Protecting Their Rights A Systemic Review of Human Rights in Correctional Services for Federally Sentenced Women Chapter 3
Ensuring Human Rights in the Provision of Correctional Services
A prison sentence deprives an inmate of her or his right to liberty, but it should not deprive an inmate of other rights. Infringements of other rights, including human rights, can be justified only if they are necessary to give effect to the sentence.
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.
Arbour, Louise. Commission of Inquiry into Certain Events at the Prison for Women in Kingston, supra note 5, at 182. |
This principle is reflected in section 4(e) of the Corrections and Conditional Release Act, which states: “offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence.”
Whether they are in an institutional or a community facility, federally sentenced offenders have a right to treatment that is consistent with the Canadian Human Rights Act. They have the right not to be discriminated against or harassed because, for example, they are Aboriginal or have cognitive limitations. Federally sentenced women and men have the right to correctional services that respond appropriately to the different factors that led to their criminality and that respect their needs and differences. Making these important goals a reality in the correctional context requires understanding what human rights are.
3.1. How Human Rights and Correctional Services Fit Together
The right to equality in Canada in federal jurisdiction is protected by the Canadian Human Rights Act, the Canadian Charter of Rights and Freedoms and international human rights instruments that Canada has signed. This legal framework protects the right that all individuals, including federally sentenced women, have to make a life for themselves without being disadvantaged by discrimination because of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.38 The Canadian Human Rights Act is the statute that governs federally regulated enterprises and prohibits them from discriminating against individuals in employment or service provision, based on the prohibited grounds. As a federally regulated service provider, the Correctional Service of Canada is subject to the Canadian Human Rights Act.
The purpose of the federal correctional system is to carry out sentences imposed by courts through the safe and humane custody and supervision of offenders, and to assist in the rehabilitation of offenders and their reintegration through the provision of programs in penitentiaries and in the community. The Correctional Service of Canada is required by federal law to provide correctional services to federally sentenced women. Its activities are governed by the Corrections and Conditional Release Act, as well as a policy framework that includes Commissioner’s Directives and Standard Operating Procedures39 . These laws and policies regulate many, if not most aspects of correctional activities. For the most part, the Correctional Service of Canada decides what correctional services are necessary.
But as a service provider, the Correctional Service also has human rights obligations to inmates. It must accommodate individual needs and differences relating to prohibited grounds of discrimination. Given the concerns raised by the Association of Elizabeth Fry Societies and others, the treatment of federally sentenced women on the basis of their sex, race and disability are the focus of this report.40
3.2. The Link Between Protecting Human Rights and Effective Corrections
The Correctional Service of Canada’s duty to protect and promote human rights is reiterated throughout the Corrections and Conditional Release Act. Several principles set out in the Act link correctional activities with human rights values, making the protection of human rights integral to effective corrections. These principles include using the least restrictive measures consistent with the protection of the public, staff members and offenders; ensuring that correctional programs and practices respect gender, ethnic, cultural and linguistic differences; and responding to the needs of women, Aboriginal peoples and offenders with special requirements.41
But the protection of society is identified as the paramount consideration in the correctional system. This raises the potential for conflict between measures that are perceived as necessary for public safety and those needed to protect the human rights of inmates. The challenge is to give effect to the principles that guide the correctional system, including human rights and public safety, while resolving the inevitable tension between those principles in the correctional context. This conflict also gives rise to an opportunity to create an organizational structure, a culture and practices that are consistent with human rights principles and that enhance safe and secure operational effectiveness.
3.3. Protecting Human Rights in the Provision of Correctional Services
Since the late 1990s there have been significant developments in human rights law in Canada that provide useful guidance for sound human rights practice. There is a growing recognition that preventing discrimination requires proactive measures that transform systems in ways that ensure the inclusion of individuals and groups. Instead of piecemeal, after-the-fact adaptations that attempt to rectify faulty systems, these systems should be conceived and built with individual needs and differences in mind.
This section sets out a framework for analyzing whether correctional services are respecting the human rights of federally sentenced women.
3.3.1. Definition of Discrimination
Discrimination can occur even though there is no intent to treat someone unfairly. The defining feature of discrimination is its effect.
Section 5 of the Canadian Human Rights Act provides a broad definition of what constitutes discrimination in the provision of services. It states as follows:
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
The prohibited grounds of discrimination are enumerated in section 3, and section 3.1 provides that a denial of services may be based on more than one prohibited ground.
3.(1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.
3.1 For greater certainty, a discriminatory practice includes a practice based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds.
Sections 5 and 3 must be interpreted and applied in light of the purpose of the Canadian Human Rights Act, which is found in section 2. It states:
The purpose of this Act is to extend the laws in Canada to give effect... to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices... .
Section 5 prohibits direct and systemic discrimination in the provision of correctional services. Direct discrimination is the term used to describe what happens when an individual or group is treated differently in an adverse way based on characteristics that are related to the prohibited grounds of discrimination including gender, race and disability. This kind of discrimination tends to be easy to identify. When a guard uses racial slurs or when a policy unjustifiably singles out offenders with disabilities, we call this direct discrimination.
Systemic discrimination, on the other hand, is the creation, perpetuation or reinforcement of persistent patterns of inequality among disadvantaged groups. It is usually the result of seemingly neutral legislation, policies, procedures, practices or organizational structures. Systemic discrimination tends to be more difficult to detect.
Correctional practices and policies that exclude individuals and groups or treat them based on stereotypes and perceptions can result in either direct or systemic discrimination. Organizations can prevent both kinds of discrimination by designing and implementing practices and policies that are inclusive of all people and their needs.
Discrimination may not result in the exclusion of all members of an identifiable group. A correctional practice or procedure may appear to be neutral, but can have adverse effects on some inmates. For example, discrimination could be a consequence of security practices intended to ensure safe custody and supervision that lead to heightened states of anxiety or trauma for offenders who are survivors of sexual abuse, a characteristic that tends to be disproportionately related to gender.
The failure to take positive steps to ensure that individuals or groups benefit equally from correctional services may also constitute discrimination.42 Such discrimination may occur if correctional practices developed for and tested on male inmates are used on female inmates without adequate testing or validation. This kind of discrimination can be avoided if correctional services for federally sentenced women are designed to supervise, rehabilitate and reintegrate women offenders.
Preventing discrimination requires addressing differences rather than treating people the same. Providing equal opportunities to all offenders to benefit from safe and secure custody, rehabilitation and reintegration requires providing correctional services that address their unique needs. Preventing discrimination by providing equal opportunities for federally sentenced women requires a proactive approach that asks not how federally sentenced women can fit into and benefit from existing correctional services, but rather “what correctional services are necessary to respond to the needs of women offenders?”
The duty to take positive measures under the Canadian Human Rights Act is not inconsistent with the fiduciary duty that is advocated by representatives of federally sentenced women. From the perspective of the Elizabeth Fry Societies and others, the Government of Canada, including the Correctional Service of Canada, owes a fiduciary duty or a duty of care to federally sentenced women, particularly Aboriginal women. Women, particularly Aboriginal women, are vulnerable not only because they lack power in the prison context, but also because of the economic, social and political realities of women’s lives. This is particularly true for Aboriginal women who, as the data in Chapter 1 reveal, are being incarcerated in increasing numbers. The disadvantage they experience is multi-layered both in the society and the correctional system. From this perspective, the fiduciary duty on the Government of Canada augments the human rights obligations of the Correctional Service to these vulnerable groups.43
3.3.2. Identifying Discrimination Against Federally Sentenced Women
Service providers, including the Correctional Service of Canada, need to know both how to recognize discrimination in the provision of correctional services once it has occurred and how to prevent it before it happens.
The first step is to look for differential treatment, including lack of access to or denial of correctional services, or the failure of correctional services to meet the needs of individuals or groups.44 A lack of access to programming for federally sentenced women that is available to federally sentenced men may indicate differential treatment. But differential treatment can also occur if federally sentenced women are unable to benefit from programming that has been designed for men, or where women’s security risks are assessed using a tool that does not reflect their unique characteristics.
Differential treatment is discriminatory if it is linked with one or more prohibited grounds of discrimination listed in the Canadian Human Rights Act, such as sex, race and disability.45 The link may not always be direct or obvious. Identifying the link may require developing an understanding of how the characteristics of individuals and groups relate to the prohibited grounds of discrimination in the correctional context. It may require, for example, understanding how women’s criminogenic factors differ from men’s criminogenic factors in order to assess whether policies and practices intended to address criminogenic factors provide federally sentenced women with equal opportunities to benefit from reintegration programming.
Understanding how a failure to benefit from correctional services, for example, may relate to prohibited grounds of discrimination may require dedicated research by the Correctional Service of Canada, including consultation with inmates, advocacy groups and other experts. This is one reason why it is important that the Service support the capacity of inmates and others to participate meaningfully in consultations. New policy tools and practices can also assist in understanding how differential treatment may relate to prohibited grounds of discrimination, such as corporate data systems that collect and report data, including budget and financial information, in ways that reflect the population and individuals intended to benefit from correctional services. These kinds of policy tools and practices can help to track access to correctional services, as well as identify gaps in correctional services.
At times it may not be possible to attribute or link the differential treatment to only one ground of discrimination. Federally sentenced Aboriginal women, for example, may experience different forms of exclusion than non-Aboriginal women and Aboriginal men. The reasons why Aboriginal women do not benefit from programming may be different than non-Aboriginal women. And the experiences of individuals who are part of an identifiable group, such as, for example, Aboriginal women, are not necessarily the same. Linking grounds of discrimination to differential treatment must be done flexibly, based on the recognition that the grounds of discrimination listed in the Canadian Human Rights Act are intended to mark interests and needs that are vulnerable to being overlooked.
Once a link between the differential treatment and one or more prohibited grounds of discrimination is made, a service provider has an obligation to act effectively, both proactively and reactively. Reacting effectively to redress discrimination requires a fair, efficient and responsive system for addressing problems, complaints and grievances. This should begin within the Correctional Service, always recognizing the importance of having external avenues of redress, including the Office of the Correctional Investigator and the Canadian Human Rights Commission and the kind of external redress set out in Recommendation 19. Proactive measures may include conducting human rights audits, considering human rights impacts in the development of new policies or the review of existing ones, and ongoing human rights education and training.
3.3.3. When Differential Treatment May Be Allowed
“(Human rights legislation) is often the final refuge of the disadvantaged and the disenfranchised.”
Supreme Court of Canada in Zurich Insurance Co. v. Ontario Human Rights Commission, infra note 46, at para. 18. |
Supreme Court of Canada in Zurich Insurance Co. v. Ontario Human Rights Commission, infra note 46, at para. 18.Human rights laws recognize that there may be limits on what a service provider such as the Correctional Service of Canada must do to promote and protect the human rights of federally sentenced offenders. But because of the importance of equality in our society, these limitations or exceptions to human rights are few and are interpreted very narrowly.46
Generally, to prove that differential or adverse treatment in correctional services is not discrimination under human rights legislation, the Correctional Service must show that there is no other way to provide the service short of “undue hardship” related to considerations of health, safety and cost.47 It is at this stage of the analysis that the public safety considerations identified as “paramount” in section 4 of the Corrections and Conditional Release Act may come into conflict with human rights values and practices. This signals the importance of searching for ways to resolve this conflict that do not minimize the human rights of inmates but that ensure the accommodation of individual needs and differences.
3.3.4. Ensuring That Differential Treatment in Correctional Services is the Exception
To ensure equality in the provision of correctional services where questions about limits on human rights arise, it is necessary to apply the three-part test that has been established by the Supreme Court of Canada.48 The test proceeds based on three questions:
1.Is the limitation on human rights for a purpose or goal that is related to the provision of correctional services?
2. Has the limitation on human rights been adopted with no intent to discriminate?
3. Is the limitation on human rights reasonably necessary to accomplish the purpose or goal, or can the need or difference be accommodated without undue hardship?
It is difficult to answer these questions unless the policy or practice has a clearly defined goal. If the goal is unclear, then it may not be possible to know whether a restriction on equality is really necessary to achieve it. For example, if the purpose of segregation is to ensure safety, then what level of risk to safety is tolerated, and whose safety is being protected? When developing new correctional policies and practices, or reviewing existing ones, it is important to be clear and precise about what the goal is.
The first question or branch of the test considers whether the goal or purpose has a legitimate or rational relationship to the activity being carried out. In the correctional context, the purpose must be related to the mandate and mission of the Correctional Service of Canada. Policies or practices that discriminate against individuals or groups and that have no rational relationship to the Service’s purpose will not be justified.
The second part of the test asks why the discriminatory policy or practice was adopted or continues to be used. An intent to discriminate will render a policy or practice that has adverse effects unlawful. But even if there was no intent to discriminate when the policy or practice was first adopted, a failure to update policies or practices in the face of changing knowledge about how policies or practices affect individuals may raise questions about why the policy or practice continues to be used.
The third part of the test asks whether the limitation, restriction or exclusion is reasonably necessary. It must be clear that the policy or practice contributes to achieving the legitimate goal, notwithstanding its adverse effects. A policy or practice that is ineffective will not be reasonably necessary. Even if the policy or practice is reasonably necessary in that it makes a positive contribution to achieving the legitimate goal, the service provider must consider whether there are any less discriminatory alternatives.
Incorporating accommodation into the standard itself ensures that each person is assessed according to her or his own personal abilities, instead of being judged against presumed group characteristics.
Supreme Court of Canada in
Grismer, supra note 48, at para. 19. |
The goal is to ensure that the policy or practice is as inclusive as possible.49 Individual accommodation to the standard must still be considered, where necessary. Filtered throughout the third part of the test is the requirement for meaningful individual assessment. Individual assessment is part of ensuring that the policy or practice is as inclusive as possible, and it is also part of the process of individual accommodation.
This three-part test identifies when existing discrimination is not justified. The test can help pinpoint where systems and practices failed to respond to legitimate needs in an unjustifiable manner, and can assist in determining how those policies and practices can be changed to avoid similar results in the future. But the test can also be used to prevent discrimination by applying it during a review of existing policies and practices or during the development of new policies and practices. To meaningfully explore alternative policies and practices that do not lead to discrimination, it is necessary to use assessment tools or processes that make visible the needs and differences of individual inmates. For example, assessment tools that help in identifying the programming needs of non-Aboriginal inmates may not be appropriate for use with Aboriginal inmates.
Examining alternatives is part of accommodating legitimate individual needs and differences. The Correctional Service of Canada has a duty to accommodate individuals and groups up to the point of “undue hardship”. Undue hardship is reached when the Correctional Service has done all that it can without unduly compromising the health or safety of staff, federally sentenced offenders or the public. Sometimes cost may be a factor justifying discrimination, but it is exceptional for cost to justify an infringement of human rights.
Given the centrality of safety concerns in the correctional system, it is important to ensure that when these concerns come into conflict with the human rights of federally sentenced offenders, they are measured and balanced in a systematic and consistent fashion. Clearly, this is a challenge in the correctional context, where safety concerns may emerge quickly and unpredictably. This points to the importance of having established policies and procedures that are based on a consistent view of the factors affecting safety in the correctional context. Determining these factors in advance will minimize the extent to which safety considerations compromise human rights protections.
3.3.5. Compound or Multiple Discrimination
Federally sentenced women experience discrimination in various ways, and in ways that are different from how federally sentenced men experience discrimination. Like people’s lives and experiences, discrimination is multi-faceted. A federally sentenced woman may experience discrimination because she is a woman, because she is disabled or because she is both. This is why it is important to think about discrimination in ways that reflect the entire context of people’s lives. A contextualized approach to discrimination is called an “intersectional analysis.” It recognizes that just as the characteristics and needs of individuals are diverse and multi-faceted, their experience of differential treatment may be as well. It requires identifying differential treatment that relates to more than one ground of prohibited discrimination, as well as preventing discrimination on the same basis.
An intersectional analysis can also help to avoid a tendency to “categorize” inmates. This can happen when it is assumed, for example, that the needs of all Aboriginal federally sentenced women inmates are the same.50 It may be true that Aboriginal women have more in common with each other than with non-Aboriginal women, but there are differences among them. This is one of the reasons why “Aboriginal programming” may meet the needs of some Aboriginal offenders but not all.
One characteristic that most federally sentenced offenders share is economic disadvantage. Although social condition (including economic status) is not a prohibited ground of discrimination under the Canadian Human Rights Act, it is important to remember that poverty, illiteracy and poor life skills can compound the vulnerability associated with the prohibited grounds of discrimination. This has implications for the effective rehabilitation and reintegration of all federally sentenced offenders. It has unique implications for federally sentenced women, whose low rates of employability relative to men, for example, suggest that employment programming for women is particularly vital to their effective reintegration.
3.3.6. Using Comparisons to Achieve Human Rights for Federally Sentenced Women
Equality has been described as a comparative concept.51 To some extent there is a tendency to want to measure equality by comparing women with men: do federally sentenced women receive correctional services that are equal to those received by federally sentenced men? This approach can be helpful in identifying gaps in correctional services in areas where the characteristics, interests and needs of federally sentenced women and men are the same or similar. But where the two populations differ, comparisons tend not to be useful because they do not promote substantive equality. Substantive equality is based on the recognition that treating people the same does not necessarily result in equality. Similar treatment may in fact produce unequal results and reinforce discriminatory patterns and outcomes. Substantive equality requires taking into account the differences between individuals and groups in order to ensure that everyone benefits from the purpose of the Canadian Human Rights Act — to have the opportunities that everyone has a right to regardless of characteristics that include their gender, race or disability.
There are other instances where it may not be helpful to use comparisons as the foundation of an equality analysis. For example, the disadvantage that can result from the compound effects of more than one ground of discrimination (e.g., gender and race, or gender, race and disability) does not lend itself readily to comparison-based approaches to equality. Who is the appropriate comparator in the case of differential treatment against a woman who is both a member of a racialized group and a person with a disability? Where there is more than one potential ground of discrimination, which ground should drive the human rights analysis?
A better practice for protecting human rights is to use comparisons where possible and meaningful, along with individual assessment, to identify real needs relating to real people. The process of individual assessment can include assessment tools that are properly responsive to the population to which they are applied, as well as interviews and consultations with knowledgeable persons, including those directly affected. This process must continue over time, and must be augmented by an ongoing assessment of the impact and effectiveness of correctional services in meeting the legitimate needs of the federally sentenced population.
3.4. Enforcing Human Rights in the Provision of Correctional Services
Currently the inmate complaint and grievance system, as well as the complaint process under the Canadian Human Rights Act, provides an opportunity to enforce human rights in the provision of correctional services one complaint at a time. Although the complaint procedure is an important human rights enforcement mechanism, it rarely leads to sweeping changes in the systems, practices and policies of an organization. Nor does it necessarily prevent discrimination from happening again in future. The inmate complaint and grievance system, in particular, rarely leads to the design of modified policies and practices that ensure inclusion and this is why proactive approaches are so important.
3.4.1 Guiding Principles for a Human Rights Analysis
Several principles emerge that are useful in ensuring that the treatment of federally sentenced women is consistent with human rights laws:
1. Federally sentenced women have a substantive right not to be discriminated against and a right to correctional services as effective as those received by men.
2. Equality is based on the real needs and identities of federally sentenced women, not on stereotypes, perceptions or generalizations. A contextual approach is necessary to understand and respond to the needs of federally sentenced women for correctional services.
3. The Correctional Service of Canada’s duty to promote and protect the human rights of federally sentenced women in the provision of correctional services is immediate, proactive and ongoing.
4. Justifications for discriminatory treatment in the delivery of correctional services are limited to arguments about safety, health and cost, and the Correctional Service of Canada must demonstrate how ensuring that the characteristics and needs of federally sentenced offenders that relate to prohibited grounds creates undue hardship under one of these three headings.
5. A proactive approach requires Correctional Service of Canada to put tools and policies in place to support the development and delivery of correctional services that are consistent with human rights. These include: adequate data collection and reporting, meaningful consultation processes, appropriate individual assessment processes, education and training, and program assessment (including gender-based budget reporting) that addresses human rights impacts. |