, two-thirds of federally
sentenced women are mothers, and 70% of these are single parents all
or part of the time; 68% of federally sentenced women were
physically abused, although this figure jumps to 90% for Aboriginal
women; 53% of federally sentenced women were sexually abused, and
61% of Aboriginal women were sexually abused; fewer than one-third
had any formal job qualifications beyond basic education prior to
sentence, and two-thirds had never had steady employment.31
For example, the female offender population
is younger, and more likely to have primary childcare
responsibilities. Women are far less likely than men to be charged
with most categories of crimes. As noted above, this difference is
particularly striking in the context of violent offences. Only 2% of
charges for sexual assault and 3% of charges for other sexual
offences were laid against women. There are 14,500 men and 323 women
serving federal sentences in Canada: 1,743 men and 60 women are
serving sentences for homicide; 3,463 men and 56 women are serving
sentences for robbery; and 1,287 men and 68 women are serving
sentences for drug-related offences.32 The male to female ratio of most
crimes of violence and most traditionally "male" crimes, such as
break and enter, robbery, car theft and offensive weapons, has
remained high since the early 1960's.33
In addition, the context of those offences
involving serious violence must be highlighted. Shaw's research
found that almost all of the victims who were killed by federally
sentenced women were known to the women: in 38% of the cases, the
victim was a husband, common-law partner or relative, and in 49% of
the cases, the victims were close friends or acquaintances. Killing
often occurred in the context of long histories of abuse by
partners, or in self-defence during arguments or fights. Only 5% (4
victims) were strangers.34 In
contrast, men are less likely to kill immediate family members or
friends, but twice as likely to kill someone during the commission
of another criminal act.35 Shaw
draws the following conclusion about federally sentenced women in
Canada:
On the whole... such women pose
the least risk on release. The majority have been sentenced for
murder, or for trafficking or importing drugs. The likelihood that
the great majority of them would become involved in subsequent
violence or offending is remote... Women tend to have lower
likelihood of reconviction than men and, if reconvicted, to be
charged with less serious offences. In addition, the chances of not
being reconvicted on release for both men and women are higher among
those convicted of murder, drug-offences and manslaughter than for
other offences.36
4.1.3 Has there
been an increase in women's involvement in crime?
There has been periodic emphasis and concern
over an apparent increase in women's involvement in crime,
particularly violent crime, in the last few decades.37 The conclusions are conflicting and
complicated by the fact that dealing with small numbers of women
artificially inflates any real increase when simple percentages are
employed. For example, one additional federally sentenced woman
incarcerated for sexual assault would represent a 100% increase in
the total number of women in federal custody for such offences, as
there is currently only one. The bare percentages often have a
tendency to mislead.
At the same time, most sources of official
crime statistics suggest that there has been an increase in women's
involvement in the criminal justice system.38 However, Chunn and Gavigan have noted
that there is little evidence that there has been a significant
increase in the amount of violence committed by women. While there
has been an increase in the recorded amount of crime by women since
the 1950's, economic crimes (e.g. shoplifting and fraud) and
liquor-related offences contributed most to the overall increase.
Between 1975 and 1984, there was only a slight increase, or even a
decrease, in the rates for murder, attempted murder, manslaughter
and infanticide. Self-report and victimization studies similarly
indicate that, while much criminal activity on the part of both men
and women goes undetected, women nevertheless commit fewer and less
serious crimes than men.39
There has been additional concern over the
increase in the population of federally sentenced women in prison.
While women have represented roughly 2% of the federally sentenced
population since the mid-1970's, the rate of imprisonment for female
offenders has increased since 1975.40 Shaw reports that in 1975, there were
174 federally sentenced women in prison.41 By 1989, the number of federally
sentenced women in prison had risen to 273 and to 322 by September
of 1995. Fears have been expressed by many, including Correctional
Service representatives during Phase II of these proceedings, that
there could be a further increase in the number of women who will
receive a federal sentence as the Prison for Women closes. In
marginal cases, where the appropriate range for the sentence is
somewhere around the two year mark, judges may be inclined to
sentence women to the federal system simply because the new
facilities have raised such high levels of expectation about their
rehabilitative prospects.
Almost two-thirds of women in prison in 1975
and in 1984 were serving terms of between two and five years, and
10% were serving sentences of 10 years or more, including life
sentences.42 However, sentence
length among women has increased: in 1995, 49% of federally
sentenced women were serving terms of between two and five years,
while 24% were serving sentences of 10 years or more. Fully 19% are
serving life terms (see Table 2).
The apparent increase in the number of women
in conflict with the law should be interpreted with caution. While
it is possible that there has been a real increase in the amount of
crime committed by women, official statistics on crime reflect
reporting behaviour by the public and enforcement practices by the
police. There may have been an increase in both the public's
willingness to report crimes perpetrated by women, as well as an
increase in the police tendency to charge women.
Changes in the population of federally
sentenced women in prison likely reflect changes in sentencing
patterns and release decisions.43
The greater proportion of women serving very long sentences mirrors,
to some extent, changes in the mandatory sentences for first and
second degree murder, and not necessarily an increase in the number
of women committing these crimes. The increase in the proportion of
women in prison for offences involving violence may reflect longer
sentences being handed down44 at the
same time that fewer women are being released.
As of September, 1995, there were 619
federally sentenced women in Canada. Over half (322) were in
custody, and the rest were under supervision in the community. Of
the federally sentenced women in custody, the largest proportion
(42%) were in the Prison for Women, followed by the Prairie Region
(26%) (see Table 3). Half of the women in custody in the Prairie
Region are Aboriginal women. There were four federally sentenced
women in custody in the Atlantic Region. Table 4 shows the offences
for which federally sentenced women in custody are convicted.
Margaret Shaw characterized the context of
federally sentenced women as follows:
In summing up the picture which
emerges from this review of the offending histories and life
experiences of the federal population, it is clear, firstly, that
they do not constitute a dangerous and violent group of women from
whom society needs above all to be protected... . Secondly, there
would appear to be considerable need for, and scope to develop
alternative sentencing structures which place far more emphasis on
constructively assessing the circumstances of the women involved,
and far less on negative and largely punitive responses.45
The events under scrutiny by this inquiry
have focused on inmates that have been described by the Correctional
Service as the most dangerous women in Canada. We are talking, of
course, about a handful of people. Even assuming their dangerousness
to be as assessed by the Correctional Service, many of these women
have interacted with the Commission staff and the various
participants in Phase II in the most appropriate fashion. All were
eventually released from segregation, back into the general
population. Some have already been released from prison altogether,
and others are to follow in the not too distant future. Sadly, for
many, their time in prison, even with the little it has to offer,
was an opportunity to be sheltered from abusive relationships, the
devastation of life on the streets while under the influence of
alcohol or drugs, and the repeated inability to make reasonable
decisions about their own lives. It offered the company, and often
the support and friendship of other women. It should also offer some
opportunity to reflect and to learn.
4.2 Cross-gender
Staffing
4.2.1 The role of
male staff in women's prisons
The deployment of an all-male Institutional
Emergency Response Team at the Prison for Women, which was at the
heart of this inquiry, has raised the broader issue of what role, if
any, male correctional staff should have in women's prisons. The
decision by the Correctional Service of Canada to hire men to work
in living units at the new regional prisons, came under attack in
the Phase II consultations, and the parties were very much at odds
on the issue.
There is a long history of men working in
women's prisons in Canada.46 In the
earliest days of women's imprisonment, conditions were such that
women offenders were jailed not only within the same institutions as
men but, as Strange47 has pointed
out, often in the same cells. There was a lack of public concern for
the conditions of imprisonment for both men and women, and no
correctional philosophy which recognized women as having different
social and personal needs from men.
Women began to be housed in separate prison
units in the late eighteenth century,48 although it wasn't until the opening
of the Andrew Mercer Reformatory for Females in 1880 that a
correctional philosophy emerged which identified the need to put
women in separate prisons.49 While
this institution was staffed exclusively by women, it was more
commonly the case that men remained as wardens, supervisors and
guards.50 As Zupan states, "more
often than not, women prisoners suffered at the hands of their male
keepers."51
The rationale for separating the sexes
ultimately emerged as one of protecting women from sexual abuse and
exploitation by men52 and providing
"fallen" women with positive role models.53
TABLE 1
PERSONS CHARGED1 BY GENDER, SELECTED
INCIDENTS, 1994
![Table 1: Persons charged by gender, selected incidents, 1994](/web/20061026013841im_/http://ww2.psepc-sppcc.gc.ca/_images/english/corrections/199681Table1_e.gif)
1 Represents all
persons charged in Canada, Uniform Crime Reporting Survey, Canadian
Centre for Justice Statistics. 2 Homicide Survey, Canadian Centre for Justice
Statistics
Source:
Statistics Canada. "Canadian Crime Statistics, 1994." Juristat 15(2). Ottawa: Canadian Centre for
Justice Statistics, 1995
TABLE 2
SENTENCE LENGTH OF
INCARCERATED FEDERALLY SENTENCED WOMEN
Source: Correctional Service of
Canada. (1995) Profile of Federally
Sentenced Women.
Ottawa: Correctional Service of Canada
TABLE 3
CURRENT REGION &
INSTITUTION OF INCARCERATED FEDERALLY SENTENCED WOMEN
![Table 3: Current region & institution of incarcerated federally sentenced women](/web/20061026013841im_/http://ww2.psepc-sppcc.gc.ca/_images/english/corrections/199681Table3_e.gif) * Includes 28 foreign nationals Source: Correctional Service of Canada. (1995)
Profile of Federally Sentenced Women.
Ottawa: Correctional Service of
Canada
TABLE 4
OFFENCES* OF FEDERALLY
SENTENCED WOMEN IN CUSTODY
*The data reflects the number of all offences for which incarcerated
federally sentenced women are convicted as of October, 1995, i.e. if
a federally sentenced woman is serving a sentence for manslaughter
as well as trafficking, she is counted in each of those offence
categories.
Source: Correctional Service of Canada
(1995) Profile of Federally Sentenced
Women.
Ottawa: Correctional Service of Canada
Much of the published literature on
cross-gender staffing is concerned with the role of female
correctional officers in male prisons.54 This might reflect the fact that this
is historically a more anomalous situation than the role of male
guards in women's prisons. While women have been successfully
employed as front-line workers in male prisons in Canada since the
late 1970's,55 this practice was not
without challenges. These included questions about whether women
correctional officers were "capable", physically and emotionally, of
working on the front-lines in men's prisons, and whether they were
able to provide adequate back-up to their male colleagues in
crises.56 Women correctional
officers have performed well in all of these functions,57 and are even said to have a "calming"
or "normalizing" effect on an often tense environment,58 but they continue to experience
harassment and discrimination in the prison workplace.59
The concerns of male inmates for privacy
remain, particularly during frisk or strip searches, or during
showers or the use of the toilet. The matter has been dealt with by
the Supreme Court of Canada, which upheld the employment of women as
front-line workers in correctional facilities for men (Conway v. Canada, [1993] 2 S.C.R 872).
There already exists a wide variety of
arrangements for male staff working in women's prisons in Canada,
particularly in management (as Wardens or Deputy Wardens), service
providers (for example, as teachers or health professionals) and in
positions of institutional maintenance. It is doubtful whether there
are any women's prisons in Canada where men are not employed in some
capacity. In many provincial correctional facilities for women, men
are employed as front-line staff. McMahon reports that at the end of
1992, 34% of the correctional officers at Vanier Centre for Women in
Brampton, Ontario, were male.60 In
the United States, the proportions of male correctional officers in
women's prisons is, at least in Colorado, as high as 81%.61
At the Prison for Women, male staff had been
restricted, until 1989, from the supervision of women inmates in the
living units. As Unit Managers, they encountered inmates either in
the Unit Manager's office or, less frequently, when doing their
rounds. When entering the living units, male Unit Managers were
always announced and accompanied by a female Correctional Officer.
Correctional Supervisors, who reported to the Unit Managers, had
responsibilities for supervising many of the activities in the
living units including the patrolling of units and shower areas, and
the frisking or strip searching of inmates. The job of Correctional
Supervisor was restricted to women. Other male Correctional Officers
at the Prison for Women were restricted to perimeter security and
only brought into the living units in emergency situations.
In 1989 an appeal to the Public Service
Commission ended the practice of restricting the position of
Correctional Supervisor to women (Re Public
Service Employment Act, s.21 (King v. Canada (Correctional
Service)), unreported, July 5, 1989 (Public Service Commission
Appeal Board)). The Public Service Commission held that the
positions must be open to males since being female was not a bona fide requirement of fulfilling the
responsibilities of the job, as the job did not require the employee
to search women inmates or to be present when they were being
searched. The Public Service Commission was of the view that the job
required only that the Correctional Supervisor ensure that such
activities were carried out by female Correctional Officers.
4.2.2 Why should
men work in women's prisons?
Two arguments are frequently asserted in
support of the employment of men in women's institutions. They are
similar to those which paved the way for women to work as line staff
in male prisons: equality of opportunity, and the "normalizing"
effect.
It is argued that cross-gender staffing
provides a proper workplace environment of equal employment
opportunities for women and men in the correctional system. Hiring
decisions are then based on the candidates' qualifications, rather
than on gender. Just as women have been shown to be competent to
work in the front lines of men's prisons, men are seen as capable of
working in the front lines of women's prisons.
Some studies identify the second ground for
male employment: the "normalizing" effect that men can have in
women's prisons.62 This is seen as
particularly important as most women inmates, once released back
into the community, have to interact with men in many
capacities.63 Others have asserted
that positive male role models could result in a beneficial,
constructive, learning experience, particularly for women whose
relationships with men have often been characterized by exploitation
and abuse. In addition, it is frequently pointed out that
cross-gender staffing occurs in prisons in many countries around the
world.
4.2.3 Views of the
inmates on men guarding women in prison
The Commission, in its Phase II
consultations, devoted an entire day to the issue of cross-gender
staffing.
There was no unanimity on the issue of
whether or not cross-gender staffing is beneficial and acceptable to
inmates. This was consistent with one survey of federally sentenced
women in Canada, conducted for the Task Force on Federally Sentenced
Women, which reported a "divergence" of opinion among prisoners:
Only around a third of women at
Prison for Women would want to see (more) male guards there,
compared with almost two thirds of those in the provinces. For the
most part women in the Prison for Women did not think it appropriate
to have male guards either for reasons of privacy, or because many
women had experienced abuse from men.64
It would appear from that survey that
although they also expressed privacy concerns, women in provincial
prisons, where male front-line staff are often employed, were more
receptive to their presence.
There have been a number of informal
"surveys" of the views of federally sentenced women. None appear to
me to be comprehensive, systematic or reported in a way which
permits drawing clear conclusions about the views of women inmates.
In broader terms, gender inequality is seen
by many as something which is inevitably imported into the prison
environment and then exacerbated by prison conditions. As Harriet
Sachs, representing Women's Legal Education and Action Fund (LEAF)
stated during the policy consultations:
We have an imbalance of power
that exists by virtue of the gender rules between men and women, and
that imbalance of power gets exacerbated in a correctional
environment... we have to keep that context in mind.65
4.2.4 The problem
for women with histories of abuse by men
Both LEAF and CAEFS, in their written
submissions, expressed the view that the apprehensions of women
prisoners about male guards are amplified by personal histories of
physical and sexual abuse. These issues transcend the anxieties of
prisoners over privacy. They extend to the nature of the
relationship between men and the women who have suffered abuse at
the hands of men. A number of the inmates expressed concerns that
having men as their primary workers in the regional facilities would
interfere with their treatment and their efforts to cope with past
histories of abuse by men. One said:
I do not want to sit down and
discuss my personal issues, my intimate issues, my sexual abuse
background, my rapes or anything face-to-face with men. I don't care
if he's a male doctor, a male psychiatrist or a male psychologist, I
do not want to speak to a man about what has happened to me by men
in my background. And that goes to normalizing.66
Indeed, The Task Force on Federally
Sentenced Women recommended against hiring men as the primary
workers in the regional facilities, largely as a result of women
inmates' past:
Based on these realities,
hiring male staff to be the primary support for women in their
day-to-day living situation would be counterproductive to the
encouragement of increased self-esteem and independence. In
addition, the hiring of male staff for such positions could
interfere with the healing process for those who have survived
physical, sexual and/or psychological abuse.67
The inherent conflict between the role of
correctional officers as security guards and their roles as
supporters and counsellors is sharpened when the gender relations of
inmates has been one of abuse:
The CX staff, in particular,
you hear that term: Well, he's a nice guy. Well, you've got the nice
guy/bad guy syndrome because he's a nice guy when everything is
going okay, but all of a sudden, if something happens in the
institution, and there's a male that's needed, he becomes the bad
guy, he becomes the aggressor, he becomes the intimidator, he
becomes the force, he becomes the muscle.68
LEAF also pointed to problems with the
"normalization" hypothesis:
LEAF submits that
normalization' is a misleading term because it replicates and
reinforces injury to women in our current sex-unequal society. Given
the unique power imbalances in the guard-inmate relationship, as
well as the preponderance of abuse histories among federally
sentenced women, LEAF submits that the prison setting may require
measures which do not replicate those in the outside, normal'
society.69
While few parties in the Phase II
consultations advocated the complete prohibition of men from
employment in the regional facilities, for a small number, the
problems with men filling even administrative and managerial roles
were a concern.
4.2.5 Accounting
for the behaviour of male staff
A number of participants expressed
additional concern over the need for safeguards to protect women
from sexual abuse or harassment, and for viable mechanisms of
redress for women inmates. Marie-Andrèe Cyrenne, Warden of Joliette,
pointed to the internal and external mechanisms for dispute
resolution and for monitoring the actions of correctional workers.
On behalf of the Correctional Service of Canada, she expressed the
view that the Correctional Investigator, CAEFS and the Citizens'
Advisory Committee, along with the service providers such as nurses
and psychologists, can serve as external checks on correctional
workers. It is the view of the Service that when these are included
with the internal mechanisms of the grievance procedures, action by
Inmate Committees, and a zero tolerance policy with respect to
sexual harassment, there are sufficient checks in place.
Despite the existence of formal mechanisms
for behavioural accountability, the Phase II consultations
showed that there are still concerns about the need for explicit and
effective sexual harassment policies for correctional staff, to
govern their interaction not only with other staff members but also
with inmates. As Marie-Andrèe Bertrand pointed out, sexual
harassment policies are very common in many institutions, since
complaints of sexual harassment are recognized as having a very
different dimension than most other types of grievances.
4.2.6 The
positions of the parties
In their written submission to the
Commission, the Correctional Investigator and CAEFS outlined their
support for the United Nations' Standard
Minimum Rules for the Treatment of Prisoners on the issue of
cross-gender staffing:
53(2) No male member of the
staff shall enter the part of the institution set aside for women
unless accompanied by a woman officer.
(3) Women prisoners shall be
attended and supervised only by women officers. This does not,
however, preclude male members of the staff, particularly doctors
and teachers, from carrying out their professional duties in
institutions or parts of institutions set aside for women.
The Correctional Service has recently lifted
its restrictions on male employment in women's prisons -
a move wholly supported by the Union of the Solicitor General
Employees. Specifically, the Service has decided that men can fill
the roles of Primary Workers in the regional facilities, including
the supervision of women inmates in their living units. The
Correctional Service arrived at this decision for a number of
reasons.
First and foremost, the Correctional Service
asserts that the Public Service Employment
Act, R.S.C. 1985, c.P-33, requires it to open competition to
men. Using the terms employed by the Union, the "merit principle"
requires that, for all positions which become vacant, "a competition
is run, staff are allowed to apply for it and the person who is the
most meritorious is offered the position".70
The Correctional Service also takes the
position that women inmates are not necessarily opposed to male
front-line workers, as long as their privacy is respected and that
all staff act professionally.
The Service has also argued that many
countries across the world have male front-line workers in women's
prisons, and that men can serve to "normalize" the prison
environment. This could be particularly true, according to
Marie-Andrèe Cyrenne, when women have the opportunity to interact in
a significant way with men who are not abusive, and who demonstrate
respect for women:
I believe that federally
sentenced women need male role models. I acknowledge, and the
Correctional Service acknowledges, that they have indeed lived, and
carried a heavy burden of abuse. I believe that we recognize this.
They need men capable of serving as more positive role models. In
any case, they will have to live in the outside world... To reflect
society, it is necessary to have positive male role models at every
level.71 (Translation)
More important than the gender of the
front-line staff, according to the Correctional Service, is the type
of person, and the qualities and experience brought to the job. In
rejecting a gender-restricted selection process, the Service and
others hold the view that abuse of power can occur by both males and
females employed in women's prisons:
Men in positions of authority,
men who may abuse that authority, are in the spotlight. However, one
must admit that some women do so also... When one talks of
selection, training and how to maintain a professional distance, one
must establish this with the men as well as the women who will work
in the new institutions.72
(Translation)
To address these concerns, the selection
criteria for the hiring of staff at the new regional facilities are
based on: a demonstrated sensitivity to and awareness of women's
issues; professionalism; and, an ability to work in a woman-centred
environment.
Similarly, training for male and female
staff at the new facilities will be the same, and emphasize the
philosophies outlined in Creating
Choices.
4.2.7 Equal
opportunity in prison jobs
The employment opportunities of female
correctional officers are also affected if men are barred from
working on the front-lines in women's prisons. A restrictive policy
of this nature reinforces the historical imbalance of gender
relations. Men continue to dominate the supervisory and management
positions. This is exemplified at the Prison for Women, where male
correctional workers enter the front-line staff at a supervisory
level (i.e. as Correctional Supervisor), but are excluded from lower
front-line positions.
The unique woman-centred philosophy of the
regional facilities, and the special selection and training
processes for their staff, may limit the flexibility of correctional
staff in looking for new jobs or promotions. Opportunities to
transfer out of the regional facilities to male prisons may be more
difficult. The job barriers for female correctional officers will
affect them adversely if it is only they who are to work on the
front-lines in the regional facilities. These barriers will be in
addition to others women face in realizing a fully integrated role
in the larger correctional workforce.
4.2.8 The problem
of privacy
The protection of privacy of the men and
women in prisons is central to the concerns prisoners may have about
cross-gender staffing. While it may be reasonable to expect a
considerable reduction in the personal privacy experienced by
prisoners (Conway, supra), privacy is
nevertheless part of a legal framework which requires protection of
the dignity of individuals, even when they are incarcerated.
There are important ways in which prisons
for men and women have accommodated the privacy concerns of inmates,
regardless of the gender of the front-line staff. Living units can
be designed with barriers or curtains, to create visual impediments
to others when inmates are showering, using the toilet or dressing
and undressing. Many new prisons include these in their designs,
while older ones can be retrofitted to accommodate privacy
considerations.73 In cases where
inmates are supervised by officers of the opposite sex,
modifications can be made to staffing protocols so that, for
example, male front-line workers are always paired with female
front-line workers when patrolling living units. Male staff can be
restricted from patrolling living units at night, in which case
management may have to maintain a reasonable ratio of male-to-female
front-line staff, particularly in the very small institutions.
Special requirements might be placed on male officers, such as the
requirement to announce their presence on a living unit or at an
individual cell. For inmates, the reciprocal requirement is that
they be appropriately clothed when in common areas.
4.2.9
Conclusion
The issue of male employment in female
prisons is a complex one and not amenable to a single, over-riding
formula. While barring male correctional officers from the
front-lines in women's prisons would help to preserve the privacy of
women in prison, and protect them from sexual harassment by male
correctional workers, it could have other, undesirable effects.
Women inmates in this kind of environment are likely only to
interact with men in positions of management, authority and
expertise. If men are prohibited from working in the living units,
the only way to avoid unbalanced contact of this kind is to prohibit
men completely from working in women's prisons--a position few would
support.
As for the normalization argument, it is
also problematic. Our society does not tolerate the presence of
non-intimate members of the opposite sex during the performance of
private functions, except under very rare circumstances, such as
during hospitalization. The abnormality of this situation is, in
fact, heightened by the prison setting, where both female and male
inmates are confined against their will in positions of relative
powerlessness.
With respect to the privacy issue, much
depends on the redesign of prison accommodations and on broadening
the physical freedom of movement allowed inmates. When the new
regional facilities for women prisoners are fully operational, the
accommodations will be in cottage-like units, which allow privacy in
the bathroom and bedroom areas. However, the success of this design
will depend ultimately on the privacy protocols for staff and on the
quality of the selection and training process.
I wish to stress the fact that the problems
that may arise from men abusing their authority over women prisoners
are real. They are serious problems and the consequences of such
abuse can be disastrous. There have been examples of these problems
for inmates, as well as for staff and management, in that respect.
In particular, the Report of the British
Columbia Royal Commission on the Incarcerated Female
Offenders74 is instructive about
the range of allegations of sexual abuse, and the difficulty in
resolving them. The reluctance of women in reporting sexual abuse
can only be exacerbated in a prison environment where a perceived
lack of adequate recourse and fear of reprisal would discourage
disclosure. The denial of the credibility of prisoners by prison
staff, demonstrated throughout this inquiry, may also foster
cynicism and despair among women with a history of tolerated abuse.
On balance, however, I am not persuaded that
the Correctional Service staffing policy should be interfered with
at this stage. In my view, the key to the success of gender
integration in the living units of correctional facilities for women
lies in staff selection and training, explicit working protocols and
adequate monitoring. Based on the material presented to me, I am
satisfied with the selection and training process for the new
facilities. I am concerned, however, that the same process not be
dismantled after the hiring of the first group of staff for the new
facilities. Again, because the numbers are so small there is a risk
that replacement staff in the years to come may not receive the
intensive training that has characterized the start-up phase of the
operations.
I would therefore regard it as essential
that a plan be developed for the on-going training of new recruits
brought into the institutions for women prisoners. There should also
be refresher programs specially designed to keep alive the
correctional philosophy which inspired Creating Choices.
I view it as equally essential that the
sexual harassment policy of the Correctional Service be extended to
apply to inmates and that a protocol for men's interaction with
women prisoners in the living unit be promulgated, specific to each
institution. In keeping with the recommendation made later in this
report, this should be done under the supervision of the Deputy
Commissioner for Women.
Finally, in light of the breakdown in the
existing accountability mechanisms which were revealed during this
inquiry, and in light of the innovative yet dangerous practice of
integrating correctional officers at all levels of the staffing of
the new institutions, I believe that an exceptional form of
monitoring is called for, at least at the outset of this new regime,
if not permanently.
I will therefore recommend that a woman be
appointed to monitor and report annually, for the next three years,
to the Deputy Commissioner for Women (a position I describe below)
on the implementation of the cross-gender staffing policy in the
living units of the new institutions, and on similar issues found in
any institutions in which federally sentenced women may be housed
during that time. The Monitor should be a person independent from
the Correctional Service; she should have access to inmates and
staff on a confidential basis as her mandate should be to assess the
system, rather than the individuals, and to make recommendations
accordingly.
Finally, and I see this recommendation as
central to my support of the present Correctional Service
initiative, there should be sufficient diversity in the system to
allow some women to serve their sentences in institutions in which
there are no men working as front-line correctional officers, and
where access to women health care professionals is possible. This
may be achieved within the federal structure or, if necessary,
through exchange of service agreements with the provinces. I can see
no imperative, legal or otherwise, that all facilities for women be
uniform in every respect. I think that it is a simple point that
some women offenders require shelter from fear, and they should be
able to find it even while incarcerated. Despite their small
numbers, women prisoners are entitled to be incarcerated in
conditions that meet their basic human needs. Women should be
detained in an environment not only safe from on-going abuse but
perceived as such; this requires a variety of options. I recognize
that this may imply geographic and other forms of compromise, and I
do not want to suggest that the preference of every prisoner for a
particular staffing model must always be accommodated. I simply
conclude that there should necessarily be enough flexibility in the
correctional structure for women to have all their fundamental needs
addressed, including the need to be and to feel safe.
4.3 Aboriginal Women and The Healing
Lodge
4.3.1 How the
Healing Lodge came into being
If the history of women's imprisonment is
one of neglect and indifference, it will come as no surprise that
the history of Aboriginal women's imprisonment is an exaggeration of
the same.
The recently opened Healing Lodge for
Aboriginal women, located on the Nekaneet Reserve outside Maple
Creek, Saskatchewan is probably one of the most progressive steps
ever taken by the Correctional Service. The fact that it was
initiated to meet the needs of the most disadvantaged, and therefore
the most deserving, group of prisoners in Canada, contains the
promise that small numbers will no longer be an excuse for neglect.
Qualitative program reforms of this kind, if
taken to their mature potential, could revolutionize correctional
care for women prisoners and greatly assist their return to
community life. Eventually, the success of progressive initiatives
in women's corrections, where the needs are high and the risks and
costs are low, may serve as a blueprint for initiatives adapted to
male offenders.
The recommendation for a Healing Lodge for
federally sentenced Aboriginal women arose from the deliberations of
the Task Force on Federally Sentenced Women which proposed that the
Healing Lodge replace the Prison for Women for federally sentenced
Aboriginal women. The intention is that Aboriginal women inmates
will be provided with meaningful opportunities in a culturally
relevant environment inside and outside the correctional setting.
The Healing Lodge will address many of the identified needs of the
most disadvantaged and marginalized prison population in Canada. The
acceptance of the recommendation and the construction of the Healing
Lodge was a major breakthrough in the reform of women's prison
conditions, and the Correctional Service of Canada is to be
commended for implementing it.
4.3.2 The needs
that led to the creation of a Healing Lodge
The policy and program decisions which made
possible the establishment of a special institution adapted to the
needs of Aboriginal women prisoners are founded on the recognition
of six problems and the need to resolve them:
- Aboriginal women are over-represented in
the prison population of Canada.
- They are quite distinct culturally,
linguistically and socially from the broader prison population of
federally sentenced women.
- They have significantly different
personal and social histories.
- They have significantly different
offending histories.
- The dispersion of Aboriginal communities
across the country is a special burden to them.
- The holistic approach to healing and
reintegration into the community is at odds with the cultures and
philosophies of conventional prison environments.
It was of particular interest to me that the
distinctive features of a group of women prisoners could be used as
a positive force for change. They provide valuable lessons in the
design of programs for other groups of prisoners, both male and
female.
4.3.3
Over-representation in the prison population
The over-representation of Aboriginal women
in Canada's prisons, and the way in which they experience
incarceration has to be a matter of considerable concern for public
policy. When compared to their proportion of the general population,
Aboriginal people of both sexes in Canada are over-represented in
prisons, at the federal, provincial and territorial levels. This
fact has been well documented by earlier inquiries and task
forces.75 While Aboriginal people
comprise approximately 3% of the population in Canada, they
represent roughly 10% of the federally sentenced prison population.
As Michael Jackson has noted:
... native people come into
contact with Canada's correctional system in numbers grossly
disproportionate to their representation in the community. More than
any other group in Canada they are subject to the damaging impacts
of the criminal justice system's heaviest sanctions.76
The problem is not evenly distributed:
over-representation is generally higher in provincial institutions
than in federal penitentiaries, in the west and among Aboriginal
women and juvenile offenders.77
As of September, 1995, Aboriginal women
comprised just over 13% of federally sentenced women overall.
However, they comprised 19% of the population of federally sentenced
women in prison, and only 7% of federally sentenced women in the
community. Seventy-three percent of federally sentenced Aboriginal
women were in prison, while only 49% of the non-Aboriginal federally
sentenced women were in prison. While there are no federally
sentenced Aboriginal women in prison in Newfoundland or in Quebec,
50% of federally sentenced women in prison in the Prairies and 24%
of federally sentenced women in prison in British Columbia were
Aboriginal women.78
4.3.4 Cultural,
linguistic and social distinctions from the broader prison
population
Aboriginal women are, in many ways, quite
distinct culturally, linguistically, socially, and in their personal
histories from the broader population of federally sentenced women.
While diversity also exists among Aboriginal women, those who are
federally sentenced have much more in common by virtue of their
background than other women prisoners. In their survey of federally
sentenced Aboriginal women in the community, Sugar and Fox state:
The starting point for action
lies not in abstract discussions but in the experiences of the women
themselves. An essential recognition: prison and release from prison
are not the starting point. As our stories show, Aboriginal women
who end up in prison grow up in prison, though the prisons in which
they grow up are not the ones to which they are sentenced under the
law.79
Federally sentenced Aboriginal women have
significantly different personal and social histories in a number of
ways. The social and economic marginalization of Aboriginal people,
particularly status Indians living off-reserve, is acute among
Aboriginal women. The relationship of this marginalization to the
criminal justice system has been well documented.80 As a group, Aboriginal women come to
prison at a younger age than non-Aboriginal women.81 They generally have lower levels of
education and employment.82 Alcohol
and drug abuse is a greater problem for them83 and is reported to have played a
greater role in their offending.84
They also have a greater incidence of past physical and sexual
abuse.85
These problems have been embedded and hidden
within a penal environment which is at odds with many Aboriginal
cultures. Until the recent reforms, the Correctional Service was
unable to respond to the needs of Aboriginal women which have their
roots in a distinct social environment.
4.3.5 Differences
in offending histories
The criminal justice histories of Aboriginal
women also stand out as different in significant ways from those of
other women prisoners. They tend to have more previous admissions
and incarcerations than non-Aboriginal women in prison.86 While Aboriginal women tend to be
serving shorter sentences, both provincially87 and federally88 they tend to be in prison for more
violent offences.89
The greater incidence of previous
incarcerations and violence in their offences creates the setting
for a higher security classification and risk assessment for
federally sentenced Aboriginal women. This is heightened by the
tensions and misunderstandings between Aboriginal cultures and that
of criminal justice and penal settings.
And personally, I have seen a
lot of Native women ... pass away because of the lack of
communication... that's a very big problem with our Native
population as it stands. And I would like to see more ...
understanding with our Aboriginal upbringing... It has a lot of
impact in our adulthood.90
4.3.6 The
dispersion of Aboriginal communities across Canada
A major theme of the history of women's
imprisonment in Canada has been the enormous geographic dislocation
to prisoners and their families as a result of federal sentences
served in a centralized institution. The dispersion of Aboriginal
communities across the country affects women from these communities
to an even greater extent. Aboriginal women are more likely to be
mothers of young children and, on average, have more children at the
time of their offending. The dislocation and isolation of
imprisonment is worsened by the difficulties encountered by
relatives who have to travel from distant, often remote communities,
to visit their mothers, daughters and sisters.
4.3.7 The holistic
approach is at odds with conventional reform
practices
There has been a great deal of public
discussion of the differences between conventional and Aboriginal
approaches to social and psychological health. I think it is
important that these differences be recognized and that the
legitimacy of Aboriginal practices also be recognized and employed
in correctional philosophies and programs.
The holistic, community-oriented approach to
healing used by Aboriginal people does not fit easily into Western
cultures and their penal environments. The reliance on elders,
ceremonies (such as sweat lodges and sweetgrass ceremonies) and the
use of traditional medicines for spiritual guidance has been
historically excluded from correctional settings.
Cultural alienation in the correctional
environment has a damaging impact on assessments for classification
and risk, particularly in the context of the clinical assessment of
risk.
For Aboriginal women, prison is
an extension of life on the outside, and because of this it is
impossible for us to heal there. In ways that are different from the
world outside, but are nevertheless continuous with it, prisons
offer more white authority that is sexist, racist and violent.
Prisons are then one more focus for the pain and rage we carry. For
us, prison rules have the same illegitimacy as the oppressive rules
under which we grew up. Those few "helping" services in prison that
are intended to heal are delivered in ways that are culturally
inappropriate to us as women and as Aboriginal people. Physicians,
psychiatrists, and psychologists are typically white and male. How
can we be healed by those who symbolize the worst experiences of our
past? We cannot trust these so-called care givers, and all too often
in the views of those interviewed, we again experience direct
hostility from the very people who are supposedly there to help.
This is why Aboriginal women express anger at these care givers.
This is why we refuse to become involved, and then are further
punished because we fail to seek treatment.91
The problems created by this fundamental
tension between cultural experience and correctional programs is
felt most on the release from prison. The chances of being able to
plan for successful reintegration into the community are minimal in
many cases. Many Aboriginal women cannot return immediately to their
home communities, for a variety of reasons. Due to the nature of the
offence, or the complex relationships among the victims and
offenders in small, often isolated communities, the communities
themselves are often unwilling to accept offenders back after their
release from prison.
Aboriginal women live daily
with the general factors encountered by Aboriginal people but also
must deal with the sexism inherent in the large and their own
communities. For federally sentenced women, there is the further
stigma of being offenders. Aboriginal communities tend to experience
difficulty in supporting women offenders and have rejected or
ignored the women. The essential community services a women may
require in adjusting to post-prison life may not be readily
available.92
In cases where the community may be more
supportive, return is often unrealistic. It is often those very
communities where Aboriginal women experienced extensive abuse and
trauma, and where their former abusers continue to reside. In
addition, however, Patricia Monture has pointed out that the
communities themselves do not have the structural supports, in terms
of jobs, housing or programs, to accommodate the high needs of
Aboriginal women released from prison.
... not only do we have
communities that are in bigger need than the rest of the Canadian
communities because of the lack of employment and resources and
social problems, but you're asking those very communities that are
the most needy to have to provide the most creative responses for
social problems.93
Releasing authorities have enormous
difficulty looking favourably on the applications of many Aboriginal
women who plan to go home. Many prisoners therefore delay applying
for early release while they plan for release in an alternative
community. Many Aboriginal women leaving prison have no choice: they
must return to an alternative community, usually an urban centre,
where few, if any, supports exist for Aboriginal women leaving
prison.
... plans have to be made so
that when women come out of prison who have been in prison for a
while, they have to have some place to go. You just can't take away
a woman's family, a woman's life, and expect her to, after she's
done X number of years, go out there and function as a normal human
being.94
Supports under such situations take much
longer to build. And, as Carol LaPrairie noted, most resources for
Aboriginal people go to reserve communities, even though the needs
of Aboriginal people off-reserve, particularly in urban areas, is
enormous. Heather Bergen, Warden of Saskatchewan Penitentiary echoed
this concern:
... they're a lost population.
They will return to either an alternative community, or to the urban
setting where they haven't got the skills and we do not have the
resources in the community for those people. That's where our money
has to go. 95
With this background in mind, it becomes
apparent that the Healing Lodge offers so much hope and promise.
4.3.8 The Healing
Lodge - a progressive reform
The Healing Lodge promises to address many
of the cultural and correctional concerns just identified. It will
accommodate a small number of women in a cottage-like atmosphere. It
will be staffed largely by Aboriginal people, and will receive
assistance and advice from the women prisoners, elders and the
broader community in which it is located. Core programs will reflect
the needs expressed by federally sentenced Aboriginal women. In
particular, programs will address the loss of cultural and spiritual
identity, substance abuse and family and social violence.96
The location and design of the Healing Lodge
are impressive, and so are the enthusiasm and commitment to its
success expressed by those who are most closely involved with its
operation. The partnerships built around the Healing Lodge, with the
Aboriginal and local communities, elders, and federally sentenced
Aboriginal women themselves, testify to the Correctional Service's
capacity and willingness to innovate in the face of a serious social
challenge.
While the Healing Lodge addresses the
expressed needs of federally sentenced Aboriginal women in Canada,
it will accommodate only approximately 30 women, fewer than half the
number of Aboriginal women currently in prison under federal
sentence. Most Aboriginal women in custody will serve the greater
part of their sentences in the other regional facilities, or in
provincial institutions. They will also have a significant need for
culturally appropriate and spiritually meaningful programs, and
access to the their communities.
If the Correctional Service is to live up to
the promise of this initiative, it must provide the opportunity for
access to a Healing Lodge to all federally sentenced Aboriginal
women.
This is a critical matter for Aboriginal
women who are classified as maximum security and who, in my view,
may benefit the most from the philosophy, programs and overall
environment at the Healing Lodge. They should not be excluded on the
basis of their present security classification, and the decision
should ultimately be left to the "Kikawinaw" or "mother" as to whom
the Healing Lodge can safely accommodate.
4.3.9
Conclusions
4.3.9.1 With
respect to the Healing Lodge
In keeping with the spirit that animated its
creation, I believe that access to the Healing Lodge should be
available to all Aboriginal women, regardless of their present
classification. If this could not be accomplished by simply
reclassifying women under the current classification system, that
system should be modified to better meet the needs of all women,
using criteria that are relevant to their circumstances.
I also think that evaluation of the Healing
Lodge should be undertaken and should include non-traditional
criteria of success, developed in consultation with Aboriginal
communities and Aboriginal prisoners. Personal, cultural and
spiritual growth should be acknowledged as a valued component of the
enterprise.
Finally, consideration should be given to
the development in eastern Canada, of a facility modelled after the
Healing Lodge. If there are insufficient numbers of federally
sentenced women east of Manitoba to sustain such a facility, it
should be made available, with federal financial assistance if
necessary, to all Aboriginal women serving sentences in federal and
provincial institutions.
4.3.9.2 With
respect to the other regional facilities
The existence of the Healing Lodge should
not supersede the growing efforts to address the needs of Aboriginal
people in all prisons. However, the Healing Lodge should serve as a
centre from which ideas for programs, information, etc. could
radiate to all other facilities. Links should be established and
facilitated between the various Native Sisterhoods in the regional
prisons and the Inmate Committee, or its equivalent, at the Healing
Lodge.
In each regional facility:
- access to elders should be formalized and
facilitated;
- Aboriginal staff and contract workers
should be recruited;
- culturally sensitive training should be
provided to all staff;
- culturally relevant programs should be
made available to Aboriginal women, possibly under the guidance of
the Healing Lodge; and
- access to Aboriginal forms of healing
should be facilitated through elders, Aboriginal counsellors,
social workers, psychologists, etc.
4.3.9.3 With
respect to alternatives
In light of the disproportionate number of
incarcerated Aboriginal women, the Correctional Service should
report publicly, through the Deputy Commissioner for Women, on its
efforts to avail itself of the options provided to in s.81 of the CCRA, particularly in s.81(3) which
provides for the transfer of an offender to the care and custody of
an Aboriginal community.
The Correctional Service of Canada should
take the initiative of identifying incarcerated Aboriginal women who
would benefit from that placement and report within 6 months on its
success at implementing the option. Priority should be given to
women who have children in their Aboriginal community. The placement
should be accompanied by financial assistance to the community.
4.4 The
Future of Women's Corrections
4.4.1 The need for
a separate stream
It is beyond the scope of this inquiry to
examine all viable alternatives to imprisonment for women offenders.
The sparse literature on women in prisons is, however, eloquent
about the failure of incarceration and the likely efficacy of
alternative accommodations for women who presently are given a
custodial sentence. I therefore think that the exploration of
efficient alternatives should be pursued, particularly before
endorsing too broadly the mother and child programs which bring
children into prisons, rather than their mothers into the community.
Even within the traditional setting of
imprisonment, much can be done to make the system of imprisonment of
women in this country not only more just and humane, but also more
efficient and cheaper. The momentum is well in place with the
present implementation of Creating
Choices and the opening of the new regional facilities. However,
the model needs to be pursued one step further. The fragmentation
which is inevitable with regionalization must be compensated for by
an administrative regrouping of women's correctional concerns. Just
as the Prison for Women was lost as one of many federal
penitentiaries in the Ontario Region, because that regional
structure was not designed to respond to its uniqueness, the
regional facilities risk being even more marginalized if they remain
individually buried in five separate regions.
In 1969, the Report
of the Canadian Committee on Corrections ("Ouimet Report")97 devoted a chapter to "The Woman
Offender" in which four important recommendations were made. Two of
those are pivotal to my understanding of the issues raised in this
inquiry. The first one is the Ouimet
Report's recommendation that led to the enactment of the
Transfer of Services Agreements between the federal government and
some of the provinces. I will return to it below.
The second one was directed at the role of
women within the Correctional Service. The Ouimet Committee noted
that women offenders "form a comparatively small and readily
identifiable group" of offenders, and that this offered a unique
opportunity for federal leadership in developing an effective system
of corrections, responsive to the unique characteristics of the
female prison population everywhere in the country. To that end, the
Committee recommended the appointment of "a suitably qualified woman
to a position of senior responsibility and leadership in relation to
correctional treatment of the woman offender in Canada".98
With respect to the appointment of "a
suitably qualified woman" to a position of senior responsibility,
the accession of several women to management positions at the Prison
for Women over the years, as well as the appointment of five women
as Wardens for the new regional facilities, went a considerable
distance to meet this important recommendation contained in the Ouimet Report. This was also enhanced by
the presence of women in research and policy positions within the
Correctional Service, as well as the participation of a large number
of women, representing a variety of points of view, in the
conceptualization of Creating Choices.
However, in my view, this effort to meet the
Ouimet Report recommendation has shown
that the recommendation itself fell short of its intended purpose.
The number of women offenders serving a prison sentence in 1969,
even when computed nationwide to include both federally and
provincially sentenced women, as well as women awaiting trial in
custody, was probably perceived as too small for the Ouimet
Committee to consider advocating a separate administrative structure
to deal exclusively with women. I think that the time has come to do
just that. The mere presence of women in managerial positions within
CSC is insufficient to recognize and to give effect to the
qualitatively different correctional challenge posed by women
offenders as a group.
This issue was considered by the Task Force
which produced Creating Choices. Various
proposals were examined. One was the call for the appointment of a
woman to a very high level management position within the
Correctional Service, along the lines that had been proposed in the
Ouimet Report. Another option, which had
been advanced in 1981 by CAEFS, was the appointment of a Deputy
Commissioner for Women, and the creation of a "sixth region" to
regroup all federally sentenced women. Although the Task Force
recognized the danger of isolation for the new decentralized
facilities, it alluded to the difficulties of these proposals in
light of the decentralized management style currently in place
within the Correctional Service, and merely recommended future
discussions on the issue.
In submissions before this Commission,
CAEFS, the Correctional Investigator and LEAF advocated the
regrouping of women's corrections under the authority of a
Commissioner for Women, independent of the Correctional Service of
Canada. CAEFS further recommended that the new Commissioner be
appointed from outside the ranks of CSC, that it preferably be a
woman with experience in social services, education and health
services, as well as the criminal justice system.
Before considering these proposals in more
detail, I wish to return to the broader concerns that animate them.
Like the Task Force, I read the basic
recommendations of the Ouimet Committee as calling for an
amalgamation of federally and provincially sentenced women; for the
leadership of women in women's corrections; and for capitalizing on
the small number of women offenders to pioneer imaginative
correctional techniques. I think that now is the time to implement
fully these correctional ideals developed 25 years ago in one of the
most influential reports produced in Canada to deal with the
criminal process and corrections.
Women offenders have some things in common
with men offenders from their respective regions. But they have a
lot more in common with each other as women than they do with their
regional male counterparts. Their crimes are different, their
criminogenic factors are different, and their correctional needs for
programs and services are different. Most importantly, the risks
that they pose to the public, as a group, is minimal, and at that,
considerably different from the security risk posed by men.
The momentum generated by Creating Choices towards a new correctional
philosophy for women should not come to a halt with the completion
of the new buildings and the closure of the Prison for Women. Less
so than in 1969, but, in proportion, women offenders are still too
few in numbers to permit a rational expenditure of public funds
capable of delivering services of the same variety as the services
provided to men. This obvious way of stating the problem in a sense
betrays my thinking. The goal is not to provide women offenders with
the same services as those offered to men, or even comparable
services. The whole idea is to provide women with different services
and programs conceived just for them, not adapted to them from male
models.
It has been remarked on many occasions in
the course of this inquiry that the Prison for Women was different.
Even when governed by a statutory, regulatory and administrative
structure that is largely designed to ignore its differences, let
alone address and promote them, the Prison for Women made itself
different. Not all the differences were good or desirable. But they
should not be corrected by the mere expectation that compliance with
norms established essentially for male institutions is preferable.
Women's institutions should be different if they are to serve a
population that is so profoundly different, as a whole, from the
mainstream of correctional institutions. The regional facilities
have already been conceived to be responsive to a women-centred
correctional model. The day-to-day running of the new facilities
should be governed by an administrative structure in which there
will be no expectations that they be made to be a "real prison",
like all the other prisons.
I am not persuaded that it is desirable to
remove the administration of federally sentenced women entirely from
the Correctional Service and to create a new Commissioner for
women's corrections. Indeed, I see considerable disadvantages in
that model. It is difficult to make the case for the creation of a
self-standing federal bureaucracy to address the needs of a few
hundred persons across the country. Moreover, it is also difficult
to imagine that such a bureaucracy would have much clout as a fifth
agency of the Ministry of the Solicitor General, having to compete
for attention with the Correctional Service of Canada, the National
Parole Board, the Canadian Security Intelligence Service, and the
Royal Canadian Mounted Police. Finally, I believe that progressive
measures can be developed in women's corrections for the benefit of
all incarcerated men and women, and that the best way to permit
leadership to emerge from the women's sector is to keep it within
the ambit of the Correctional Service.
The 1981 CAEFS proposal for the creation of
a Deputy Commissioner for women's corrections is, in my view, the
desirable approach. The Deputy Commissioner would provide whatever
liaison with the regions is required. In addition to occupying
functions similar to those exercised through the regional reporting
structure, the women's corrections branch should also be given the
specific mandate to develop and experiment on progressive
correctional techniques that, if successful, could then be
implemented, with whatever adaptation may be felt necessary, to the
entire correctional system. The Healing Lodge is a perfect example
of such progressive, imaginative correctional initiative, and one
that there is every good reason to introduce to women prisoners
first.
It makes sense to introduce such measures in
the women's sector first for the many reasons that make women's
correctional profile different from men's. The group is, overall, a
low risk group; the cost of a small scale experiment will be modest
and, more importantly, if a progressive measure fails in the men's
population, it will likely never be made available to women, even if
its chances of success were much greater in the women's population.
I would therefore propose that the federally
sentenced women's facilities be regrouped under a reporting
structure independent of the regions, with the Wardens reporting
directly to a Deputy Commissioner for Women.
In addition to managing the federally
sentenced women's facilities, the Deputy Commissioner for Women
should be given the specific mandate to attempt the grouping of
incarcerated women throughout the country, both at the provincial
and federal level, so as to develop a critical mass from which to
improve the plight of all imprisoned women, and the quality of
corrections across Canada. I will develop this idea further in the
next part.
4.4.2
Federal/provincial cooperation
At the time of this inquiry, of the 300 or
so women who were incarcerated in Canada to serve a federal sentence
- i.e. a sentence of more than two years imprisonment
- more than half were actually serving that sentence in
a provincial facility. As of September of 1995, for example, 180
federally sentenced women were housed in provincial institutions. If
the issue of women's imprisonment were taken in isolation, that is,
if it were not linked to the male correctional system, these figures
would raise unanswerable questions about the logic of the
federal/provincial division of powers with respect to corrections.
It would indeed be difficult to rationalize why the 300 women who
serve a sentence in excess of two years must be put under federal
administration, only to see more than half of them returned into the
provincial system. The history of federalism and, once again, the
negligible place that women's issues have played in the field of
corrections, provide the answer, unsatisfactory as it is.
The Prison for Women in Kingston, and the
new regional facilities that are being erected to replace it, are
penitentiaries within the meaning of s.21(28) of the Constitution Act, 1867, which confers upon
Parliament the legislative authority over "The Establishment,
Maintenance and Management of Penitentiaries". While the federal
government also has exclusive jurisdiction over "Criminal Law and
Procedure" (s.91(27)), the provinces are competent to legislate with
respect to "The Administration of Justice in the Province"
(s.92(14)), and are empowered to impose "punishment by fine,
penalty, or imprisonment for enforcing any law of the province..."
(s.91(15)).
How and why the federal government acquired
exclusive legislative authority over "penitentiaries" is somewhat
obscure and speculative.99 In any
event, there is nothing in the Constitution that requires that any
particular offender be sent to a federal penitentiary.
Penitentiaries are thus established and maintained by the federal
government, and the determination of where sentences of
incarceration will be served, is enacted by Parliament on the basis
of its authority over criminal law and procedure. Shortly after
Confederation, federal legislation provided that the dividing line
between federal penitentiaries and provincial prisons was to be a
two year period of incarceration. Nothing prevents Parliament from
altering that dividing line or, for that matter, from abandoning it
all together. Indeed, many formal suggestions have been made over
the years for the alteration of that legislated dividing line, some
in favour of a more centralized correctional system, which would be
achieved by decreasing the ceiling of sentences to be served in
provincial institutions100 and, more
recently, in favour of an expanded provincial jurisdiction.101
It would therefore appear that there is no
constitutional impediment, at least in terms of federal/provincial
division of powers, to a restructuring, whether legislative or
simply administrative, of the management of women's corrections to
re-group all incarcerated women in Canada under a single umbrella
organization. I see no Charter
impediment either, even if the initiative were taken only in the
women's sector, in light of all the factors examined earlier.
If one ignores the large male correctional
system, both provincial and federal, there is no doubt that the full
amalgamation of all incarcerated women is the best solution for
overcoming the problems posed by the fact that there are so few
women imprisoned in the whole country. Inasmuch as one would hope to
promote this ideal solution, it is unlikely that the fate of women
convicted of crimes would be sufficient to move all federal and
provincial bureaucracies into jointly taking any corrective action,
let alone the best one.
The Ouimet Committee initiated action in
that direction in 1969 in the following terms:
It is recommended that
arrangements for purchase of prison services for women be made
between the Government of Canada and the various provinces so that a
unified service could be provided in each area and that the
Government of Canada offer to purchase service from the larger
provinces and to provide regional services that could be purchased
by smaller provinces.102
This recommendation was based, in part, on
the problems of geographic and cultural dislocation that the sole
federal Prison for Women, located in Kingston, created for women
offenders from other parts of Canada, particularly for the
Francophone women from Quebec. This, however, was not the sole basis
for the recommendation. The Ouimet Committee was concerned about the
fact that the Prison for Women was a multi-classification facility.
Moreover, although the Committee was generally in favour of smaller
institutions, it was quick to recognize that adequate correctional
services could only be provided to groups of a reasonable size. In
looking for an effective way to provide for the delivery of a
variety of services, as well as an appropriate grouping of offenders
by rational classification, the Committee proposed an amalgamation
of sorts, in the form of purchase of service agreements between the
federal government and the provinces, so as to form a group
sufficiently large to permit meaningful correctional management.
Meanwhile, the Ouimet Committee noted that women offenders "form a
comparatively small and readily identifiable group" of offenders,
and that this offers a unique opportunity for federal leadership in
developing an effective system of corrections, responsive to the
unique characteristics of the female prison population everywhere in
the country.
In my opinion, the next step in meeting the
need to rationalize women's imprisonment across the country consists
of pursuing the ideal of a re-grouping of all women's facilities,
both in the federal and provincial systems. We need to build that
critical mass in order to meet efficiently and rationally the needs
of the whole population of incarcerated women in Canada.
In 1973, as a result of the Ouimet Report and of the Report of the Royal Commission on the Status of
Women, 1970103, the Ministry of
the Solicitor General of Canada initiated negotiations with
provincial officials towards the completion of contractual
agreements which would enable the transfer of both men and women
prisoners. The first transfers were operated on a case by case
basis, and few women were transferred at the early stages. Over the
years, the practice of transfer became more prevalent, to the point
where now - at least until the full operation of the new
federal facilities - more than half of federally
sentenced women serve their sentences in their home province, under
these agreements. Although in the early years the Exchange of
Service Agreements merely offered temporary relief to some women
prisoners serving short sentences, it eventually expanded to women
serving life sentences. One of the major successes of this program
has been its ability to bring some women closer to their homes. In
particular, these agreements allowed for the relocation of many
French speaking prisoners from the Prison for Women to the Maison
Tanguay in Montreal, thus providing them access to programs and
services in French, in addition to bringing these women closer to
their culturally significant community.
The history of federal/provincial Exchange
of Service Agreements is well described in a document prepared by
the Federal/Provincial Policy Review.104 By then, there was considerable
transfer activity between the federal government and Quebec,
Alberta, British Columbia and Manitoba. Save for a three month
agreement in 1977, which permitted the transfer of women from the
Prison for Women to the Vanier Centre, there was however, little
transfer activity in Ontario. By 1988, the design of a long-term
strategy for federal female offenders was in the hands of the Task
Force on Federally Sentence Women. The fate of the Exchange of
Service Agreements was very much dependent on that initiative.
The Task Force considered the possibility of
continuing to use these agreements as an alternative mode of
accommodation after the closure of the Prison for Women. In its
report, it pointed to the following limitations to the enhanced use
of exchange of service programs: antiquated provincial facilities,
lack of common interest in the project amongst provinces,
intergovernmental disparities in programs and services, and fiscal
constraints. The Task Force ultimately rejected the expanded use of
Exchange of Service Agreements because it maintained that the
federal government has a responsibility for the management of women
serving sentences greater than two years, and that the government
"must accept responsibility for present inequities and assume a
leadership role in the construction of appropriate solutions".105 However, it allowed for the
possibility of an enhanced Exchange of Service Agreement with all
provinces, if the federal government was willing to first implement
a plan in a way that would break new ground in the correctional
field.
As it is now well known, the preferred
option of the Task Force was the development of small, regional,
federally operated facilities which would bring women closer to home
and place them near well resourced communities. Now that the
regional facilities are virtually all operational, the future
utility of Exchange of Service Agreements can be re-evaluated and
reconsidered as a possible method of diversifying services and
options, not only for federally sentenced women, but for all women
imprisoned in Canada. A major step towards bringing federally
sentenced women closer to home has already been achieved. This does
not mean, however, that there is no need to draw on the provincial
structure to advance that purpose further. There is still only one
federal facility in each of Quebec and Ontario, and both are located
in the south of each province. In British Columbia, the Burnaby
Correctional Centre for Women, a recently built provincial
institution, will be used as the facility for federally sentenced
women. There could often be benefits in placing federally sentenced
women in a provincial prison much closer to their home, if not for
all, at least for part of their sentence.
Moreover, if better integrated
administratively in the provincial prison structure, the new federal
facilities could afford to specialize and complement programs
available in nearby provincial prisons. The relative proximity of
Maison Tanguay in Montreal, to the new federal facility in Joliette
should permit them to complement each other, as far as possible,
rather than duplicate, in a costly fashion, every program for which
each may have a small "client" base. This is particularly evident in
the case of Tanguay, since that institution has accommodated a large
number of federally sentenced women since 1973. There is therefore
no reason why it should not be available as an alternative to
Joliette for all kinds of purposes, including specialization of
programs and also transfers, voluntary or not. Even in provinces
like Ontario, where there is no such historical experience, it is
imminently sensible to pool resources in order to provide some
specialized residential program, such as substance abuse, to the
greater number of incarcerated women at the cheapest possible cost.
The fact that sentences of over two years are served in a federal
penitentiary should not become an impediment to the effective
deployment of the scarce resources that are available in
corrections. The history of federal/provincial cooperation, which
was first to address the hardship of geographic dislocation, should
therefore be built upon to further the ideals expressed in Creating
Choices.
If there should be a concern that federally
sentenced women might be placed in antiquated provincial jails at a
time where they finally have access to "state of the art" modern
federal facilities, it should be possible to provide that placements
could only be made on consent, except in the case of emergency,
involuntary transfers. As I have stated earlier, transfers may be a
viable coping mechanism at a time of crisis, particularly in a small
institution, and transfer to another women's prison is the
preferable alternative.
Federal/provincial agreements may also offer
the possibility to women who so wish to serve their sentence in an
institution that is staffed entirely by women correctional officers
in the living units.
Just as importantly, the federal initiative
should not be limited to transfer of services. The ultimate
objective should be to build a pool of expertise in women's
correction, by linking the provincial prisons for women, many of
which I suspect operate in the same isolation as the Prison for
Women has nationally.
Even in the unlikely event that there were
to be a wild increase in women's criminality, it would likely remain
the case that, in proportion to men, women would continue to commit
very few crimes, and even fewer that result in imprisonment. It is
therefore probable that we will continue to be able to manage
women's prisons as small scale institutions, along the lines of the
models seen as desirable by the Ouimet Committee. At the same time,
an administrative combination of women's institutions in Canada,
federal as well as provincial, would allow for a variety of
effective and efficient services and programs, as well as for
appropriate groupings of offenders by security classification, that
the federal model alone is too small to achieve.
Women serving a federal sentence should be
allowed not only to serve their sentence as close to home as
possible, but also to have access, in their region, to the
specialized correctional model available in that region that best
meets their needs. This may be a correctional facility better suited
to their security classification, or an institution that contains a
decent mental health unit, a residential substance abuse program, or
an educational or vocational specialty. Women serving sentences in
the provincial system would also benefit from an administrative
expansion that would offer them access to the institutions for
federally sentenced women, as well as the possibility of
inter-provincial mobility.
Considerable savings could be achieved in
the shared contracting for professional services and program
delivery. But more importantly, and aside from all the practical
advantages that integrated federal/provincial corrections could
offer for both men and women offenders, an integrated correctional
system for women would emphasize the uniqueness of the correctional
experience for women all over Canada, and create the critical mass
essential for an effective correctional management while, at the
same time, reaping all the benefits offered by a regionally relevant
correctional placement.
It is obviously unnecessary for me to make
the case for the unification of correctional services for all
offenders, male and female. The case for female offenders is based
on the unique features of women's corrections, and stands regardless
of whether a case could also be made for the unification of men's
services.
4.4.3
Conclusion
I would therefore propose that the federally
sentenced women's facilities be grouped under a reporting structure
independent of the regions, with the Wardens reporting directly to a
Deputy Commissioner for Women.
The Deputy Commissioner for women should
explore with each province and territory the desirability of their
cooperation in program delivery, transfers, joint staff training,
etc., with the federal institutions for women in the province,
territory or region. The ultimate goal should be to achieve an
administrative, if not legislative, unification of all correctional
services for women offenders across the country. Should that prove
too illusive a goal, the mechanism of Exchange of Service Agreements
should be used to pursue that integration to the fullest possible
level with each province interested in the enterprise.
The first priority for the Deputy
Commissioner for Women should be the release and re-integration of
women in prison. To that end the Deputy Commissioner should
immediately ensure that there be no delays in case management which
result in paperwork not being ready at the earliest opportunity for
review by the Parole Board; that generous access be provided to
community programs and that initiatives be pursued for placements
pursuant to s. 81 of the CCRA; and that
other links to the community be cultivated so as to facilitate
reintegration.
The Deputy Commissioner for Women should be
specifically mandated to explore and implement progressive
correctional techniques, even on an experimental basis, for the
benefit of incarcerated women and, when properly adapted if need be,
for the benefit of all prisoners. He or she should also ensure that
progress made through the Healing Lodge be shared, inasmuch as
feasible, with incarcerated Aboriginal men.
The Correctional Investigator should have an
investigator specially assigned to issues related to women's
corrections, and any complaint emerging from the new regional
facilities should be directed to that person rather than being
merely processed on a regional basis.
PART III THE ROOTS OF
CHANGE: AN
HISTORICAL PERSPECTIVE
5. HISTORY OF THE
FEDERAL WOMEN'S PRISON
5.1 The Early
Years
The history of Canada's treatment of women
prisoners has been described as an amalgam of: stereotypical views
of women; neglect; outright barbarism and well-meaning
paternalism.106 Canadian women's
imprisonment begins in the early part of the nineteenth century when
changing public sensibilities determined that the use of corporal
punishment be minimized in favour of incarceration. Once built,
prisons became central to public notions of punishment, and the new
focus of penal reform became the improvement of prison management.
The Provincial Penitentiary (now Kingston Penitentiary) was one of
the first Canadian institutions to house incarcerated women for long
periods of time. From the beginning, the welfare of women prisoners
was secondary to that of the larger male population. Initially, the
treatment of children and women prisoners in penitentiaries was not
remarkably different from that of their male counterparts. Women
prisoners were, however, plagued by their small numbers and the
inconvenience they presented for prison management. Given that these
women were "too few to count"107
they were often housed in large male facilities in whatever manner
was convenient for the male administrators. On occasion, matrons
were employed at the discretion of prison wardens and charged with
the responsibility of managing these small populations, usually with
few resources or programs.
Shortly after the Provincial Penitentiary
opened, the Brown Commission108
which arose out of public concerns about the reported flogging of
women and children, and other inadequacies, criticised the prison
for its mismanagement of prisoners, in particular women and
children. The report of the Brown Commission confirmed severe
abuses, the neglect of women prisoners, and a general lack of
accountability on behalf of prison administrators. The report
recommended a number of changes, including the construction of a
separate living unit for women, who were forced to live in
deplorable conditions. This report provided the rationale for the
construction of a separate women's unit. However, the Commission's
vision of separate accommodations for women was not realized until
1913, sixty-five years later, when a free-standing women's prison
was built inside the walls of Kingston Penitentiary. In the
meantime, women prisoners were confined in piecemeal accommodations
and required to work in the kitchen and laundry.
At the time of Confederation, there were
approximately sixty women in the Provincial Penitentiary, which
became the responsibility of the federal government. Again, the
Warden's report of 1867 strongly urged the construction of a female
prison outside the walls of Kingston Penitentiary. Advocacy for a
separate women's prison continued until 1925, when construction of
the present day Prison for Women began.
Two reports were instrumental in the
decision to build a separate prison. They both noted that the
benefits of separate accommodations outweighed the resulting
hardships to women in having one central federal penitentiary for
women in Kingston. The first report, in 1921, was the Briggar,
Nickle and Draper Commission109
appointed by the Minister of Justice to consider and advise in
regard to a general revision of the penitentiary regulations. The
second was the follow-up report on the state and management of the
federal female offender - the Nickle Commission.110 These reports argued that women
prisoners needed to be completely separated and isolated from male
prisoners and male guards. The recommendation for a central women's
facility was contrary to an earlier recommendation of the Macdonnell
Commission111, appointed to
investigate and report on the conduct and administration of
penitentiaries, and the conduct of officers at Kingston
Penitentiary. Its report had suggested that women be moved closer to
their homes and be governed under provincial authority.
5.1.1 The Prison
for Women
The construction of a separate and somewhat
independent prison in 1934 was believed to present a viable solution
to the historic dilemma of what to do with federally sentenced
women. Instead, the isolation of a small group of women in a
separate facility led to further marginalization and discrimination.
Concerns about the inadequacy of this new
facility and calls for its closure began only four years after it
opened. They were raised by the Archambault Commission, and echoed
many years later in the Task Force on Federally Sentenced Women.
Over the past seventy years, there have been many inquiries into the
activities of correctional institutions and the operations of the
criminal justice system. While few of these reports focused
exclusively on women, several addressed concerns relevant to
federally sentenced women often, however, as a mere adjunct to
problems relating to male offenders. Notwithstanding the limited
commentary on women prisoners, fifteen government reports have
identified serious limitations in the provision of adequate services
for women prisoners:
1938 Royal Commission to Investigate the
Penal System of Canada (Archambault)112
1947 Report of General R.B. Gibson Regarding
the Penitentiary System in Canada113
1956 Report of a Committee Appointed to
Inquire into the Principles and Procedures Followed in the Remission
Service of the Department of Justice (Fauteux)114
1969 Report of the Canadian Committee on
Corrections (Ouimet)115
1970 Royal Commission on the Status of
Women116
1977 National Advisory Committee on the
Female Offender (Clarke)117
1977 Sub-Committee on the Penitentiary
System in Canada (MacGuigan)118
1978 National Planning Committee on the
Female Offender (Needham)119
1978 Joint Committee to Study the
Alternatives for the Housing of the Federal Female Offender
(Chinnery)120
1978 Progress Report on the Federal Female
Offender Program121
1979 Canadian Advisory Council on the Status
of Women122
1981 Canadian Human Rights Commission123
1988 Canadian Bar Association124
1988 Standing Committee on Justice and
Solicitor General on its Review of Sentencing, Conditional Release
and Related Aspects of Corrections (Daubney)125
1990 Task Force Report on Federally
Sentenced Women126
In addition to these reports, there have
been many briefs and submissions to government over the years by
agencies such as CAEFS, Women for Justice, and the Legal Education
and Action Fund (LEAF), each voicing similar concerns.
The fifteen reports confirmed, each in its
own way, that women prisoners, by virtue of their offences,
experiences and needs, present different security and classification
concerns from male offenders. Each report concludes that these
issues have not been adequately considered by past correctional
administrations. There is therefore no lack of documentation that
correctional programs and accommodations for women have been largely
unsatisfactory and inferior in quantity, quality and variety to
those for male offender; and, that women prisoners have been denied
equal treatment.127 Historically,
female offenders have also been largely neglected by criminological
researchers, and by correctional planners, who have focused their
research money and program initiatives on male offenders.
5.1.2 Early
criticisms of the Kingston Prison for Women
The most common concerns about the Prison
for Women after its inception were the inappropriateness of one
central facility and the lack of useful programs. These concerns
were further complicated by the small number of federally sentenced
women, which in turn provided a convenient justification for years
of apathy and neglect. These issues were first highlighted by the
Archambault Commission, which stated that women prisoners, for all
intents and purposes, were "not a custodial problem", and stressed
the limitations of one central facility for federally sentenced
women, the absence of meaningful work, and the inadequacy of
existing programs. The report concluded that the existing Prison for
Women should be closed, and women moved closer to their families and
communities.
This began a lengthy trail of similar
studies and recommendations. Nine years later, the Gibson Report
reinforced the recommendation made of the Archambault Report that
women should not be incarcerated in one central prison, and, that
"their custodial care and reformative treatment should be undertaken
in reformatories closer to their homes, their families and
relatives".128
The Fauteux Commission appointed to inquire
into the principles and procedures followed by the Remission Service
of the Department of Justice of Canada, also examined the operations
of the Prison for Women within the context of the treatment and
classification of all prisoners. The emphasis of this report was the
improvement of the medical, vocational, and educational training
which, in the past, had not been provided to women prisoners because
of their small numbers. Rather than seeing the smallness of this
population as a disadvantage, the Fauteux Report noted that this
institution, with a relatively small and comparatively static
population, was precisely the kind of institution where various
forms of treatment "could most readily be carried on."129 Unlike the Archambault Report, the Fauteux Report favoured keeping a central
facility, and proposed an intensified treatment regime.
5.1.3 Failed
attempts to close Prison for Women
Plans to build a new prison were made and
abandoned in 1956, 1965 and 1968. A few years later, the
Canadian Committee on Corrections (Ouimet Committee) was established
to "study the broad field of corrections...".130
The Ouimet
Report also saw the small number of federally sentenced women as
conducive to creative programming. It argued that a small population
was an advantage, but recognized the practical limitations to the
provision of services to a small population. The Committee proposed
the decentralization of the federal population into provincial
facilities, and the use of Exchange of
Service Agreements between federal and provincial facilities in
order to provide a unified service for all women prisoners.131 I will return below to the central
recommendations made in the Ouimet
Report which are still a useful blueprint for today's reforms.
5.2 Women
Prisoners and Their Rights to Fair and Equitable
Treatment
The Archambault
Report was one of the earliest to acknowledge the rights of
women prisoners to equal treatment. This right was implicitly and
explicitly reinforced in several successive reports in which the
state of corrections for women was criticised on several counts for
not adhering to a policy of equality. These recommendations for the
improvement of women's incarceration which accumulated over a long
history of inquiries, led to few substantive reforms. Not until the
early-to mid-1970's were the recommendations of such reports
considered seriously by government. In the 1970's, there was a
renewed interest in women's corrections to the extent that it
reflected political and social interest in women's issues, in part
inspired by a strengthening women's movement which emphasized
women's right to equal treatment in several spheres.
Shortly after the release of the Ouimet Report, the Royal Commission on the
Status of Women132 outlined several
systemic barriers facing women and reinforced the importance of
equal treatment. The report of the Commission emphasized the common
status of women and men, rather than a separate status for each sex.
The intention of its recommendations was to create a measure of
equality where it was seen to be lacking in a variety of areas
including: women's participation in public life, women's involvement
in the Canadian economy, immigration and citizenship, law, family,
taxation and child care allowances, and education. Given the breadth
of this mandate, only a small section of the report was devoted to
women's involvement in crime, and specifically federally sentenced
women. Perhaps most importantly, the Commission recommended that
"the federal Prisons and Reformatories Act be revised to eliminate
all provisions that discriminate on the basis of sex and
religion".133 The Commission, like
its predecessors, explicitly called for the closure of the existing
Prison for Women, and recommended the development of more flexible
and imaginative programs and the establishment of provincially-based
accommodations for federally sentenced women.
That report also included, for the first
time, recommendations for the provision of appropriate and relevant
services and programs for Aboriginal and Francophone women. Until
the 1970s, concerns about the discrimination incurred by these two
groups were largely disregarded, although the 1967 report Indians and the Law134 helped to raise the public's
awareness of racism and unequal treatment of Aboriginal women in
Canadian prisons and in the criminal justice system.
The Royal Commission on the Status of Women
marked a fundamental shift in thinking about women and their right
to equality. This acceptance of the need for equal treatment and
opportunity had a slow, gradual but positive impact on women's
corrections. Eventually, however, the focus on formal equality has
shifted in recent times to the achievement of substantive equality.
The 1974 establishment of the National
Advisory Committee on the Female Offender (NACFO-Clarke Report135) by the Solicitor General of Canada
was a recognition of the need for changes in the management of
federally sentenced women. NACFO, the second major committee on the
federal female offender, was established to consider the future of
women prisoners; and to make recommendations for a comprehensive
plan to provide adequate institutional and community services
appropriate to the unique security and program needs of these
offenders. After a statistical study and extensive consultation
process, the Clarke Report confirmed once again the uniqueness of
women's offending, and it documented some of the "special needs" of
women prisoners: low self-image, weak family ties, and a tendency to
self-mutilate.
5.2.1 The
deficiencies of a centralized Prison for Women
The Clarke
Report also highlighted deficiencies in the methods of housing
and managing federally-sentenced women. Its central concerns were,
first, the geographic dislocation of prisoners living far from their
homes, and second, the personal and legal problems resulting from
these separations. The absence of appropriate programs, inadequate
classification, the lack of Francophone and Aboriginal services, the
alienation of staff, and finally, and an outdated architectural
structure, were additional sources of concern. They led to the
Committee's conclusion and recommendation, hardly a new one, that
the Prison for Women should be closed.
The National Planning Committee on the
Female Offender (Needham Report136) and The Joint Committee to Study
Alternatives for the Housing of Federal Female Offender (Chinnery Report137) were established in response to the
Clarke Report to investigate the available options. Struck by the
enormity of the problems facing the management of federal female
offenders, the Needham Report noted that
there was no "...ideal solution to the problem of the female
offender..."138, and that given the
size of Canada, and the small number of women in prison, the only
solution was compromise. The solution proposed was the use of
federal/provincial Exchange of Service Agreements, the establishment
of at least one community-based residential centre, and the closing
of the Prison for Women, or, at least some improvements to the
existing structure.
In 1973, an Exchange of Service Agreement
allowed Francophone women to reside in Maison Tanguay, a provincial
institution with programs in French. While this improved conditions
for some women, there were, unfortunately, a large number of women
who remained at the Prison for Women in which conditions changed
very little. By 1988, the problems associated with centralised
incarceration and the inability of the Correctional Service of
Canada to find an alternative to this dilemma, were once again
addressed by the Canadian Bar Association in Justice Behind The Walls139 and in the Daubney Report140. According to the Canadian Bar
Association the separation of an offender from her family and
community not only made "... the pains of imprisonment harder than
is reasonable, but it also [undermined] women's prospects for
successful integration...".141 This
view was reinforced by the Daubney Report, and later in Creating Choices.
5.2.2 A history of
excessive security - the over-classification of women
prisoners
The continued use of one central facility
meant that a large portion of the women's prison population was
over-classified because the Prison for Women in Kingston was
constructed as a maximum security building supported by maximum
security staffing and services. This issue was of particular concern
to the Daubney Committee which reviewed sentencing, conditional
release and related aspects of corrections. It was "...concerned
that large numbers of women across the country [were] being detained
in facilities which provide much higher security than most of them
require and than most of them would be subject to if they were
men".142 Again, it was noted that
women still had not been afforded the treatment equal to that of men
in corrections. Women prisoners, classified as medium security, and
in particular those with a minimum security rating, were not
afforded the same opportunities as male prisoners with the same
classification.
The inability to transfer inmates to another
facility meant that correctional managers and prisoners had fewer
options. The practice of gradually lowering prisoners' security
levels and transferring them to institutions with less security and
different program options, is known as cascading. The inability to
cascade women through the continuum of correctional supervision is
another example of the disadvantages inherent in a centralized
federal correction facility for women. The only attempt to rectify
this problem was the establishment of an 11 bed minimum security
house adjacent to the Prison for women in 1990 (Isabel McNeill
House).
More recently, the Correctional Service of
Canada has attempted to create security classifications more
appropriate to women offenders, based on the specific risks and
needs of the women themselves, not on the risks and needs of the
male population.143
5.2.3 Using
litigation to bring about change
Although the Prison for Women has been the
subject of periodic scrutiny, deplorable and inequitable conditions
remain. Advocates of reform have used several tactics to bring about
change. The early 1980's were a period of intense litigation and
recognition by the courts of prisoners' rights, including the
specific rights of women in prison,144 which culminated in the adoption of
the CCRA.
One group, Women for Justice, sought a
remedy through litigation by filing a complaint of sexual
discrimination against the federal government with the Canadian
Human Rights Commission.145 In late
1981, the Canadian Human Rights Commission found that the complaint
alleging "discrimination in the provision of goods, services and
facilities on the ground of sex was substantiated" with respect to
the following: programming, poor facilities, geographic dislocation,
and the absence of psychiatric care, security classification, and
effective mechanisms for the involvement of women in senior policy
positions.
Pursuant to the Commission's recommendation,
a conciliator was appointed for the purpose of attempting to bring
about a settlement of the complaint. In June 1984, the Commission,
while acknowledging that "the conciliation process has failed to
bring about a settlement proposal" in respect of the complaint
"decided to consider the complaint partially redressed".
At least one court commented on the living
conditions at the Prison for Women. In R. v. Daniels, [1990] 4 C.N.L.R.
51 the court recognized the relationship between prison conditions
within the Prison for Women and prisoner suicides. The judge
concluded that Daniels' right to life and security protected by s.7
of the Charter would be violated if she
were to be incarcerated at the Prison for Women because of "the high
risk of death by suicide in a far away >medieval, castle-like
prison"', something which was "unacceptable in a free and democratic
society".
The judge also noted that incarcerating the
defendant in this facility would constitute cruel and unusual
punishment because of its geographical distance from her home. The
court ruled that Native women such as Daniels were being
discriminated against in the federal correctional system on the
basis of gender, contrary to ss.15 and 28 of the Canadian Charter of Rights and Freedoms,
because federal penitentiaries for men had better and a wider
variety of programs and because of the cultural and geographic
dislocation resulting from the existence of only one federal
penitentiary for women. On appeal, the judge's order directing that
Daniel's sentence not be served in Kingston Prison for Women was set
aside on procedural grounds (R. v. Daniels, [1991] 5 W.W.R.
340). To date no court has decided that the existence of only one
federal prison for women violates the Charter rights of women prisoners. Although
it might be expected that, but for initiatives taken as a result of
Creating Choices, further Charter challenges would have emerged.
5.2.4 Other
impetus for change
While litigation may have forced the
government to improve some conditions in the Prison for Women, it
did not bring about fundamental changes in the treatment of
federally sentenced women, or the conditions of their accommodation.
However, in response to mounting criticism, and in an effort to
improve the conditions of women's incarceration, the government in
1982 established a Permanent National Advisory Committee on the
Federal Female Offender. This committee
was comprised of both government and private sector representatives,
and its role was to advise the Commissioner on current programs and
long-term policy planning related to federal female offenders. In
1985, the Correctional Service created the more specialised Division
of Native and Female Offender Programs. Some conditions had improved
after that, but there were several concerns which persisted, as
noted in the Daubney Report and in Creating Choices.
In short, these two reports highlighted the
persistence of problematic conditions faced by women in prison: the
absence of relevant programs and services, limited access to the
same types and variety of programs as incarcerated men, geographic
dislocation, over-classification, and minimal community
alternatives. They also stressed the absence of meaningful
vocational, educational and treatment programs, in addition to
limited pre-release and post-release options. As social roles
changed, it was argued, prisons had not. Prison continued to
typecast women by providing programs which emphasised traditional
female roles and stereotypical expectations of women.
After some minor, mostly cosmetic
improvements inside the prison, debates about programming and
treatment in the late 1980's and early 1990's shifted focus. They
began to centre on the unsuitability of applying correctional
programs designed for a larger male population, to a small and
somewhat unique group of women.146
Here, it was argued that women prisoners were equal to, but
different from, male prisoners. Attention to these differences was
seen as critical to effective and meaningful correctional planning
for women.
5.2.5 Cultural
insensitivity and minority women
The report, Indians
and the Law147 identified and
documented the government's insensitivity to the particular
circumstances and problems of Aboriginal women, and raised public
awareness of racism in criminal justice institutions. Until
recently, there have been few attempts by prison administrators to
accommodate the growing diversity of women in the population. With
the exception of the recent consideration of the needs of Aboriginal
women, through the construction of the Healing Lodge, the
integration of Aboriginal teachings into some facets of the
correctional regime, and the hiring of Aboriginal employees, there
were few efforts to address cultural diversity in the population of
federally sentenced women. Provincial reports such as Blueprint for
Change,148 Racism Behind Bars149, and the final Report of the Commission on Systemic Racism in
the Ontario Criminal Justice System150 have documented the difficulties
experienced by non-Aboriginal minority women in certain Canadian
prisons. There are few if any, programs designed to meet their
specific needs. Current research in this area is sparse and unable
to adequately provide an understanding of the problems faced by
minority women, and the implications for programming. Given these
concerns, Corrections Canada, under the auspices of the Federally Sentenced Women Program151 has begun to examine the needs of
minority women, including foreign nationals.
5.2.6 Substantive
equality versus rights-based equality
The changes to the Prison for Women,
unfortunately, did not occur in time to prevent several suicides,
hunger strikes, self-slashings, and major incidents. By the late
1980's, it became evident to many observers that the problems
created by accommodating the female offender in correctional systems
governed by men and oriented towards the male offender were not
producing desirable results.152
Thus, instead of striving for formal equality, reformers pushed for
a dramatic shift in correctional philosophy: one which stressed the
commonalities shared by women as an historically disempowered and
marginalized group.
Creating Choices
testifies to that important shift towards the substantive equality
which had been alluded to several years earlier in the often quoted
MacGuigan Report which condemned the
Prison for Women stating that it was "unfit for bears":
One area in which women have equality in
Canada - without trying - is in the national
system of punishment. The nominal equality translates itself into
injustice. But, lest the injustice fail to be absolute, the equality
ends and reverts to outright discrimination when it comes to
providing constructive positives - recreation, programs,
basic facilities and space - for women ... In light of
today's advanced sociological knowledge, the institution is obsolete
in every respect.153
5.3 Conclusion
This history of opportunities which have
been missed154 has touched upon
virtually every issue which was directly or indirectly raised by the
events under consideration by this Commission.
Section 3 of the CCRA asserts that the purpose of the
federal correctional system is to contribute to the maintenance of a
just, peaceful and safe society...
The society in which many woman offenders
live is neither peaceful nor safe. By the time they go to prison,
they should be entitled to expect that it will be just.
PART IV - SUMMARY
OF RECOMMENDATIONS
SUMMARY OF RECOMMENDATIONS
This part contains the recommendations that
emerge, explicitly or implicitly, from my review of the facts and my
consideration of the broad policy issues that the facts gave rise
to. There is no commentary on the recommendations in this part, as
most were discussed earlier in the report. Others are self evident
as to their intent and purpose and require no further elaboration.
1. I
recommend that this report be made public.
2. I recommend
that the videotape of the IERT intervention at the Prison for Women
on April 26/27, 1994, which has been attached as an exhibit to
the original of this report, be made available by the Secretariat of
the Ministry of the Solicitor General, on request, free of charge.
3.
I recommend that a copy of that videotape be attached to any
copy of this report which will be preserved in Archives.
4. With respect
to issues specific to women's corrections, I recommend:
(a)that the position of Deputy Commissioner
for Women be created within the Correctional Service of Canada, at a
rank equivalent to that of Regional Deputy Commissioner;
(b)that the Deputy Commissioner for Women be
a person sensitized to women's issues and, preferably, with
experience in other branches of the criminal justice system;
(c)that the federally sentenced women's
facilities be grouped under a reporting structure independent of the
Region, with the Wardens reporting directly to the Deputy
Commissioner for Women;
(d)that the Deputy Commissioner for Women
take over the responsibility for the remaining phase of the
implementation of the Federally Sentenced Women initiative with
respect to the new facilities;
(e)that research and development on issues
related to women's corrections be placed under the jurisdiction of
the Deputy Commissioner for Women, with appropriate budgetary
allocations;
(f)that the Deputy Commissioner for Women
initiate a revision of the law and policies applicable to the
women's institutions with a view to simplifying the rules and
ensuring that administrative directives comply with the law. More
specifically, the Deputy Commissioner should consider by-passing the
level of "Regional Instructions" and operating exclusively through
Commissioner's Directives and Standing Orders pertinent to the local
conditions of a given institution;
(g)that the Deputy Commissioner for Women
explore with each province and territory the desirability of
cooperation in program delivery, transfers, joint staff training,
and the like, with a view to achieving an administrative, if not
legislative, unification of all correctional services for women
offenders across the country. Failing that, Exchange of Service
Agreements should be used to pursue that integration to the fullest
possible level with each province interested in the enterprise;
(h)that the Deputy Commissioner for Women
consult with women's groups, in particular those that have
participated in these proceedings, with a view to developing
appropriate programs for women offenders, pursuant to s.77 of the CCRA;
(i)that in programming, priority be given to
the development of work programs that
(i)have a vocational training
component;
(ii)provide a pay incentive; or
(iii)constitute a meaningful
occupation;
(j) that the first priority for the
Deputy Commissioner for Women be the release and reintegration of
women in custody. The Deputy Commissioner should immediately ensure
the elimination of delays in case management which result in
paperwork not being ready at the earliest opportunity for review by
the Parole Board; that generous access be provided to community
programs and that initiatives be pursued for placements pursuant to
s.81 of the CCRA; and that other links
to the community be cultivated so as to facilitate reintegration;
(k)that the Deputy Commissioner for Women be
specifically mandated to explore and implement progressive
correctional techniques, even on an experimental basis, for the
benefit of incarcerated women and, when properly adapted if need be,
for the benefit of all prisoners;
(l)that the Deputy Commissioner for Women be
given the discretion to implement family contact programs, including
financially assisted telephone calls or family visits, even if the
same are not available to incarcerated men, to recognize the
different circumstances and needs of women, particularly, but not
restricted to, their child care responsibilities;
(m)that complaints and grievances procedures
be amended to provide that all second level grievances arising from
an institution for women be directed to the Deputy Commissioner for
Women, rather than to the Regional level;
(n)that the Deputy Commissioner for Women
answer personally all complaints or grievances addressed to him or
her;
(o)that the Deputy Commissioner for Women
ensure that progress made through the Healing Lodge be shared,
inasmuch as feasible, with incarcerated Aboriginal men;
(p)that the Correctional Investigator assign
an investigator to deal specifically with issues related to women's
corrections, and that any complaint emerging from the new regional
facilities be directed to that person.
5. With
respect to cross-gender staffing, I recommend:
(a)that at least one federal in
stitution be staffed with no men working in
the living units, or that agreements be made with one or more
provincial facilities where the living units are staffed exclusively
by female Correctional Officers, for the placement of federally
sentenced women. Inmates' desire to be housed in such facilities
should be taken into account in their placement;
(b)that explicit protocols be drafted in
each institution in which male staff will have access to the living
units, to ensure that
(i)male front line workers are
always paired with female front line workers when patrolling living
units;
(ii)that male staff be
restricted from patrolling living units at night; and
(iii)that male staff be
required to announce their presence on a living unit or at an
individual's cell or bedroom;
(c) that all federal institutions be
designed in such a way as to ensure privacy for inmates while using
washrooms, dressing and undressing;
(d)that the design of the existing or
proposed enhanced unit in each of the new facilities be such as to
provide modesty barriers for inmates kept under close monitoring;
(e)that the sexual harassment policy of the
Correctional Service be extended to apply to inmates;
(f)that a woman be appointed to monitor and
report annually, for the next three years following the opening of
each new regional facility, to the Deputy Commissioner for Women, on
the implementation of the cross-gender staffing policy in the living
units of the new institutions, and on any related issues, including
the effectiveness of the extension of the sexual harassment policy
to the protection of inmates;
(g)that the Monitor be a person independent
from the Correctional Service;
(h)that the Monitor have access to inmates
and staff on a confidential basis, and that her mandate be to assess
the system, rather than the individuals, and to make recommendations
accordingly;
(i)that the annual report of the Monitor be
made public, along with a description of any corrective measure
taken by the Correctional Service to redress problems that she might
have identified;
(j)that the Deputy Commissioner for Women be
required, after three years, to provide recommendations to the
Commissioner as to the desirability of continuing the cross-gender
staffing policy of the Correctional Service in light of the reports
of the Monitor, and to put forward alternative options, if need be.
6. With
respect to use of force and use of IERT's, I recommend:
(a)that male IERT's not be deployed again in
an institution for women;
(b)that the Correctional Service proposed
policy with respect to crisis intervention, which includes
non-violent crisis intervention techniques, be implemented in all
the new facilities;
(c)that should there be any IERT's in the
regional facilities, whether developed and trained along the Burnaby
Correctional Centre model or otherwise, they be composed exclusively
of female staff;
(d)that, to the extent that local police
forces, the RCMP, or any other security organization may be expected
to play a role in maintaining security or restoring order in a
women's correctional facility, protocols or memoranda of
understanding be entered into with such organizations to ensure that
the persons required to apply force to women, particularly to search
them, be apprised specifically of the limit of their authority;
(e)that the Correctional Service of Canada
acknowledge that the following is a correct interpretation of the
existing law, or that it seek modification of the existing law to
accord with the following:
(i)men may not strip search
women. The only exception is where the delay in locating women to
conduct the search would be dangerous to human life or safety, or
might result in the loss of evidence. No man may witness the strip
search of a woman, except as above.
(f) that inmates be given the right to
counsel before expressing their consent to a body cavity search, and
that inmates be advised of that right at the time their consent is
sought;
(g)that body cavity searches only be
performed in surroundings that are appropriate for consensual,
non-emergency medical examination or intervention;
(h)that a body cavity search be performed
only by a female physician, if the inmate so requests, and that the
physician ensure, to her satisfaction, that the consent was not
obtained as a result of inducement or coercion;
(i)that body cavity searches and strip
searches performed in contravention of these recommendations be
treated as having rendered the conditions of imprisonment harsher
than that contemplated by the sentence, for the purposes of the
remedies contemplated in the recommendation dealing with sanctions.
(see recommendation 8(b) and (c))
7. With
respect to Aboriginal women and the Healing Lodge, I
recommend:
(a)with respect to the Healing Lodge itself:
(i)that access to the Healing
Lodge be available to all Aboriginal federally sentenced women,
regardless of their present classification;
(ii)that evaluation of the
Healing Lodge be undertaken, and include non-traditional criteria of
success, to be developed under the authority of the Deputy
Commissioner for Women, in consultation with Aboriginal communities,
Aboriginal prisoners, and women's groups if necessary. Personal,
cultural and spiritual growth should be acknowledged as a valued
component of the evaluation;
(iii)that consideration be
given to the development of a facility modelled after the Healing
Lodge, to serve the needs of all incarcerated women in eastern
Canada;
(b) with respect to the regional
facilities other than the Healing Lodge:
(i)that under the supervision
of the Deputy Commissioner for Women, all regional facilities draw
on the resources of the Healing Lodge for the development of
programs and correctional approaches relevant to the particular
needs and circumstances of Aboriginal women;
(ii)that links be established
and facilitated between the various Native sisterhoods in regional
prisons and the committee of inmates in place, if any, at the
Healing Lodge;
(iii)that in each regional
facility:
- access to Elders be formalized and
facilitated;
- Aboriginal staff and contract workers be
recruited;
- culturally sensitive training be provided
to all staff;
- culturally relevant programs be made
available to Aboriginal women; and
- access to Aboriginal forms of healing be
facilitated through Elders, Aboriginal counsellors, social
workers, psychologists, etc.
(iv) that the Deputy Commissioner for
Women take the initiative of identifying incarcerated Aboriginal
women who would benefit from a placement into the care and custody
of an Aboriginal community, as contemplated by s.81(3) of the CCRA, and report within six months on his
or her efforts at implementing that option; that priority be given
to women who have children in their Aboriginal community; and that
community placement be accompanied by appropriate financial
assistance to the community.
8. With respect to correctional
issues more generally, I recommend:
(a)that the Department of Justice, at the
initiative of the Solicitor General, examine legislative mechanisms
by which to create sanctions for correctional interference with the
integrity of a sentence;
(b)that such sanctions provide, in
substance, that if illegalities, gross mismanagement or unfairness
in the administration of a sentence renders the sentence harsher
than that imposed by the court:
(i)in the case of a
non-mandatory sentence, a reduction of the period of imprisonment be
granted, to reflect the fact that the punishment administered was
more punitive than the one intended, should a court so find; and
(ii)in the case of a mandatory
sentence, the same factors be considered as militating towards
earlier release;
(c) that the Correctional Service
properly educate its employees with respect to the rights of
incarcerated offenders and inform them of the Service's commitment
to seeing that these rights are respected and enforced.
9. With
respect to segregation, I recommend:
(a)that when administrative segregation is
used, it be administered in compliance with the law and
appropriately monitored;
(b)that daily visits to segregation units by
senior prison managers be required, and that the discharge of that
duty be specifically made part of any performance evaluation of
these managers;
(c)that the obligation to conduct daily
visits to segregation not be delegated below the level of Unit
Manager, or its equivalent, except in very small institutions where,
on weekends, this function could be performed by the officer in
charge of the institution;
(d)that the practice of long-term
confinement in administrative segregation be brought to an end;
(e)that, in order to so achieve, a time
limit be imposed along the following lines:
(i)if the existing statutory
pre-conditions for administrative segregation are met, an inmate be
segregated for a maximum of three days, as directed by the
institutional head, in response to an immediate incident;
(ii)after three days, a
documented review take place, if further detention in segregation is
contemplated;
(iii)the administrative review
specify what further period of segregation, if any, is authorized,
up to a maximum of 30 days, no more than twice in a calendar year,
with the effect that an inmate not be made to spend more than 60
non-consecutive days in segregation in a year;
(iv)after 30 days, or if the
total days served in segregation during that year already approaches
60, the institution be made to consider and apply other options,
such as transfer, placement in a mental health unit, or other forms
of intensive supervision, but involving interaction with the general
population;
(v)if these options proved
unavailable, or if the Correctional Service is of the view that a
longer period segregation was required, the Service be required to
apply to a court for a determination of the necessity of further
segregation;
(vi)that upon being seized of
such application, the court be required to consider all the
components of the sentence, including its duration, so as to make an
order consistent with the original intent of the sentence, and the
present circumstances of the offender;
(f) failing a willingness to put
segregation under judicial supervision, I would recommend:
(i)that segregation decisions
be made at an institutional level subject to confirmation within
five days by an independent adjudicator;
(ii)that the independent
adjudicator be a lawyer, and that he or she be required to give
reasons for a decision to maintain segregation;
(iii)that segregation reviews
be conducted every 30 days, before a different adjudicator each
time, who should also be a lawyer, and who should also be required
to give reasons for his or her decision to maintain segregation;
(g) that failure to comply with any of
the above provisions be treated as having rendered the conditions of
imprisonment harsher than that contemplated by the sentence, for the
purposes of the remedy contemplated in recommendation 8(b) and (c).
10. With
respect to accountability in operations, I recommend:
(a)that all National Boards of Investigation
include a member from outside the Correctional Service;
(b)that the outside member be drawn from a
list of agreeable candidates compiled from suggestions generated
within the Correctional Service, and also from organizations such as
the John Howard Society, the Canadian Association of Elizabeth Fry
Societies, the Canadian Bar Association, the Canadian Association of
Chiefs of Police, and any other group with similar interests or
expertise;
(c)that a core of specialized investigators
be trained to sit on National Boards of Investigation and, if need
be, on some Regional Boards; that training be developed in
consultation with techniques and expertise of various police
oversight bodies;
(d)that mandates given to Boards of
Investigation standardly require them to monitor the Correctional
Service's compliance with the law, particularly the law dealing with
prisoners' rights;
(e)that mandates given to Boards of
Investigation be expressed in clear and specific terms and contain a
realistic reporting date;
(f)that adequate resources be made available
to Boards of Investigation, including secretarial resources,
(g)that there be no input from persons other
than the Boards of Investigation members into the production of the
final report;
(h)that Boards of Investigation consider
their obligation to give notice to persons, including inmates,
pursuant to s.13 of the Inquiries Act.
11. With
respect to complaints and grievances, I recommend:
(a)that a system be put in place to assign a
priority to all complaints and grievances received, and that the
prioritization be effected on the day on which the complaint or
grievance is received at that level; priority should obviously be
given to complaints that relate to an ongoing matter of a serious
nature;
(b)that where a complaint or grievance was
well founded when it was made, but requires no direct action at the
time of the response, in light of a change in the circumstances
which gave rise to the complaint, the Service be required to
recognize that the complaint was valid and indicate to the inmate
what measures, if any, have been or will be taken to avoid the
recurrence of the problem;
(c)that all persons in the Correctional
Service empowered or required to dispose of complaints and
grievances be given the specific authority to admit error on the
part of, and on behalf of the Correctional Service;
(d)that all members of the Correctional
Service empowered or required to respond to complaints or grievances
be advised of the means by which to obtain legal assistance, if such
appears to be required for the proper disposition of a matter which
could realistically engage the civil or criminal liability of the
Correctional Service, or some of its members;
(e)that, if a grievance requires legal input
prior to its disposition, the inmate be informed of the expected
delay and the reasons thereof;
(f)that the Deputy Commissioner for Women be
mandated to explore and experiment, in the new regional facilities,
with alternative dispute resolution techniques;
(g)that dispute resolution at the
institutional level be focused on the rapid resolution of irritants,
and, most importantly, be directed at the reconciliation of people;
(h)that the Commissioner personally review
some, if not all, grievances brought to him, as third level
grievances, as the most effective, if not the only method for him to
keep abreast of the conditions of life in institutions under his
care and supervision;
(i)that, should the Commissioner be
unwilling or unable to participate significantly in the disposition
of third level grievances, such grievances be channelled to a source
outside the Correctional Service for disposition, and that the
disposition be binding on the Correctional Service.
12. With
respect to outside agencies, I recommend:
(a)that Citizens' Advisory Committees
continue to play the important role assigned to them by the CCRA, and that the Correctional Service
refrain from taking or permitting to be taken any action to chastise
CAC members if they take a bona fide position in the course of
their functions.
13. With
respect to the interaction of the Correctional Service with other
participants in the administration of criminal justice, I recommend:
(a)that in recruitment and staffing
throughout the Correctional Service, including at the highest
managerial levels, there be input from people experienced in the
other branches of the criminal justice system, such as lawyers and
police officers;
(b)that the legal profession increase the
awareness of its members to correctional issues, through Bar
Associations, defence lawyers' organizations, and others involved in
continuing legal education, offering training to their members in
correctional law;
(c)that the judiciary be further sensitized
to correctional issues through programs developed by the National
Judicial Institute, which could include a reminder to all judges of
their right to visit any part of any penitentiary in Canada,
pursuant to the provisions of s.72 of the Corrections and Conditional Release Act;
(d)that judges be sensitized to the
specifics of women's correctional issues, particularly in light of
the concerns expressed to this Commission that the opening of the
new regional facilities could lead to an inflation in the length of
sentences imposed on women as the new federal institutions will be
perceived as better suited to meet their needs;
(e)that Bar Associations and the judiciary
draw on the expertise of corrections personnel to increase their
awareness of correctional issues;
(f)that the intensive training of
Correctional Officers developed and applied for the opening of the
new regional facilities be continued as a permanent form of training
for officers expected to work in women's facilities;
(g)that this model of training be evaluated
and expanded, if appropriate, through the Correctional Service;
(h)that in continuing education and
training, the Correctional Service draw from the expertise of the
judiciary, the Bar, and the police, in an effort to expose the
Service to a culture committed to the values expressed in the
Canadian Charter of Rights of Freedoms,
throughout the administration of criminal justice.
14. With
respect to miscellaneous issues arising from the facts of this case,
I recommend:
(a)that the Correctional Service improve
accessibility to basic legal and policy requirements by:
(i)undertaking a review of its
administrative directives in order to ensure compliance with the law
and avoid errors and duplications between existing Commissioner's
Directives, Regional Instructions, Standing Orders and Post Orders;
and
(ii)reducing the multiplicity
of sources, possibly by the elimination of Regional Instructions;
(b) that all IERT interventions
continue to be videotaped in the future, and that similar types of
interventions in the women's facilities also be recorded on
videotape;
(c)that the videotapes be understood to
constitute a record of the events; the videotape should, if
possible, capture the scene as it existed prior to the team's
intervention, and should contain an indication of the reasons why
certain events may not be recorded;
(d)that all IERT videotapes be immediately
reviewed for clarity and accuracy, and be supplemented by written
Use of Force or Occurrence Reports when they prove inadequate as a
recording device;
(e)that all IERT intervention videotapes be
immediately forwarded to the Correctional Investigator, along with
any supplementary Use of Force or Occurrence Report;
(f)that the present policies with respect to
the use of mace and other spray irritants be strictly enforced; and
that over-use be discouraged by the following requirements:
(i)that medically adequate
decontamination procedures be put in effect after its use;
(ii)that, in the absence of
medical direction, the persons affected be allowed to shower, be
provided with a change of clothing, and moved from the immediate
area;
(iii)that mace continue to be
used only by specially trained staff,
(iv)that the exact amount of
mace used on every occasion be properly recorded, by the mace can
being weighed after each use, and the weight recorded;
(v)that mace be issued to an
institution only in small quantities, and that re-issuance only be
done after a review of the appropriateness of prior usage;
(g) that electronic cell monitoring
never be used solely as a matter of convenience, and that it be used
only when required by imminent security concerns, such as
indications of possible suicide; even in that case, camera
surveillance should not be used as a substitute for frequent rounds
which permit human contact and ensure effective monitoring of the
condition of the inmate;
(h)that appropriate measures be put in place
to ensure that men do not observe on camera the private activities
that women may be engaged in in their cells, and that inmates are
aware of the procedures by which their privacy is protected, such as
a by light signal indicating whether the camera is on or off;
(i)that the women who were the subject of
the cell extractions conducted by the male IERT on April 26/27,
1994 and who were kept in prolonged segregation afterwards, be
properly compensated by the Correctional Service of Canada for the
infringement of all their legal rights as found in this report,
commencing on April 22, 1994.
ENDNOTES
1. Bonta, J., Pang, B. and
Wallace-Capretta, S. (1995) ``Predictors of Recidivism Among
Incarcerated Female Offenders.'' The Prison Journal 75(3):277-294,
p.292.
2. The Task Force on Federally
Sentenced Women. (1990) Creating
Choices: Report of the Task Force on Federally Sentenced
Women. Ottawa: Correctional Service of Canada.
3. Solicitor General's Special
Committee on Provincially Incarcerated Women. (1992) Blueprint for Change. Halifax: Department
of Justice.
4. Women's Issues Task Force. (1990)
Women's Voices, Women's Choices: Report of
The Women's Issues Task Force. Toronto: Minister of the
Solicitor General and Correctional Services.
5. Doody, Peter, Transcript of Proceedings, Final
Submissions, Commission of Inquiry into Certain Events at the
Prison for Women in Kingston, p.8340.
6. Sub-Committee on the Penitentiary
System in Canada. (1977) Report to
Parliament. (MacGuigan Report).
Ottawa: Ministry of Supply and Services Canada.
7. Advisory Committee to the Solicitor
General of Canada on the Management of Correctional Institutions.
(1984) Report. Ottawa: Ministry of the
Solicitor General of Canada, p.53.
8. Lemonde, L. ``L'Évolution des
normes dans l'institution carcérale.'' (1995) Canadian Journal of Law & Society,
10(1), p.137.
9. ibid,
p.165.
10. Dumont, H. (1993) Pénologie, le droit canadien relatif aux peines
et aux sentences. Montréal: Les Editions Thémis, p.289.
11. Jackson, M. (1983) Prisoners of Isolation: Solitary Confinement in
Canada. Toronto: University of Toronto Press, p.243.
Also
see Jackson, M. (1988a) Justice Behind the
Walls: A Report of the Canadian Bar Association Committee on
Imprisonment and Release. Ottawa: Canadian Bar Association.
12. Vantour, J. (1975) Report of the Study Group on Dissociation.
Ottawa: Ministry of the Solicitor General of Canada.
Gendreau,
P. and Bonta, J. (1984) ``Solitary Confinement is Not Cruel and
Unusual Punishment: People Sometimes Are!'' Canadian Journal of Criminology
26:467-478
Bonta,
J. and Gendreau, P. (1990) ``Re-examining the Cruel and Unusual
Punishment of Prison Life.'' Law and Human
Behaviour 14(4):347-372.
Roberts,
J. and Jackson M. (1991) ``Boats Against the Current: A Note on the
Effects of Imprisonment.'' Law and Human
Behaviour 15(5):557-562.
13. Bonta and Gendreau, ibid, p.364.
14. Zubek, J., Bayer, L. and Shephard,
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56. Canadian Human Rights Commission
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57. Canadian Human Rights Commission
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58. Alpert, G. and Crouch, B. (1991)
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65. Transcript
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66. Transcript
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67. The Task Force on Federally
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69. Women's Legal Education and Action
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70. Crawford, Wayne, Transcript of Proceedings, Phase II.
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71. Transcript
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72. Marie-AndrJe Cyrenne, Transcript of Proceedings, Phase II.
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73. Zupan (1992), supra.
74. Proudfoot, P. (1978) Report of the British Columbia Royal Commission
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75. Task Force on Aboriginal Peoples
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C. (1990) ``The Role of Sentencing in the Over-representation of
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C. (1995) Response to Questions for the
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76. Jackson (1988b), supra, p.1.
77. LaPrairie (1990), supra; (1995), supra.
78. Correctional Service of Canada.
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79. Sugar, F. and Fox, L. (1990) Survey of Federally Sentenced Aboriginal Women
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80. Aboriginal Justice Inquiry of
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81. Shaw, M. (1994) Ontario Women in Conflict with the Law
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82. Shaw (1994), supra.
83. Sugar and Fox (1990), supra.
Shaw
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84. Shaw (1994), supra.
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86. Shaw (1994), supra.
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87. Shaw (1994), supra.
88. Correctional Service of Canada
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89. Correctional Service of Canada
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90. Twins, Joey, Transcript of Proceedings, Phase II.
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91. Sugar and Fox (1990), supra, p.10.
92. Women's Legal Education and Action
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93. Transcript
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Events at the Prison for Women in Kingston, p.1053.
94. Lavallee, Joan, Transcript of Proceedings, Phase II.
Commission of Inquiry into Certain Events at the Prison for Women in
Kingston, p.1016.
95. Transcript
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Events at the Prison for Women in Kingston, p.1046.
96. Correctional Service of Canada.
(n.d.) Healing Lodge Programme Strategy for
Federally Sentenced Women. Ottawa: Correctional Service of
Canada.
97. Canadian Committee on Corrections.
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98. Canadian Committee on Corrections
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99. Friedland, M. (1988) Sentencing Structure in Canada: Historical
Perspective. Research Reports of the Canadian Sentencing
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100. Royal Commission to Investigate
the Penal System of Canada. (1938) Report of
the Royal Commission to Investigate the Penal System in Canada
(Report). Ottawa: King's Printer.
Committee Appointed to Inquire into the Principles and Procedures
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Queen's Printer.
101. Canadian Committee on Corrections
(1969), supra.
Friedland
(1988), supra, p.26.
102. Canadian Committee on Corrections
(1969), supra, p.401.
103. Royal Commission on the Status of
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104. Federal/Provincial Policy Review.
(1990) The History of Federal-Provincial
Exchange of Services Agreements. Ottawa: Correctional Service of
Canada.
105. Task Force on Federally Sentenced
Women (1990), supra, p.81.
106. Ross, R. and Fabiano, E. (1985)
Correctional Afterthoughts: Programs for
Female Offenders. Ottawa: Ministry of the Solicitor General of
Canada.
Cooper,
S. (1993) ``The Evolution of the Federal Women's Prison.'' in E.
Adelberg and C. Currie (Eds) In Conflict
with the Law. Vancouver: The Press Gang, pp.33-49.
Ekstedt,
J. and Griffiths, C. (1988) Corrections in
Canada: Policy and Practice. Toronto: Butterworths.
Carrigan,
D.O. (1991) Crime and Punishment in Canada:
A History. Toronto: McClelland and Stewart.
Faith,
K. (1993) Unruly Women: The Politics of
Confinement and Resistance. Vancouver: The Press Gang.
107. Adelberg, E. and Currie, C.
(1987) Too Few to Count: Canadian Women in
Conflict with the Law. Vancouver: The Press Gang.
108. Brown Commission. (1849) Report of the Royal Commission to Inquire and
then Report upon the Conduct, Economy, Discipline, and Management of
the Provincial Penitentiary (Brown Report). Ottawa: Journals of
the Legislative Assembly.
109. Briggar, Nickle and Draper
Commission. (1921) Report of the Committee
Appointed by the Right Honourable J.C. Doherty, Minister of Justice
to Advise Upon the Revision of the Penitentiary Regulations and the
Penitentiary Act. Ottawa: Department of Justice.
110. Nickle, W. (1921) Report on the State and Management of the
Female Prison at the Kingston Penitentiary. Kingston, Ontario.
111. Royal Commission on
Penitentiaries. (1914) Report of the Royal
Commission on Penitentiaries (Macdonnell Commission). Ottawa:
King's Printer.
112. Royal Commission to Investigate
the Penal System of Canada. (1938) (Archambault Report), supra.
113. Gibson, R.B. (1947) Report of General R.B. Gibson Regarding the
Penitentiary System in Canada. Ottawa: King's Printer.
114. Committee Appointed to Inquire
into the Principles and Procedures Followed in the Remission Service
of the Department of Justice. (1956) (Fauteux Report), supra.
115. Canadian Committee on
Corrections. (1969) (Ouimet Report), supra.
116. Royal Commission on the Status of
Women. (1970) supra.
117. National Advisory Committee on
the Female Offender. (1977) Report of the
National Advisory Committee on the Female Offender (Clarke
Report). Ottawa: Ministry of the Solicitor of Canada.
118. Sub-Committee on the Penitentiary
System in Canada (1977) (MacGuigan
Report), supra.
119. National Planning Committee on
the Female Offender. (1978) Report of the
National Planning Committee on the Female Offender (Needham
Report). Ottawa: Ministry of the Solicitor General of Canada.
120. Joint Committee to Study the
Alternatives for the Housing of the Federal Female Offender. (1978)
Report of the Committee (Chinnery
Report). Ottawa: Ministry of the Solicitor General of Canada.
121. Berzins, L. and Dunn, S. (1978)
Progress Report on the Federal Female
Offender Program. Ottawa: Correctional Service of Canada.
122. Canadian Advisory Council on the
Status of Women. (1979) Ten Years Later.
Ottawa: Canadian Advisory Council on the Status of Women.
123. Canadian Human Rights Commission.
(1988b) Annual Report. Ottawa: Canadian
Human Rights Commission.
124. Jackson (1988a), supra.
125. Standing Committee on Justice and
Solicitor General. (1988) Review of
Sentencing, Conditional Release and Related Aspects of Corrections
(Daubney Report). Ottawa: Ministry of Supply and Services
Canada.
126. The Task Force on Federally
Sentenced Women (1990), supra.
127. Berzins, L. and Cooper, S. (1982)
``The Political Economy of Correctional Planning for Women: the Case
of the Bankrupt Bureaucracy.'' Canadian
Journal of Criminology 24:399-416.
Shaw
(1991a), supra.
Hannah-Moffat,
K. (1991) ``Creating Choices or Repeating History: Canadian Female
Offenders and Correctional Reform.'' Social
Justice 18(3):184-203.
Adelberg
and Currie (1993), supra.
128. Gibson (1947), supra, p.10.
129. Committee Appointed to Inquire
into the Principles and Procedures Followed in the Remission Service
of the Department of Justice. (1956) (Fauteux Report), supra, p.41.
130. Canadian Committee on
Corrections. (1969) (Ouimet Report), supra.
131. Federal/Provincial Policy Review
(1990), supra.
132. Royal Commission on the Status of
Women in Canada (1970), supra.
133. Royal Commission on the Status of
Women in Canada (1970), supra, p.417.
134. Canadian Corrections Association.
(1967) Indians and the Law. Ottawa:
Department of Indian Affairs and Northern Development.
135. National Advisory Committee on
the Female Offender (1977), (Clarke
Report), supra.
136. National Planning Committee on
the Female Offender (1978), (Needham
Report), supra.
137. Joint Committee to Study the
Alternatives for the Housing of the Federal Female Offender (1978),
(Chinnery Report), supra.
138. National Planning Committee on
the Female Offender (1978), (Needham
Report), supra, p.48.
139. Jackson (1988a), supra.
140. Standing Committee on Justice and
Solicitor General (1988), (Daubney
Report), supra.
141. Jackson (1988a), supra, p.239.
142. Standing Committee on Justice and
Solicitor General (1988), (Daubney
Report), supra, p.233.
143. Federally Sentenced Women
Program. (1995) Security Management System:
Federally Sentenced Women Facilities. Ottawa: Correctional
Service of Canada, unpublished.
144. Cole, D. and Manson A. (1990) Release from Imprisonment: The Law of
Sentencing, Parole and Judicial Review. Toronto:
Carswell.
Lemonde
(1995), supra.
Dumont
(1993), supra.
Mushlin,
M. (1993) Rights of Prisoners. Second
Edition, Colorado Springs.
See
also Horii v. Commr. of Corrections
(1987), 62 C.R. (3d) 240, the unsuccessful challenge of an
inmate from British Columbia who sought an interlocutory injunction
to prevent CSC from transferring her back to Prison for Women after
a temporary transfer allowing her to be close to her ailing husband
in British Columbia, in which it was alleged that the absence of a
federal penitentiary for women outside of Ontario was discriminatory
on the basis of sex and therefore contrary to s.15 of the Charter.
In
another case, Horii v. Canada, [1992] 1
F.C. 142 (C.A.), the same inmate was successful in preventing by
interlocutory injunction her transfer to the Burnaby Correctional
Centre for Women (BCCW). Applying the appropriate standard, the
court concluded that her transfer to a provincial institution
without her consent solely because she was a woman was a serious
issue, and that since she had been successfully following university
courses which would not have been available at BCCW, immeasurable
and irreparable harm would be caused by the transfer. Finally, since
the inmate had been in the institution from which transfer was
sought, the balance of convenience was in favour of maintaining the
status quo.
145. Women for Justice. (1980) Brief to the Canadian Human Rights
Commission. Ottawa: Women for Justice.
146. Kendall, K. (1993) Literature Review of Therapeutic Services for
Women in Prison. Ottawa: Ministry of the Solicitor General of
Canada, Corrections Branch.
147. Canadian Corrections Association
(1967), supra.
148. Solicitor General's Special
Committee on Provincially Incarcerated Women (1992), supra.
149. Commission on Systemic Racism in
the Ontario Criminal Justice System. (1994) Racism Behind Bars: The Treatment of Black and
Other Racial Minority Prisoners in Ontario Prisons (Interim
Report). Toronto: Queen's Printer.
150. Commission on Systemic Racism in
the Ontario Criminal Justice System. (1995) Report of the Commission on Systemic Racism in
the Ontario Criminal Justice System. Toronto: Queen's
Printer.
151. Federally Sentenced Women
Program. (1994) Foreign Nationals: Needs
Identification Meeting with Foreign National Federally Sentenced
Women. Ottawa: Correctional Service of Canada, unpublished.
152. Ekstedt and Griffiths (1988), supra.
153. Sub-Committee on the Penitentiary
System in Canada (1977) (MacGuigan
Report), supra, p.134.
154. Bonta (1995), supra.
APPENDICES
APPENDIX A
Contractors
Acart Graphic
Services Inc. Bert's Catering Canada Communication Group Computer Hardware & Information Protection
Services (CHIPS) Inc. Centre of Criminology
Library, University of Toronto Delta Media
Inc. ExecuTrans Farr & Associates Reporting Inc. First Canadian Cleaners Inc. Folio Publications Management Foxfire (Consulting) Inc. Government Conference Centre Keeley Reporting Services Inc. Kingston City Police Kingston Holiday Inn Waterfront Kingston Ramada Inn Libraxus Inc. Ontario
Provincial Police Public Works and
Government Services Canada, Translation Bureau Spetch Associates Inc. The King Edward Hotel Toronto Legal Copies Inc. Tory, Tory, DesLauriers & Binnington Trottier Communication Marketing Inc.
APPENDIX B
WITNESSES AT THE HEARINGS
In order of
appearance
Kulik, Irving, Deputy Commissioner, Ontario
Region, Correctional Service of Canada
LeBlanc, Thérèse Warden, Prison for Women
Twins, Joey Inmate
Vance, Cathy Correctional Officer, Prison
for Women
Morrison, Brenda, Inmate
Boston, Linda Correctional
Officer, Prison for Women
Gillis, Gerry Correctional Supervisor,
Prison for Women
Dafoe, Tom Correctional Supervisor,
Coordinator, IERT, Kingston Penitentiary
Doe, John #1 Team Leader, IERT
Power, Anne Correctional Officer, Prison for
Women
Waller, Rick Institutional Preventative
Security Officer, Prison for Women
Bater, Robert Chair, Citizens' Advisory
Committee
Bertrim, Tracy Correctional Officer, Prison
for Women
Warnell, Donald Correctional Supervisor,
Prison for Women
Hilder, Barbara Unit Manager, Prison for
Women
Pearson, Mary Institutional Physician
Morrin, Donna Deputy Warden, Prison for
Women
Cassidy, Mary Warden, Prison for Women
Grant, Janis Regional Administrator,
Correctional Operations, Correctional Service of Canada
Pate, Kim Executive Director, Canadian
Association of Elizabeth Fry Societies
Graham, Andrew Senior Deputy Commissioner,
Correctional Service of Canada
Edwards, John Commissioner, Correctional
Service of Canada
APPENDIX C
PHASE II
PARTICIPANTS IN THE
ROUNDTABLES
NOVEMBER 14, 1995
PROGRAMME AND TREATMENT NEEDS OF FEDERALLY SENTENCED
WOMEN
Shelley Gavigan Moderator
Hon. Louise Arbour Commissioner
Patricia Jackson Commission Counsel
Guy Cournoyer Commission Associate Counsel
Tammy Landau Commission Senior Research and
Policy Advisor
Kelly Hannah-Moffat Commission Research and
Policy Advisor
Jill Atkinson Resource Person
Marie-Andrée Bertrand Resource Person
Louise Biron Resource Person
Bonnie Diamond Resource Person
Heather McLean Resource Person
Marie-Andrée Cyrenne Correctional Service of
Canada
Hilda Vanneste
Lynn Ray Union of Solicitor General
Employees
Linda McLaughlin
Gail Stoddart Inmate Committee
Harriet Lynch
Tracy Armstrong Native Sisterhood
Joey Twins
Nathalie Spicer Correctional Investigator of
Canada
Ed McIsaac
Kim Pate Canadian Association of Elizabeth
Fry
Pam Anderson Societies (CAEFS)
Joycelyn Pollock Women's Legal Education and
Action Fund
Harriet Sachs (LEAF)
NOVEMBER 15, 1995
LONG-TERM INMATES
Marie-Andrée Bertrand Moderator
Hon. Louise Arbour Commissioner
Patricia Jackson Commission Counsel
Guy Cournoyer Commission Associate Counsel
Tammy Landau Commission Senior Research and
Policy Advisor
Kelly Hannah-Moffat Commission Research and
Policy Advisor
Louise Biron Resource Person
Bonnie Diamond Resource Person
Shelley Gavigan Resource Person
Ted Bannon Correctional Service of Canada
Jim Vantour
Lynn Ray Union of Solicitor General
Employees
Linda McLaughlin
Connie Turner Inmate Committee
Harriet Lynch
Tracy Armstrong Native Sisterhood
Joey Twins
Nathalie Spicer Correctional Investigator of
Canada
Ed McIsaac
Kim Pate Canadian Association of Elizabeth
Fry
Pam Anderson Societies (CAEFS)
Harriet Sachs Women's Legal Education and
Action Fund (LEAF)
NOVEMBER 15, 1995
HEALTH ISSUES FOR FEDERALLY SENTENCED WOMEN
Shelley Gavigan Moderator
Hon. Louise Arbour Commissioner
Patricia Jackson Commission Counsel
Guy Cournoyer Commission Associate Counsel
Tammy Landau Commission Senior Research and
Policy Advisor
Kelly Hannah-Moffat Commission Research and
Policy Advisor
Louise Biron Resource Person
Bonnie Diamond Resource Person
Lucie Poliquin Correctional Service of
Canada
Ted Bannon
Lynn Ray Union of Solicitor General
Employees
Linda McLaughlin
Gail Stoddart Inmate Committee
Harriet Lynch
Georgia Davis Native Sisterhood
Joey Twins
Nathalie Spicer Correctional Investigator of
Canada
Ed McIsaac
Kim Pate Canadian Association of Elizabeth
Fry
Pam Anderson Societies (CAEFS)
Harriet Sachs Women's Legal Education and
Action Fund (LEAF)
NOVEMBER 16, 1995
WORKPLACE ISSUES
John D. McCamus Moderator
Hon. Louise Arbour Commissioner
Patricia Jackson Commission Counsel
Guy Cournoyer Commission Associate Counsel
Tammy Landau Commission Senior Research and
Policy Advisor
Kelly Hannah-Moffat Commission Research and
Policy Advisor
Katherine Swinton Resource Person
Glenn Thompson Resource Person
Ted Bannon Correctional Service of Canada
Marie-Andrée Cyrenne
Lynn Ray Union of Solicitor General
Employees
Linda McLaughlin
Harriet Lynch Inmate Committee
Tracy Armstrong
Brenda Morrison Native Sisterhood
Wendy Fontaine
Nathalie Spicer Correctional Investigator of
Canada
Ed McIsaac
Kim Pate Canadian Association of Elizabeth
Fry
Elaine Ash Societies (CAEFS)
NOVEMBER 21, 1995
MANAGING VIOLENCE AND MINIMIZING RISK
Anthony Doob Moderator
Hon. Louise Arbour Commissioner
Patricia Jackson Commission Counsel
Guy Cournoyer Commission Associate Counsel
Tammy Landau Commission Senior Research and
Policy Advisor
Kelly Hannah-Moffat Commission Research and
Policy Advisor
Hélène Brochu Resource Person
Grant Coulson Resource Person
Karlene Faith Resource Person
Joan Lavallee Resource Person
Elaine Lord Resource Person
Margaret Shaw Resource Person
Larry Motiuk Correctional Service of Canada
Marie-Andrée Cyrenne
Lynn Ray Union of Solicitor General
Employees
Linda McLaughlin
Harriet Lynch Inmate Committee
Tracey Thornbury-Cook
Joey Twins Native Sisterhood
Brenda Morrison
Nathalie Spicer Correctional Investigator of
Canada
Jim Hayes
Kim Pate Canadian Association of Elizabeth
Fry Societies (CAEFS)
Maureen Gabriel
Harriet Sachs Women's Legal Education and
Action Fund (LEAF)
NOVEMBER 22, 1995
CRISIS MANAGEMENT IN WOMEN'S PRISONS
Rosemary Gartner Moderator
Hon. Louise Arbour Commissioner
Patricia Jackson Commission Counsel
Guy Cournoyer Commission Associate Counsel
Tammy Landau Commission Senior Research and
Policy Advisor
Kelly Hannah-Moffat Commission Research and
Policy Advisor
Hélène Brochu Resource Person
Karlene Faith Resource Person
Michael Jackson Resource Person
Joan Lavallee Resource Person
Elaine Lord Resource Person
Patricia Monture Resource Person
Marnie Rice Resource Person
Margaret Shaw Resource Person
Jan Fox Correctional Service of Canada
Ted Bannon
Lynn Ray Union of Solicitor General
Employees
Linda McLaughlin
Veronica Brown Inmate Committee
Harriet Lynch
Gail Stoddart
Joey Twins Native Sisterhood
Brenda Morrison
Nathalie Spicer Correctional Investigator of
Canada
Ed McIsaac
Kim Pate Canadian Association of Elizabeth
Fry Societies (CAEFS)
Maureen Gabriel Carissima Mathen Women's
Legal Education and Action Fund (LEAF)
Heather McLean
NOVEMBER 23, 1995
FEDERALLY SENTENCED ABORIGINAL WOMEN IN PRISON/
THE HEALING LODGE
Scott Clark Moderator
Hon. Louise Arbour Commissioner
Guy Cournoyer Commission Associate Counsel
Tammy Landau Commission Senior Research and
Policy Advisor
Kelly Hannah-Moffat Commission Research and
Policy Advisor
Michael Jackson Resource Person
Sophia Kleywegt Resource Person
Carol LaPrairie Resource Person
Joan Lavallee Resource Person
Patricia Monture Resource Person
Brenda Restoule Resource Person
Heather Bergen Correctional Service of
Canada
Norma Green
Sonia Collins Union of Solicitor General
Employees
Linda McLaughlin
Tracy Armstrong Inmate Committee
Harriet Lynch
Wendy Fontaine Native Sisterhood
Brenda Morrison
Nathalie Spicer Correctional Investigator of
Canada
Ed McIsaac
Kim Pate Canadian Association of Elizabeth
Fry Societies (CAEFS)
Sue Hendricks Wendy Whitecloud Women's Legal
Education and Action Fund (LEAF)
NOVEMBER 28, 1995
CROSS-GENDER STAFFING IN WOMEN'S
PRISONS
Carolyn Strange Moderator
Hon. Louise Arbour Commissioner
Guy Cournoyer Commission Associate Counsel
Tammy Landau Commission Senior Research and
Policy Advisor
Kelly Hannah-Moffat Commission Research and
Policy Advisor
Marie-Andrée Bertrand Resource Person
Maeve McMahon Resource Person
Bob Boucher Resource Person
Marie-Andrée Cyrenne Correctional Service of
Canada
Wayne Crawford Union of Solicitor General
Employees
Linda McLaughlin
Kas Fehr Inmate Committee
Harriet Lynch
Veronica Brown Native Sisterhood
Georgia Davis
Nathalie Spicer Office of the Correctional
Investigator
Ed McIsaac
Kim Pate Canadian Association of Elizabeth
Fry Societies (CAEFS)
Leslie Kelman
Harriet Sachs Women's Legal Education and
Action Fund (LEAF)
NOVEMBER 29, 1995
REGIONAL FACILITIES
Anthony Doob Moderator
Hon. Louise Arbour Commissioner
Tammy Landau Commission Senior Research and
Policy Advisor
Kelly Hannah-Moffat Commission Research and
Policy Advisor
Marie-Andrée Bertrand Resource Person
Hélène Brochu Resource Person
Bonnie Diamond Resource Person
Jacqueline Fleming Resource Person
Gayle Horii Resource Person
Marie-Andrée Cyrenne Correctional Service of
Canada
Ted Bannon
Wayne Crawford Union of Solicitor General
Employees
Linda McLaughlin
Jennifer Manuel Inmate Committee
Harriet Lynch
Veronica Brown Native Sisterhood
Gail Stoddart
Nathalie Spicer Correctional Investigator of
Canada
Ed McIsaac
Kim Pate Canadian Association of Elizabeth
Fry Societies (CAEFS)
Anne Derrick
NOVEMBER 30, 1995
WOMEN'S IMPRISONMENT IN CANADA + OVERVIEW
Allan Manson Moderator
Hon. Louise Arbour Commissioner
Patricia Jackson Commission Counsel
Guy Cournoyer Commission Associate Counsel
Tammy Landau Commission Senior Research and
Policy Advisor
Kelly Hannah-Moffat Commission Research and
Policy Advisor
Jean-Paul Brodeur Resource Person
Donald G. Evans Resource Person
Jacqueline Fleming Resource Person
Hon. Inger Hansen Resource Person
Gayle Horii Resource Person
Marie-Andrée Cyrenne Correctional Service of
Canada
Larry Motiuk
Wayne Crawford Union of Solicitor General
Employees
Linda McLaughlin
Kas Fehr Inmate Committee
Harriet Lynch
Wendy Fontaine Native Sisterhood
Tracy Armstrong
Nathalie Spicer Correctional Investigator of
Canada
Ed McIsaac
Kim Pate Canadian Association of Elizabeth
Fry Societies (CAEFS)
Anne Derrick
Wendy Whitecloud Women's Legal Education and
Action Fund (LEAF)
APPENDIX D
CONSULTATIONS BY
THE COMMISSIONER AND STAFF
1. Vanier Centre for Women, Brampton,
Ontario, 29/06/95
2. Maison Tanguay, Montreal, Quebec, 6/07/95
3. Prof. Margaret Shaw, Concordia
University, Montreal, Quebec, 4/07/95
4. Prof. Louise Biron, University of
Montreal, Montreal, Quebec, 5/07/95
5. Prof. Marie-Andrée Bertrand, University
of Montreal, Montreal, Quebec, 5/07/95
6. Prof. Margaret Jackson, Simon Fraser
University, Burnaby, British Columbia, 18/07/95
7. Prof Karlene Faith, Simon Fraser
University, Burnaby, British Columbia, 18/07/95
8. Prof. Michael Jackson, University of
British Columbia, Vancouver, British Columbia, 19/07/95
9. Burnaby Correctional Centre for Women,
Burnaby, British Columbia, 20/07/95
10. Nekaneet Healing Lodge, Maple Creek,
Saskatchewan, 27/07/95
CONSULTATIONS
BY COMMISSION STAFF
1. Bob Cormier, Director and James Bonta,
Chief, Corrections Research, Ministry of the Solicitor General
Secretariat, 21/06/95
2. Hilda Vanneste, Manager, Federally
Sentenced Women's Program, Correctional Service of Canada, 21/06/95
3. Richard Zubrecki, Director General, Mary
Campbell, Director, and Ian Blackie, Policy Analyst, Ministry of the
Solicitor General Secretariat, 22/06/95
4. Tina Hattem, Independent Researcher on
women in corrections, 23/06/95
5. Carol LaPrairie, Chief of Research,
Aboriginal Justice Directorate, Department of Justice, 23/06/95
6. Gayle Horii, Strength in Sisterhood,
Vancouver, British Columbia, 20/07/95
7. Larry Motiuk, Director, Corrections
Research, Correctional Service of Canada, 30/08/95
8. Jamie Scott and Lorraine Berzins, Church
Council on Justice and Corrections, 30/08/95
APPENDIX E
RULING ON APPLICATIONS FOR
STANDING
Commission of Inquiry into Certain Events at
the Prison for Women in Kingston/Commission d'enquête sur certains
événements survenus à la Prison des femmes de Kingston
IN THE MATTER
OFan inquiry to investigate and report on the state and management
of that part of the business of the Correctional Service of Canada
that pertains to the incidents that occurred at the Prison for Women
in Kingston, Ontario, beginning on April 22, 1994 and on the
responses of the Correctional Service of Canada thereto.
EN VERTU d'une
commission revêtue du grand sceau, chargée de faire enquête et
rapport sur l'état et l'administration des affaires du Service
correctionnel du Canada en ce qui a trait aux incidents survenus à
partir du 22 avril 1994 à Kingston (Ontario), et sur les
interventions du Service correctionnel du Canada à cet égard.
APPEARANCES
A.S. Derrick
Canadian Association of Elizabeth Fry Societies (CAEFS)
P.K. Doody
Correctional Investigator T. Sloan
J.B. Edmond Commissioner of
Corrections C. Millett and
Correctional Service of Canada
A.J. MacLeod H.G.
Black Institutional Emergency Response
Team (IERT)
A.J. Raven
Public Service Alliance of Canada (PSAC)
F.J. O'Connor
Joey Twins, Sandra Paquachon, Inmate Committee, Native Sisterhood
D. Scully J. Zambrowsky On behalf of
Florence Desjarlais, Diane Shea, Ellen Young and Paula Bettencourt
D. Bailey On behalf of Brenda Morrison
C. Mathen Women's Legal Education and Action
Fund (LEAF)
M. Beare Citizens' Advisory Committee (CAC)
P.D.S. Jackson G.
Cournoyer Commission Counsel
RULING ON
APPLICATION FOR STANDING
Introduction
The principle
upon which the Commission intends to proceed with respect to
standing is stated in Rule 15 of the Proposed rules of Practice
which provides as follows:
15. Persons or
groups may apply to the Commission for standing if they consider
that their interests are put directly in issue by the Commission's
terms of reference, or that they have specia
The Commission
will conduct its proceedings in two distinct phases. Phase I will be
concerned with the determination of the factual events that took
place in the Prison for Women in April of 1994 and in the months
that followed. This may require examining the conditions as they
existed at the prison prior to these events.
Phase II will
examine the policies and practices of the Correctional Service of
Canada in relation to these incidents, their suitability and the
need for reform.
Persons or
groups who wish to participate in the work of the Commission do not
require formal standing to make written submissions to the
Commission, to contact Commission CounselI with information or
suggestions, to have the assistance of counsel if and when they are
interviewed by the Commission, or when they testify.
Standing will
permit parties to appear either personally or by counsel at the
hearings, and to cross-examine witnesses. Parties with standing will
not be allowed to call evidence, except with permission. All
proposed evidence will have to be disclosed to Commission Counsel
who will determine whether to call it.
There is
therefore considerable opportunity for persons or groups interested
in the Commission's proceedings to come forward and communicate
their information or point of view to the Commission. The Commission
will examine publicly all such information and opinion, in one of
the phases of its work, unless it considers it irrelevant or more
prejudicial to a person than probative of a fact or issue.
Entitlement to
standing must also be assessed in light of the function of
Commission Counsel. Their mandate is to bring to the hearings all
relevant information that they believe will assist in the discharge
of the Commission's mandate, without the evidentiary constraints
that would apply in a trial. They do not represent a particular
interest or point of view. Their role is not adversarial or
partisan. The need for separate standing arises when it cannot be
expected that Commission Counsel will be able to press a point of
view as forcefully as it deserves to be pressed, without
jeopardizing their neutrality and independence. It is only then that
the public interest requires that persons or groups with that point
of view be separately represented at the hearings to insure that
their interest is not lost or ignored.
It may also, in
some cases, be appropriate to give standing to persons whose conduct
is directly at issue in the proceedings, so as to permit a liberal
and generous compliance with both the letter and the spirit of s.13
of the Inquiries Act which states that:
13. No report
shall be made against any person until reasonable notice has been
given to the person of the charge of misconduct alleged against him
and the person has been allowed full opportunity to be heard in
person or by counsel. R.S., c. I-13, s.13
I now turn to
the specific applications for standing that were argued at the
hearing on June 28.
Canadian Association of Elizabeth Fry
Societies
CAEFS presented
an extensive written brief in support of its application, which is
for both standing and funding. I will return to the funding issue
below. CAEFS's application received support from many other
organizations, some of which, like the Canadian Bar Association, the
National Council of Women of Canada and the Canadian Union of Public
Employees, Ontario Division, are not themselves attempting to
participate in the Commission's proceedings, others, like LEAF and
the Strength in Sisterhood, who anticipate some participation, which
may not require standing, in the Commission's proceedings.
CAEFS is a
nationally incorporated non-profit federation of 21 autonomous
member societies across Canada. These societies are community-based
organizations working with women involved in the justice system,
particularly women in conflict with the law. Elizabeth Fry societies
have a long history of involvement in prisons for women and
represent one of the few structural links between the prison
population and the community at large. Moreover, their interest and
expertise is not limited to the prison environment, but reaches the
pre and post imprisonment context of the lives of inmates. I have no
doubt that the involvement of CAEFS will be invaluable to Phase II
of the Commission's proceedings.
As for Phase I,
I am also persuaded that the breadth of their involvement and
expertise will assist me in understanding not only what happened but
why it happened. I think that CAEFS will contribute to a fuller
understanding of the events and of the systemic issues that will
need to be addressed.
CAEFS should
therefore be granted standing for both phases of the Inquiry.
The Correctional Investigator
In light of the
statutory mandate of the Correctional Investigator, and in light of
his particular involvement in the events which led to this inquiry,
I have no doubt that the Correctional Investigator should be granted
standing to participate in both phases of the Inquiry.
The Correctional Service of Canada and the
Commissioner of Corrections
This inquiry is
directed to investigate the state and management of certain aspects
of the Correctional Service of Canada. This applicant should
therefore be granted standing to participate in all aspects of the
Commission's mandate. I note also that Mr. Edmond will represent the
employees of CSC, except those who will have notified the Commission
that they wish to be represented by other counsel.
Certain members of the Institutional Emergency
Response Team
Certain members
of the IERT at Kingston Penitentiary, who are employees of the
Correctional Service of Canada and members of the Public Service
Alliance of Canada and its component the Union of Solicitor-General
Employees (the Union), have applied for standing to participate in
both phases of this inquiry. They propose to be represented by two
different counsel. At the hearing of their application, Mr. MacLeod,
on behalf of his clients, and as agent for Mr. Harry Black, who has
been retained by the remaining members of the IERT, abandoned his
application for standing in Phase II of the inquiry, while reserving
his right to re-apply at a later stage. It is highly speculative
whether the individual members of the IERT who were involved in the
April 1994 events at the prison for Women will be personally
affected by any policy recommendation made by this Commission of
Inquiry. Even if they were to be somewhat affected, I cannot see, at
this point, how they can have a personal interest, different from
that of their employer and their union, that could not adequately be
put before the Commission by Commission Counsel so as to deserve
independent representation. They may re-apply at the outset of Phase
II, if they wish.
As for their
participation in Phase I, I do not believe that they have any
interest or expertise within the meaning of Rule 15, in anything but
the events in which they were directly personally involved. To the
extent that allegations may be made about the manner in which they
performed their duties, I think that they should be granted standing
for the portions of Phase I which will deal with these events.
I will return below to their request for funding.
PSAC and the Union of Solicitor-General
Employees
The Union seeks
standing for both phases of the inquiry and offers to represent any
of its members who may need legal representation and choose not to
be represented by counsel for the Correctional Service of Canada. I
have no difficulty with the Union's request for standing in Phase
II. Not only will its members be directly affected by any
recommendations made by the Commission, but the interest, concerns
and expertise of front-line employees cannot be ignored in the
formulation of fair and manageable operational procedures.
As for Phase I,
on many issues, the Union may find itself in the same interest as
the Correctional Service, in which case I would expect that only one
cross-examination would be conducted. However, there are also many
factual matters on which the Union and the Correctional Service may
differ, particularly with regard to the institutional environment at
the Prison for Women in the time period leading to the events in
question, and immediately thereafter. I am therefore prepared to
grant standing to the Union for both phases of the Inquiry, subject
to the restrictions on the right to cross-examine that will be
imposed on all the parties having a similar interest on any given
issue.
The Inmate Committee
There is at the
Prison for Women an inmate committee which serves as a liaison
between the administration and the inmates. The members of that
committee are elected by the inmates and represent the general
interest of the prison population. The incidents under investigation
did not directly involve the entire body of inmates, although the
measures taken in response may well have had an impact on everyone
at the prison. Mr. O'Connor, who appeared on behalf of the Inmate
Committee, indicated that the Committee wishes to participate in
both phases of the Commission's mandate, and is also seeking
funding. As in the previous cases, I will defer any consideration of
funding for the time being. Mr. O'Connor indicated that the
Committee considered it imperative that the individual inmates
involved in the April 1994 incidents be represented before the
Commission, and that their representation had to be given priority.
I think that the
Inmate Committee should be involved in both phases of the
proceedings. I believe that the inmates must have an input in the
examination of the policies and procedures that govern the types of
situation under investigation. As for Phase I, it is likely that the
Committee and its wide membership have information and a perspective
that will be relevant to a proper understanding of what took place
at the prison in April of 1994. Although the Inmates Committee's
interests may overlap with that of others on some issues, the
Committee has chosen to be represented by counsel who will also
represent one or more of the individual inmates, and therefore the
standing of the Committee is unlikely to add undue delay or expense,
while permitting the wide participation of all those who were
affected by the events of the spring of 1994.
The Native Sisterhood
Mr. O'Connor
also appeared at the standing hearing on behalf of the Native
Sisterhood. At that time he emphasised the need for the Sisterhood
to participate in the policy phase of the inquiry. I agree with that
submission. There is every reason to believe that native inmates
have a unique perspective and a unique contribution to make to that
portion of the proceedings.
Subsequent to
the hearing, Mr. O'Connor wrote to Commission Counsel to expand upon
his oral submission. More specifically, Mr. O'Connor indicated that,
contrary to his assumption at the time he made his oral submissions,
there are allegations that racially discriminatory remarks may have
been involved in the incidents under consideration by the
commission. Mr. O'Connor therefore urges the commission to grant
standing to the Native Sisterhood in both phases of the Inquiry.
The additional
information communicated to the Commission by Mr. O'Connor is
insufficient, in my view, to require the formal participation of the
Native Sisterhood in the fact-finding portion of the inquiry.
Discrimination, particularly systemic discrimination, will be better
suited for examination in Phase II. In Phase I, all relevant
information will have to be presented through Commission Counsel. I
note the fact that the Sisterhood is represented by
Mr. O'Connor, who will be representing other parties with
standing, including, as I understand it, at least one native inmate.
Should the need arise for the Native Sisterhood to be permitted to
cross-examine, Mr. O'Connor may renew this standing application
in light of the facts as they will then emerge.
The Native Women's Association of
Canada
For the same
reasons as in the previous case, NWAC will have standing to
participate in Phase II of the Commission's work, but not in Phase
I, although the Commission welcomes any input from that organization
into the fact-finding process, through co-operation with Commission
Counsel.
Individual inmates
Eight individual
inmates, all directly involved in the incidents under investigation,
have requested standing to participate in both phases of the
inquiry, and have also requested funding. I will return to their
funding request below. As for standing, there is little basis upon
which to distinguish their respective applications.
Joey Twins and Patricia Emsley are represented by Mr.
O'Connor. Sandra Paquachonis also represented by Mr. O'Connor, who
is acting as agent for Mr. Donald Worme, from Saskatoon.
Florence Desjarlais, Diane Shea, Ellen Young and Paula Bettencourtare represented by
Mr. Scully and Mr. Zambrowsky. They have advised that only one
counsel would be in attendance on behalf of these four inmates, on
any given day, thereby minimizing the cost of legal representation
while maintaining for the inmates the principle of representation by
counsel of their choice.
Brenda Morrison is represented by Mr.
Bailey.
These eight
inmates have, in my view, a sufficient interest to be granted
standing in Phase I of the inquiry. Moreover, I cannot discern at
the outset whether and to what extent their respective individual
interests may diverge. Some are still incarcerated and will be for a
long time. Others have since been released. Their involvement in the
incidents under investigation varies, and the treatment that they
received as a result of their involvement was a personal, not a
collective treatment. I think that they are entitled to individual
standing. They will obviously often find themselves in a community
of interest as far as their right to cross-examine is concerned, and
I will expect and enforce a single cross-examination on all issues
where this appears to be the case. I am greatly encouraged by the
co-operative attitude demonstrated so far by counsel retained by the
inmates and I suspect that the attendance of all three lawyers on
any given day will not usually be necessary. Technically, the
inmates' personal standing should be limited to the events in which
each one was personally implicated. Since many are represented by
the same counsel, I think it would serve no useful purpose at this
stage to attempt further to restrict their participation in either
phase. I am confident that counsel's cooperation will achieve the
desired result.
Two types of
submissions were made in support of the individual inmates' request
for standing in Phase II, the policy phase of the inquiry. On the
one hand it was argued on behalf of Ms Twins that any policy
recommendation will affect her for a very long time as she is
serving a life sentence. Others will be in custody long enough that
they are also likely to be affected by the implementation of any
recommendation made by this Commission.
Several of the
inmates involved in the April 1994 incidents have since been
released. However, they submit that their participation in Phase II
will permit them to be forceful advocates for change, since they
have no fear of retaliation from the prison authorities for the
stance that they will take.
I am not
persuaded that the individual inmates who will participate in Phase
I have such a personal interest, distinct from the interest and
point of view of the groups of inmates who have been granted
standing in Phase II, that they must be personally separately
represented in that phase of the Commission's work. The Commission's
recommendations will have the potential of affecting the living
conditions of many federally sentenced women serving long sentences.
The participation of those and indeed of all inmates in Phase II is
highly desirable. I think that such participation will be more
effective if it is done on a collective basis. Should it prove
impossible to represent adequately the many points of view within
the Prison for Women through the Inmates Committee and The Native
Sisterhood, I would hope that other groups, even if they were
informally structured, such as representatives of "B" or "A" range,
could come forward. As was the case with the standing request of the
individual IERT members to participate in Phase II, this request by
individual inmates for standing in Phase II may be renewed after
Phase I if it then appears necessary.
Women's Legal Education and Action
Fund
LEAF's proposed
participation in the inquiry does not require standing as defined in
Rule 15. LEAF's intended participation is limited to Phase II, and I
welcome their contribution to the commission's proceedings at that
stage. LEAF will be permitted to make written and oral submissions
and arrangements may be made with Commission Counsel to ensure that
other written submissions received by the Commission are forwarded
to LEAF for consideration and comments.
Citizens' Advisory Committee
Although Ms
Beare made some submissions in support of a request for standing and
funding for both phases of the inquiry, further submissions were to
be made in writing since the Committee had insufficient time to
prepare for the standing hearing. I have now received and considered
these additional submissions. Margaret Beare and Bob Bater, the two
CAC members who were involved in the incidents under investigation,
wish to be granted standing and funding for both phases of the
inquiry. It is likely that Ms. Beare or Mr. Bater or both of
them will be important witnesses and that they have a unique
perspective into the events under investigation. Their standing in
Phase I, however, should be confined to the events in which they
were directly involved. I will address their request for funding
below. As for Phase II, I am less certain whether it is Ms.
Beare and Mr. Bater who should be granted standing in that phase, or
whether the CAC presently in place at the Prison for Women, or
representatives of CAC's at some of the new regional facilities, if
they are in place, would be more appropriate. I therefore deny them
standing in Phase II. However, CAC's application for standing in
Phase II may be renewed in light of the concerns that I have
expressed.
Funding
I have
recommended to the Solicitor General that funding be extended to
some persons or groups who have been granted standing and who have
requested financial assistance namely the individual inmates, the
Inmate Committee, the CAEFS and the Native Sisterhood. As for the
CAC members, I think that their interest will be most fairly and
efficiently represented if they are provided with funding to obtain
the services of counsel for the preparation of their testimony, and
the giving of their evidence. In my view, their interest is not
sufficiently distinct from that of some of the other groups to
justify the funding of counsel throughout Phase I. In the case of
the individual IERT members who have been granted limited standing
to participate in parts of Phase I, I am not persuaded that they
have a personal interest that could not adequately be represented
through counsel for their employer or their union, both of whom have
offered to represent them. In these circumstances I would not
recommend that their choice to be represented by a different counsel
be financially supported.
In the case of
the Inmates, the Inmates' Committee and the Native Sisterhood, I
believe that their participation in the hearings will assist in a
just disposition of the issues and that they will be deprived of an
opportunity to participate unless public funds are made available to
them. They have been unsuccessful in their attempt to be assisted
through the Ontario Legal Aid Plan. Needless to say, in the case of
many of the individual inmates, personal attendance, without
counsel, is not an option.
As for CAEFS, it
is a voluntary non-profit organization which could not sustain an
effective legal representation in these proceedings solely out of
its operational budget.
As soon as a
decision is made with respect to funding, that decision, and the
applicable guidelines, will be communicated to all concerned
parties.
I have made
these decisions on standing expecting that those who would be unable
to participate without funding would receive some financial
assistance. Should that not be the case, I may have to reconsider
all the standing issues in order to avoid having to proceed with an
inappropriate distribution of interests and perspectives.
Released: July
10, 1995
APPENDIX F
RULES OF PROCEDURE AND PRACTICE
I. HEARINGS
1. Insofar as it
needs to gather evidence, the Commission is committed to a process
of public hearings. However, applications may be made to proceed in camera or otherwise to preserve the
privacy of an individual or the confidentiality of information where
it is necessary in the public interest. Such applications should be
made in writing at the earliest possible opportunity.
2. The
Commission's proceedings will be divided into two phases. Phase I
will focus on the incidents and the appropriateness of the response.
Phase II will be concerned with the policy issues which emerge from
the Commission's terms of reference.
3. In Phase II
of the proceedings, the Commission may convene public meetings at
which briefs may be presented, experts may be heard or discussions
may be conducted on pre-selected topics.
4. Everyone may
address the Commission in either official language. Simultaneous
translation is available.
5. All parties
and their counsel shall be deemed to undertake to adhere to these
Rules, which may be amended or dispensed with by the Commission as
it sees fit. Any party may raise any issue of non-compliance with
the Commissioner.
II. STANDING
6. Commission
Counsel, who will assist the Commission throughout the Inquiry and
ensure the orderly conduct of the Inquiry, have standing throughout
the Inquiry.
7. Persons or
groups may apply to the Commission for standing if they consider
that their interests are put directly in issue by the Commission's
terms of reference, or that they have special experience or
expertise with respect to the Commission's mandate.
8. The
Commissioner will determine who has standing to participate in
Commission proceedings and the extent of such participation.
9. A party who
is granted standing is entitled to cross-examine witnesses and make
written or oral submissions. Parties may be granted standing to
participate in the two phases, or in only one, or in only parts of
each phase.
10. The term
"party" is used to convey the grant of standing and is not intended
to convey notions of an adversarial proceeding.
11. Counsel
representing witnesses called to testify before the Commission may
participate during the hearing of such evidence, as provided in
these rules.
III. EVIDENCE
(A) General
12. Except with
the permission of the Commissioner, all evidence will be presented
by Commission Counsel.
13. The
Commission is entitled to receive any relevant evidence which might
otherwise be inadmissible in a court of law. The strict rules of
evidence will not apply to determine the admissibility of evidence.
The Commissioner will determine whether to admit the evidence on the
basis of its relevance, and upon balancing its probative value
against its prejudicial effect.
14. Parties
shall provide to Commission Counsel the names and addresses of all
witnesses they consider may have information relevant to the Inquiry
and copies of all relevant documentation, at the earliest
opportunity. In addition, parties shall provide Commission Counsel
with any documents that they intend to file as exhibits or otherwise
refer to during the hearings at the earliest opportunity, and in any
event, no later than 24 hours prior to the day the document will be
referred to or filed.
15. Documents or
information received by Commission Counsel from any source shall be
treated as confidential by the Commission unless and until it is
made part of the public record. This rule does not preclude the
Commission from disclosing documents or information to any person
where it considers it necessary to its investigation.
16. Commission
Counsel will make reasonable efforts to provide in advance to both
parties and witnesses to the extent of their interest, the
documentary evidence that will be referred to during the course of
the hearing.
17. Counsel to
parties and witnesses will be provided with copies of documents and
disclosure of other documents or information only upon giving an
undertaking that all such documents or information will be used
solely for the purposes of the Inquiry and, where the Commission
considers it appropriate, that its disclosure will be further
restricted. Counsel are entitled to disclose such documents or
information to their respective clients only on terms consistent
with the undertakings given, and upon the clients entering into
written undertakings to the same effect. These undertakings will be
of no force regarding any document or information once it has become
part of the record of the public hearing. The Commission may, upon
application, release any party in whole or in part form the
provisions of the undertaking in respect of any particular document
or other information.
18. Commission
Counsel have a discretion to refuse to call or present evidence.
19. At the end
of a phase of the proceedings, a party may apply to the Commissioner
for leave to call a witness whom the party believes has relevant
evidence. If the Commissioner is satisfied that the evidence of the
witness is needed, the witness shall be examined in accordance with
the normal rules governing the examination of one's own witness.
(B) Witnesses
20. Anyone
interviewed by or on behalf of Commission Counsel is entitled, but
not required, to have one counsel present for the interview.
21. Witnesses
may swear or affirm.
22. Witnesses
may request that the Commission hear evidence pursuant to a subpoena
in which event a subpoena shall be issued.
23. Witnesses
are entitled to have their counsel present while they testify.
24. Any witness
unable to speak either of the official languages will be given the
assistance of an interpreter.
25. Witnesses
may be called more than once.
(C) Order of Examination
26. The order of
examination will be as follows:
(a) Commission
Counsel will adduce the evidence from the witness. Except as
otherwise directed by the Commissioner, Commission Counsel are
entitled to adduce evidence by way of both leading and non-leading
questions;
(b) parties
granted standing to do so will then have an opportunity to
cross-examine the witness. The order of cross-examination will be
determined by the parties having standing and, if they are unable to
reach agreement, by the Commissioner;
(c) counsel for
a witness, regardless of whether or not counsel is also representing
a party, will cross-examine last, unless he or she has adduced the
evidence of that witness in chief, in which case there will a right
to re-examine the witness; and
(d) Commission
Counsel will have the right to re-examine.
27. Except
with the permission of the Commissioner, no counsel other than
Commission Counsel may speak to a witness while the witness is
giving any part of his or her evidence. Commission Counsel may not
speak to any witness while the witness is being cross-examined by
other counsel.
(D) Access to Evidence
28. All evidence
shall be classified and marked P for public sittings and, if
necessary, C for sittings in camera.
29. One copy of
the P transcript of evidence and a list of P exhibits of the
public hearings will be available to be shared by counsel for the
parties. The transcript will be kept in an office outside the
hearing room. A disk version of the transcript or an additional copy
may be ordered by anyone prepared to pay its cost.
30. Another copy
of the P transcript of the public hearings and a list of P exhibits
will be available to be shared by the media.
31. Only those
persons authorized by the Commission, in writing, shall have access
to C transcripts and exhibits.
(E) Documentary Evidence
32. The
Commission may require that originals of relevant documents be
provided.
33. Documents
will be filed in the language in which they are drawn.
IV. Media Coverage
34. The
Commission will permit a single video taping and sound recording of
the hearing by fixed camera(s), using only the available room light.
35. The video
and sound recording shall be made available through a pooling
arrangement to any other interested media organization.
36. One copy of
the video and sound recording shall be made available to the
Commission and shall become part of the record of the proceedings.
37. No other
videotaping or photography will be permitted when the hearing is in
progress.
APPENDIX G
INTERVENOR FUNDING: ORDER IN COUNCIL AND
SCHEDULE "A" GUIDELINES
HIS EXCELLENCY THE GOVERNOR GENERAL IN
COUNCIL, on the recommendation of the Solicitor General of Canada,
is pleased hereby to authorize the Solicitor General of Canada to
make ex gratia payments, in accordance with the criteria and
principles set out in Schedule "A" hereto, to assist in the payment
of the costs incurred by intervenors to the Commission of Inquiry
into Certain Events at the Prison for Women in Kingston, established
under Part II of the Inquiries Act by Order in Council P.C. 1995-608
of April 10, 1995, upon consideration of the advice and
recommendations for such payments by the Honourable Madam Justice
Louise Arbour.
COMMISSION OF
INQUIRY INTO CERTAIN EVENTS AT THE PRISON FOR WOMEN IN KINGSTON
INTERVENOR FUNDING
Within the
context of fiscal restraint, the Government has agreed to provide
assistance with regard to the costs of certain intervenors appearing
before the Commission in accordance with the following principles
and criteria:
Principles:
- Commission Counsel has the primary
responsibility for representing the public interest at the Inquiry
including the responsibility to ensure that all interests that
bear on the public interest are brought to the Commissioner's
attention.
- Intervenor participation is for the
purpose of ensuring that particular interests and perspectives,
that are considered by the Commissioner to be essential to her
mandate will be presented to her; these include interests and
perspectives that could not be put forward by Commission Counsel
without harming the appearance of objectivity that will be
maintained by Commission Counsel and which the Commissioner
believes are essential to the successful conduct of the Inquiry.
- The aim of the funding is to assist
intervenors in presenting such interests and perspectives but is
not for the purpose of indemnifying intervenors from all costs
incurred.
Criteria:
1. The
Commissioner of the Inquiry will certify that:
a) the fees and
disbursements incurred by funded intervenors' Counsel are necessary
to the presentation of interests and perspectives essential to the
successful conduct of the Inquiry and that they are consistent with
the principles and criteria established for funding of intervenor
participation in the Commission;
b) those seeking
funds have an established record of concern for and have
demonstrated their own commitment to the interest they seek to
represent. In the alternative, those seeking funds have special
experience or expertise with respect to the Commission's mandate;
c) those seeking
funds do not appear to have sufficient financial resources to enable
them adequately to represent that interest and will require funds to
do so; and
d) those seeking
funds have a clear proposal as to the use they intend to make of the
funds, and appear to be sufficiently well organized to account for
the funds.
2. Regarding
fees:
a) Counsel will
only receive funding for attendance at hearings for which such
attendance has been approved for funding purposes by the
Commissioner;
b) For those
intervenors for whom the Commissioner has recommended Counsel to
share time (these intervenors being an amalgamation of previously
separate groups of individuals) no more than one Counsel will
receive funding for any one hearing except in the unusual
circumstances that the amalgamated groups within the intervenor have
disparate interests that cannot be represented by one Counsel; for
all other intervenors, no more than one Counsel will receive funding
for any one hearing. Whether more than one Counsel should be funded
for any particular day of hearing will be in the discretion of the
Commissioner;
c) The following
are the maximum hours set for preparation, client consultation,
research and hearing time to be billed: (i) 50 hours of preliminary
preparation per Counsel prior to August 9, 1995 except with special
approval of the Commissioner; (ii) thereafter 10 hours of
preparation and hearing time for each day Counsel attends the
Inquiry;
d) Counsel fees
will be eligible for funding in accordance with Federal Department
of Justice guidelines approved for participant Counsel at
Commissions of Inquiry; and
e) Counsel fees
for intercity travel time will be eligible for funding at one-half
the normal hourly rate.
3. Counsel will
only receive funding for disbursements that would be reasonable to
incur for a client of modest means.
4. When
intercity travel is necessary, Counsel will receive funding for
travel const (including transportation, accommodation and meals) at
Treasury Board rates.
APPENDIX H
SAMPLES OF UNDERTAKINGS
UNDERTAKING OF
COUNSEL
TO THE COMMISSION
OF INQUIRY
INTO CERTAIN
EVENTS AT THE PRISON FOR WOMEN IN KINGSTON
I undertake to the Commission of Inquiry
into Certain Events at the Prison for Women in Kingston that any and
all documents or information which are disclosed to me in connection
with the Commission's proceedings will not be used by me for any
purpose other than those proceedings and for no other purpose. I
further undertake that I will not disclose any such information or
documents to anyone for whom I do not act, and to anyone for whom I
act only upon the individual in question giving the written
undertaking annexed hereto.
I understand that this undertaking has no
force or effect one any such document or information has become part
of the public proceedings of the Commission, or to the extent that
the Commissioner may release me from the undertaking with respect to
any document or information.
Signature |
Witness |
Date |
Date |
UNDERTAKING OF
PARTIES
TO THE COMMISSION
OF INQUIRY
INTO CERTAIN
EVENTS AT THE PRISON FOR WOMEN IN KINGSTON
I undertake to the Commission of Inquiry
into Certain Events at the Prison for Women in Kingston that any
document or information which is disclosed to me in connection with
the Commission's proceedings will not be used by me for any purpose
other than those proceedings and for no other purpose. I further
undertake that I will not disclose any such documentation or
information to anyone.
I understand that this undertaking will have
no force or effect with respect to any document or information which
becomes part of the public proceedings of the Commission, or to the
extent that the Commissioner may release me from the undertaking
with respect to any document or information.
Signature |
Witness |
Date |
Date |
![Address](/web/20061026013841im_/http://ww2.psepc-sppcc.gc.ca/_images/english/corrections/199681COIAddress_e.gif)
APPENDIX I
I. SAMPLES OF S. 13 NOTICES
January 5, 1996
You have not bee called to testify and there
will be no explicit unfavourable report or other findings of
misconduct naming you in the report of this Commission. However,
pursuant to s.13 of the Inquiries Act you are notified that
allegations may be made which, if accepted, may result in an
unfavourable report concerning matters in which you were involved,
which report may therefore be seen to reflect upon you.
Specifically, the Commission may be asked to
find that:
- from the evening of April 22 through
April 26, 1994 the administrative segregation unit at the Prison
for Women was not operated according to the law or to CSC policy
or otherwise appropriately in the circumstances
- the strip search on April 26 and 27, 1994
was:
-
- not conducted in accordance with the
law
- not conducted in accordance with CSC
policy
- not adequately recorded either on
video, in use of force reports or otherwise
- the body cavity searches conducted on
April 27, 1994 were:
-
- unnecessary
- conducted without effective consent
- conducted in inappropriate conditions
- the conditions of segregation of the
inmates involved in the incidents which are the subject to this
inquiry were contrary to the law and CSC policy, among other
reasons, because of deficiencies with respect to right to counsel
and access to others, daily exercise, daily visits by senior
management, personal effects, showers, laundry, programming,
desegregation plans, and use of restraints
- the duration of segregation for the
inmates involved in the incidents which are the subject of this
inquiry, the review of that segregation, and the test applied for
continued segregation were contrary to the law, and CSC policy
From: Patricia D.S. Jackson Commission Counsel Guy
Cournoyer Associate Counsel
January 5, 1996
Pursuant to s. 13 of the Inquiries Act, you
are notified that allegations may be made which, if accepted, may
result in an unfavourable report or a finding of misconduct which
relates to you.
Specifically the Commission may be asked to
make the following findings for which you may be found to bear
responsibility, because of your having directly authorized, having
failed to supervise and monitor adequately the operations of the
Correctional Service, or having failed to take appropriate
corrective action:
- on April 22, 1994 there was a failure to
do or cause to be done a thorough and timely investigation of the
incidents, including but not limited to searches, untainted
evidence gathering and preservation
- on April 22, 1994 there was a failure to
follow the law or CSC policy, including, but not limited to, use
of mace, decontamination, strip and cell searches, weapons
removal, adequate and timely reporting, and requests for
urinalysis
- from the evening of April 22 through
April 26, 1994 the administrative segregation unit at the Prison
for Women was not operated according to the law or to CSC policy
or otherwise appropriately in the circumstances
- the strip search on April 26 and 27, 1994
was:
-
- not conducted in accordance with the
law
- not conducted in accordance with CSC
policy
- not adequately recorded either on
video, in use of force reports or otherwise
- the Correctional Service failed to make
timely review and release of the video of April 26-27, 1994 to
those entitled to it
- the body cavity searches conducted on
April 27, 1994 were:
-
- unnecessary
- conducted without effective consent
- conducted in inappropriate conditions
- the choice of placement for inmates
transferred on May 6, 1994 was inappropriate
- the inmates received inadequate notice of
the transfer
- the conditions of segregation of the
inmates involved in the incidents which are the subject to this
inquiry were contrary to the law and CSC policy, among other
reasons, because of deficiencies with respect to right to counsel
and access to others, daily exercise, daily visits by senior
management, personal effects, showers, laundry, programming,
desegregation plans, and use of restraints
- the duration of segregation for the
inmates involved in the incidents which are the subject of this
inquiry, the review of that segregation, and the test applied for
continued segregation were contrary to the law, and CSC policy
- the grievance process as it applied to
the events in issue was not in compliance with the law or CSC
policy, in that the responses were not by the appropriate
individual, were not timely, and did not effectively or fairly
respond based on adequate investigation
- CSC did not properly examine and assess
the incidents examined in this inquiry, including during the board
of investigation
- the mandate of the board of investigation
was inadequately given, among other things because of the lack of
specificity in the mandate, and the time frame and resources made
available to discharge it; there was no sufficient means of
ensuring structural independence including, among other things,
because of the selection of the members, and process for editing
and release; there was inadequate direction with respect to the
compilation and preservation of relevant information
- the Correctional Service was not properly
vigilant to ensure that its statements about the events in issue,
including to the court, the public and the media, and the minister
were accurate
- the Correctional Service was not properly
vigilant to ensure that the important legal requirements which
apply to its operations, including in particular those relating to
individual rights, were known and observed within the service
- the Correctional Service did not
adequately satisfy its obligation to this Commission to produce
all relevant documents in a timely fashion and the departures from
the requirements have seriously inconvenienced the parties and the
Commission
- the replies of CSC to concerns raised by
the Correctional Investigator with respect to the incidents under
investigation did not fully or properly respond to the issues
raised, or do so in a timely fashion
To:
From: Patricia D.S. Jackson Commission Counsel Guy
Cournoyer Associate Counsel
January 5, 1996
Pursuant to s. 13 of the Inquiries Act, you
are notified that allegations may be made, which, if accepted, may
result in an unfavourable report or a finding of misconduct which
relates to you. Specifically, the Commission may be asked to accept:
- that you committed all the offences
associated with the events under examination to which you pleaded
guilty.
- that between April 22 and 26, 1994, the
inmates in segregation, of which you were one, engaged in the acts
of assault, arson, and threatening which have been described
during the Commission's proceedings. With the exception of the
allegations of hostage-taking by Sandra Pacquachon, and such acts
as have been specifically admitted by those who testified, it is
not anticipated that the actions alleged, if accepted, will be
attributed to specific individuals.
To:
From: Patricia D.S. Jackson Commission Counsel Guy
Cournoyer Associate Counsel
|