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Protecting Their Rights A Systemic Review of Human Rights in Correctional Services for Federally Sentenced Women Chapter 8
Protecting Human Rights Requires Effective External Redress
Effective redress for inmates is a critical issue that has implications for human rights compliance. Human rights mean little if they are not respected. It is in the interests of everyone concerned — the Correctional Service, staff, inmates and society — if safeguarding human rights is strengthened by adding an independent oversight function. A specialized oversight function can provide an unbiased and informed view of human rights compliance within the correctional context.
The Commission is not alone in this view. The 2002–2003 Annual Report of the Office of the Correctional Investigator has put the question of effective external redress for inmates squarely on the table.169 Most of the submissions received by the Commission backed the idea of an independent body with enforcement powers. Several previous reports have also endorsed the need for effective external monitoring, and have recommended various types of bodies and powers for this purpose.170
Most recently, the Standing Committee on Public Accounts recommended that the Correctional Service establish an external body to monitor the grievance system in place for federally sentenced women.171
External monitoring bodies are common in other countries. The Chief Inspector of Prisons for England and Wales conducts approximately 20 full inspections each year and is concerned with issues of broad impact, rather than individual complaints. This stands in contrast to the primary function of the Office of the Correctional Investigator which is to investigate and resolve individual offender complaints. Although the Office of the Correctional Investigator also has responsibility for reviewing and making recommendations on the Correctional Service’s policies and procedures relating to individual complaints, the systemic impact of this function is limited by the lack of enforcement powers. In England and Wales, there is also a Prison Ombudsman who is charged with receiving complaints on all matters relating to prison and probation, with the exception of parole decisions.
There is a wide range of options for an external monitoring and enforcement agency. One option is to establish an administrative tribunal with the power to compel the Correctional Service to comply with legislation and policy governing the administration of sentences, and to redress the negative effects of non-compliance. The remedial powers of such a tribunal would also include the jurisdiction to order the Correctional Service of Canada to pay compensation to any offender subjected to illegal or unfair treatment. With the jurisdiction to accept direct references from prisoners or their advocates in cases that raise issues of general importance to prisoners, the tribunal could effect more widespread and systemic change than currently exists. It could be part of an existing structure, such as the Canadian Human Rights Tribunal.
In 1996, Justice Arbour recommended the creation of sanctions for correctional interference with the integrity of a sentence.172 In her view, interference could include illegalities, gross mismanagement or unfairness in the administration of a sentence. In its submission, Rethinking the Treatment of Federally Sentenced Women in a Substantive Equality Context, the Women’s Legal Education and Action Fund argued 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.”173 This is an avenue of redress that could be dealt with by an external enforcement body.
The Canadian Association of Elizabeth Fry Societies has argued for a source of funding for prisoners seeking to challenge unfair treatment. Currently many prisoners do not have access to legal representation. In his book, Justice Behind The Walls: Human Rights in Canadian Prisons, Michael Jackson laments how little legal aid is available to inmates.174 It is clear that funding for prisoners to take steps to protect their rights is, in some circumstances, necessary in order for those rights to become a reality. The Court Challenges Program offers one model of funding that could be expanded or developed by the Government of Canada for prisoners. It would be good if the Correctional Investigator had power because as it now stands it is just venting to talk to the Correctional Investigator.
A woman inmate |
Other options for external redress include strengthening the powers of the Office of the Correctional Investigator. Created in 1973, the Office has a mandate “to conduct investigations into problems of offenders related to decisions, recommendations, acts or omissions of the Correctional Service.”175 The effectiveness of the Office would be enhanced if it were given the power to enforce its recommendations. As only one example of many, the Office has repeatedly requested a public response from the Correctional Service to the recommendations of Justice Arbour’s report. Other groups, including the Canadian Association of Elizabeth Fry Societies, have made the same request. We look forward to reviewing the discussion paper to be produced by the Office of the Correctional Investigator concerning options for judicial interventions, external review and accountability.176 Its proposal to partner with the Correctional Service to co-facilitate a conference in early 2004 to identify measures to address these issues is sound and constructive. This should provide the opportunity to move relatively quickly to identify and define the features of an effective external redress body. Recommendation No. 19 It is recommended that the Solicitor General of Canada and the Correctional Service of Canada, in consultation with stakeholders, establish an independent external redress body for federally sentenced offenders. |
Conclusions
Our review of the treatment of federally sentenced women in the provision of correctional services by the Correctional Service of Canada indicates that, while some progress has been made, systemic problems continue to affect the correctional system and the treatment of federally sentenced women. In the past ten years, some progress has been made towards achieving a system of correctional services that is responsive to the needs of all offenders, including women; however, further work needs to be done by the Government of Canada, including the Correctional Service.
Our analysis has been based on the human rights principle that recognizing differences between individual offenders and groups of offenders is not enough to protect human rights or achieve equality in the correctional system. Differences between individuals and groups that relate to prohibited grounds of discrimination must lead to changes in how systems are designed, how policies are developed, and how practices are implemented. More than “special measures” are required to transform ways of rehabilitating and reintegrating offenders so that all offenders have an equal opportunity to benefit from the rehabilitative purpose of the correctional system. The public interest in doing so relates not only to treating individual offenders fairly, but also to enhancing public safety through the safe and timely reintegration of offenders as law-abiding members of society.
The process of transformation must begin with security classification, which is the foundation of the correctional system. The generally lower risk profile of most federally sentenced women has been acknowledged for many years, but it has not yet been fully reflected in correctional services relating to their custody and supervision. As we have noted, processes and tools used to assess risk must be appropriate for the population they are intended to serve. Only responsive and properly validated risk assessment tools can guide decisions about where and how individual federally sentenced women are incarcerated, how they are supervised and what correctional services, including family visits and work releases, are available to them. Women’s most common pathways to crime involve survival efforts that result from abuse, poverty, and substance abuse. Research suggests that all of these factors are interconnected.
Gender Responsive Strategies, supra note 3, at 8. |
As well, the policy platform upon which correctional services are based must recognize that some of the criminogenic factors of federally sentenced women are different from those of men. Reintegration program strategies for women, the content of programming and the development of individual correctional or reintegration plans for women offenders must address their unique criminogenic factors. Although the Correctional Service acknowledges that federally sentenced women as a group demonstrate high reintegration potential, the correctional services it offers do not fully support realizing this potential. In order to achieve this important goal, correctional services for women must not only be different, they must be responsive to the underlying differences between women and men. Ensuring that correctional services are gender-responsive also requires recognizing that not all federally sentenced women are the same. Federally sentenced Aboriginal women and federally sentenced women with disabilities have unique characteristics that may have implications for how they are incarcerated and assisted with reintegration. The situation of federally sentenced Aboriginal women, including the fact of their over-representation in our prisons and at maximum security levels, is a pressing issue requiring immediate action. Changes to the security classification system must ensure that Aboriginal women are treated fairly and incarcerated in the least restrictive environment possible and, where desired, in Aboriginal communities under section 81 of the Corrections and Conditional Release Act. Programming strategies and programs must also be developed to meet their reintegration needs.
The issue of the impact of the current security classification tool on federally sentenced women requires further investigation by the Correctional Service of Canada, particularly its impact on women with disabilities. Similarly, more research is required to identify unique criminogenic factors relating to disability, if any, and programming must be developed to address these needs. More attention must be given to the unique needs of federally sentenced women with disabilities on conditional release, including housing and employment that will enhance their reintegration potential.
The process of transforming the correctional system should not take place in a vacuum. The antecedents of discrimination, inequality and crime, and the interplay between them are multi-faceted and interconnected. The scope and timing of this review did not permit a global examination of other factors possibly relevant to discrimination against federally sentenced women such as police charging practices and sentencing practices. Further study by the Correctional Service of Canada, the Solicitor General of Canada and others is needed to unravel the relationships between these factors and the disadvantage faced by federally sentenced offenders. We hope, however, that this report will offer a place to begin to change the correctional system from within in order to enhance its compliance with human rights.
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