Legislation and Policies

Special Report

Protecting Their Rights A Systemic Review of Human Rights in Correctional Services for Federally Sentenced Women

Chapter 7

Strengthening Internal Responsibility for Human Rights

It is widely recognized that human rights are best served when organizations take responsibility for their policies and practices, rather than waiting for their clients or employees to complain to outside bodies.¹⁴⁷ External monitors such as the Office of the Correctional Investigator perform an invaluable function and role, but it can be difficult to impose from outside the kind of systemic change that may be needed. Moreover, an organization and the individuals associated with it benefit by taking responsibility for ensuring that it happens from within. This is particularly true in the correctional context, where ensuring human rights is so integrally linked with effective corrections.

7.1. Coordinating Efforts to Enhance Human Rights Protection

While there are positive and innovative initiatives under way throughout the Correctional Service of Canada that have the potential to enhance human rights protection, there appears to be a lack of communication and coordination. For example, an audit of the grievance system noted that one institution was handing out a “how to” brochure prepared by Inmate Affairs in 1992. The report helpfully suggests that, given the positive response to the brochure, the remaining copies be located and distributed among the institutions.¹⁴⁸ While there may be some practical merit to this suggestion, what it also highlights are the lack of systems and practices to ensure the availability of useful, up-to-date and consistent information about inmates’ rights.

In its 1997 report, Human Rights and Corrections: A Strategic Model, the Working Group on Human Rights recommended that the task of monitoring the Correctional Service’s internal human rights compliance “be assigned to a designated Human Rights Unit, headed by an individual with the appropriate seniority and having the necessary resources to carry out its mandate and report its findings directly to senior management.”¹⁴⁹ Although this recommendation led to the creation of a Human Rights Unit within the Correctional Service, the unit has since shrunk to only one permanent and one temporary position. Much of the staff’s time is taken up responding to human rights complaints filed with the Canadian Human Rights Commission, with understandably little opportunity to coordinate and support proactive initiatives to achieve equality and human rights relating to Correctional Service activities.

It is true that the scope of the Correctional Service of Canada’s operations presents challenges for coordinating and implementing a proactive approach to human rights protection. Nevertheless, the integral link between effective corrections and human rights makes it vital to do so. There is need for a focus on protecting and promoting human rights across the organization, rather than reacting to individual human rights complaints and grievances. Rectifying systemic problems before complaints arise may reduce the number of complaints filed, enhancing compliance with the Canadian Human Rights Act.

The structure of an organization can also increase accountability for human rights protection, as well as enhancing compliance. Many commentators have noted that the current position of the office of the Deputy Commissioner for Women in the overall organizational structure of the Correctional Service does not assist in bringing the needed focus and integration to women’s corrections. We note as well our concerns about the challenges for consistent human rights compliance that may result from an organizational structure in which the office of the Deputy Commissioner for Women is not directly connected to the front-line operations of women’s facilities.

7.2. The Need for an Anti-harassment Policy for Inmates

Protection against harassment is vital for incarcerated women, many of whom have already been victimized and who are traditionally disempowered. Harassment not only violates an inmate’s human rights, but it also has unique consequences in the prison environment because, unlike an employee who experiences harassment, an inmate cannot leave the place where the harassment is occurring. Harassment of inmates may lead to problems with internal security and discipline, and impede rehabilitation programming.

Numerous reports have pointed to the need for an anti-harassment policy that applies to inmates and is tailored to the needs of the correctional environment,¹⁵⁰ but such a policy has yet to be developed. Instead, inmates can file harassment complaints through the Offender Complaint and Grievance Process. Correctional Service of Canada officials have said that the “spirit” of the Treasury Board Policy on the Prevention and Resolution of Harassment in the Workplace,¹⁵¹ which applies to all Correctional Service employees, will be applied to harassment grievances from inmates. But it is unclear both what this means and whether it is being put into practice, especially since the Correctional Service’s Guiding Principles on the Prevention and Resolution of Harassment in the Workplace expressly states that “... the TB policy does not apply to complaints from the public and inmates.”¹⁵²

7.3. The Need for a Comprehensive Accommodation Policy for Inmates

The importance of accommodating individual needs and differences has been emphasized throughout this report, and is essential to human rights compliance. However, the Correctional Service does not have an adequate policy framework concerning the accommodation of inmate needs and differences relating to prohibited grounds of discrimination. Correctional Service officials told the Commission that the “spirit” of the accommodation policy that is applicable to staff¹⁵³ would apply to inmates as well. But it is unclear whether this unwritten practice is being followed, and if so, how. More guidance to Correctional Service staff with responsibility for dealing with accommodation issues in the regional facilities is necessary, and inmates need clear, up-to-date and consistent information about what their rights to accommodation are.

Although a directive on Case Management (CD-700) addresses the issue of offenders with special needs, it is not comprehensive. The only accommodation issues addressed by CD-700 relate to the accommodation of physical, intellectual and learning disabilities. Other policies, such as those dealing with inmate ethnocultural programs and psychological services, raise the issue of special needs, but the issue of accommodation is not identified as a human rights matter, nor are consistent procedures for accommodation set out. As part of its knowledge management strategy, the Correctional Service is currently revising many of its policies to reduce duplication and provide clearer guidance. Developing a single accommodation policy is one example of how this approach would enhance efforts to comply with the Canadian Human Rights Act.

7.4. Human Rights Education and Training for Inmates and Staff

Our inquiry revealed that inmates were provided with confusing and at times inaccurate information about their rights, including their human rights. The primary source of information is the handbook given to women when they first arrive at an institution. The quality and accuracy of these handbooks varied dramatically. Only one institution had a handbook with easy-to-understand and accurate information about the rights of inmates under the Canadian Human Rights Act.

Inmates need clear and up-to-date information about their rights, as well as about how to obtain access to internal redress mechanisms, the Office of the Correctional Investigator, the Canadian Human Rights Commission, the Elizabeth Fry societies and other prisoner advocacy groups, visiting officials, the police and legal assistance. They also need to be better informed about court appearances, access to information, their privacy rights and their entitlement to protection under the Canadian Charter of Rights and Freedoms. This is not happening in a consistent or timely fashion. The 2002 report of the Correctional Service of Canada Performance Assurance Sector noted a lack of procedures to ensure that offenders who are not proficient in English or French are informed of the internal grievance process.¹⁵⁴ Even when information is available in alternate formats to respond to the needs of inmates with visual limitations or low literacy levels, staff may not know about it. For example, although a video about rights and redress was sent to institutions in 1992, staff were unaware of its existence and it had not been updated in more than 10 years.¹⁵⁵

7.5. Mechanisms for Informal Dispute Resolution

The Report of the Cross-Gender Monitor raised concerns about using informal conflict or complaint resolution systems to resolve complaints about staff because of the power imbalance between inmates and staff. It notes that many federally sentenced women feel coerced by mediation because there is no neutral third party, or the person acting as mediator is not trained in conflict resolution. ¹⁵⁶

The same shortcomings may apply but with less force to the use of mediation to resolve inmate disputes, and, in fact, the Correctional Service has indicated an interest in using mediation to address conflicts and incompatibility issues between inmates. In the Commission’s experience, alternative dispute resolution can be very successfully applied for human rights issues with appropriate measures to address power imbalances, such as a clearly impartial process, adequate human rights knowledge, and a voluntary process. As the Law Commission of Canada set out in its 2003 report, Transforming Relationships through Participatory Justice, “it would be unfair to deny litigants the benefit of a participatory process because their claim involves a human rights argument.”¹⁵⁷ Issues of consistency and proper training also remain important.¹⁵⁸ We urge the Correctional Service to develop training and policies for staff involved in mediating inmate disputes to ensure a consistent and informed approach. Mediation can be a useful and appropriate tool to resolve disputes by allowing parties to participate in developing solutions to conflict, including those that engage human rights issues.

7.6. Formal Dispute Resolution Mechanism

Federally sentenced women currently lack an effective means to grieve inadequate correctional services or treatment thus increasing their sense of disempowerment and lack of control over their lives. Although section 90 of the Corrections and Conditional Release Act sets out the Correctional Service’s duty to provide a grievance system that fairly and expeditiously resolves offenders’ grievances, our review indicates that women inmates perceive the system as ineffective.

The majority of the women who were interviewed described the redress system in negative terms such as “slow and not very effective,” “takes forever” and “useless.” Some of the problems identified by the women included:

1. The absence of protection against retaliation.

2. Poor administration (lack of timeliness;¹⁵⁹ lack of communication about status of complaints; no clear results; grievances go missing or are not acknowledged).

3. Poor results¹⁶⁰ (staff pressure inmates to withdraw complaints; grievances are denied; warden does not support recommendations of successful grievances).

Correctional Service officials who were interviewed in the regions indicated that, based on their experience, the grievance system could be improved. Comments included: “the process stinks,” “it is lengthy and tedious,” “no fairness” and “procedures for inmates and staff suck.” Data provided by the Correctional Service of Canada confirm that timeliness has been a problem. In 2001–2002, more than 4 of 10 priority complaints (i.e., those considered to have a significant impact on an offender’s rights and freedoms) were not processed within established time frames. We note that the Correctional Service recently agreed to address this problem.¹⁶¹

Our review of grievance data also suggest that the coding process underlying the system is not gender-responsive. In 2002–2003, the subject matter of 6.3% of the complaints filed by women was coded as “other,” whereas only 2.4% of the complaints filed by men were coded as “other.” This suggests a need for a separate coding system for complaints from federally sentenced women to ensure that issues of concern to women can be systematically identified, monitored and addressed.

To the extent that federally sentenced women do use the grievance system, the statistics underline the importance of improving the system’s operation. Based on data provided by the Correctional Service for 2002–2003, almost 10% of the complaints filed by women dealt with harassment or discrimination compared with 2.5% of the complaints filed by men. This example illustrates how tracking statistics from the internal grievance system can be useful in highlighting systemic issues of concern to women’s corrections. We note that the Correctional Service has agreed with the recent recommendation of the Office of the Correctional Investigator that grievance data be analyzed, and we hope that this analysis will be made available to all stakeholders.¹⁶²

We recognize that there are unique challenges to using an internal grievance system in a prison environment that is necessarily characterized by a power imbalance between staff and inmates, an imbalance that is likely augmented by gender. Section 91 of the Corrections and Conditional Release Act states that “every offender shall have complete access to the offender grievance procedure without negative consequences;” however, it is unclear what real protection against retaliation inmates have. The Cross-Gender Monitor also found that women feared retaliation for lodging a grievance and did not trust the system.¹⁶³ As the Women’s Legal Education and Action Fund observed in its submission, one explanation may be that many federally sentenced women have long histories of abuse and have learned first hand of the need to remain silent.¹⁶⁴

A lack of trust may also account for the divergent views of the grievance process that were recorded in an audit of the offender grievance system by the Correctional Service’s Performance Assurance Sector. The audit did not reveal a high level of dissatisfaction with the system.¹⁶⁵ These findings are at odds with the information collected by the Commission and the Cross-Gender Monitor.

7.7. Human Rights Audits

Reactive approaches to protecting human rights redress discrimination on an “after-the-fact” basis. The damage has already been done and the costs — both collateral and direct — have been incurred. These are consequences that a proactive approach would avoid.

In 1997, the Working Group on Human Rights examined the ability of the Correctional Service of Canada to monitor its compliance with Canada’s domestic and international human rights obligations, and developed a strategic model for evaluating human rights performance.¹⁶⁶ The Working Group recommended that the Correctional Service undertake human rights audits to strengthen its corporate human rights capacity and culture; entrench human rights principles, norms and practices; and maintain a safe, humane, lawful and socially constructive correctional system. In response, the Correctional Service of Canada created the National Long Range Internal Audit Plan on Human Rights, which identifies 17 enumerated human rights¹⁶⁷ that are to be formally evaluated at least once every seven years.

So far, only one human rights audit has been completed — a review of offender access to religious and spiritual programs and services.¹⁶⁸ It is hard for the Commission to judge from just one example whether the legal and policy requirements of domestic and international human rights instruments are understood and adhered to. Although the applicable sections of the Canadian Charter of Rights and Freedoms, the Corrections and Conditional Release Act, the Universal Declaration of Human Rights, the Canadian Human Rights Act and the United Nations Standard Minimum Rules for Treatment of Offenders are listed in the audit, their application to the correctional context is not made clear. There is also a question of whether these human rights instruments, while providing the applicable foundational principles, can form the basis of a human rights accountability and evaluation framework that will produce clear and actionable recommendations, identify measurable results and establish time frames for implementation.

In the future, it may be helpful for the Correctional Service of Canada to clearly define expected results that reflect sound performance measurements of human rights outcomes prior to commencing an audit. By adopting reporting measures and standards that reflect desired human rights outcomes and reviewing the implementation of these measures and standards through the audit process, the Correctional Service will be in a better position to evaluate whether it is meeting its human rights obligations. Human rights audits could then be the basis for developing a corrective human rights action plan with time frames and procedures to ensure follow-up and implementation.

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