Time for accountability: effective oversight of women's prisons.

• Author: Parkes, Debra
• Position: Canada

Women prisoners in Canada have long endured a system designed and managed for the more than 95% of the prison population that is male (Arbour 1996: 239). Various government reports and commissions of inquiry dating back to 1938 have highlighted the ways in which women have been disadvantaged, treated unfairly, and essentially penalized for their under-representation among those convicted of crime (Arbour 1996: 240-241). Calls for change in recent reports have been prompted in large part by revelations of the shocking and tragic experiences of women prisoners, which, in turn, revealed an equally shocking lack of effective oversight and accountability. Notably, the scathing report of Justice Louise Arbour (1) (1996) into the infamous "certain events at the Prison for Women in Kingston" (the strip-searching of women prisoners by a male Institutional Emergency Response Team in full riot gear, the subsequent illegal and involuntary transfer of women to a segregated unit inside Kingston Penitentiary for men, and further illegal detention in segregation for many months) had as its central focus the lack of independent accountability and oversight that facilitated such seemingly inconceivable events going on as long as they did and (almost successfully) being covered up.

Justice Arbour found a culture of disrespect for the rule of law and "little hope that the Rule of Law will implant itself within the correctional culture without assistance and control from Parliament and the courts" (1996: 182). Among her long list of recommendations, she called for an end to the practice of long-term confinement in administrative segregation (to be facilitated by a recommendation that segregation be subject to judicial supervision) and the expanded jurisdiction of judges to reduce sentences where prisoners have been subjected to "illegalities, gross mismanagement or unfairness in the administration of a sentence" (Arbour 1996: 183). Her report implores that "efforts must be made to bring home to all participants in the correctional enterprise the need to yield to the external power of Parliament and of the courts" (181).

None of Justice Arbour's most substantive recommendations in this regard have been implemented. Ten years after the Arbour Commission, after the building of six new women's prisons to replace the since-closed Kingston facility, the need for meaningful oversight and remedies for illegality and unfair treatment has never been greater. The recent report of the Canadian Human Rights Commission (CHRC 2003) into the discrimination experienced by women prisoners underlines once again the need for effective oversight and accountability mechanisms. There is a very re al concern among women prisoners and their advocates that these most recent recommendations will join those of Arbour and others, gathering dust on a shelf, while token gestures--if any--toward accountability are made. For example, the recent one-off visits to the Grand Valley Institution and the Nova Institution by Her Majesty's Chief Inspector of Prisons for England and Wales, at the invitation of the CSC, are more an evasion than a meaningful response to the recommendations for independent oversight, including an independent Canadian inspectorate of women's prisons.

This article starts from the proposition that report after report has made the case that meaningful, independent accountability and oversight of women's prisons is urgently needed. The question is what forms, structures, or mechanisms will most effectively realize the goal of meaningful, independent oversight and accountability. Ultimately, it is our view that an effective and accessible avenue of judicial review of rights violations, other illegalities, and long-term segregation must be available to prisoners as part of a broader accountability and oversight framework. Other mechanisms such as an independent prison inspectorate and the Office of the Correctional Investigator (with a power to take complaints to a tribunal and/or direct issues to court) are necessary complements to--but not a substitute for--the effective and accessible judicial sanction and remedial scheme that must be made available.

Our analysis proceeds in three parts. First we describe the context of women's imprisonment in which the calls for meaningful accountability and oversight have arisen. Next we outline the necessary criteria for any effective oversight body within this correctional context and measure against those criteria some of the key recommendations for oversight models and mechanisms made in recent years. Finally, we conclude with a brief discussion of why and how the context of federally sentenced women presents a unique opportunity--as well as a unique challenge--for effective oversight and accountability.

A key question that begs to be asked is, Can respect for human rights and accountability take root in women's prisons? Perhaps the best way to make this happen--if, indeed, it is possible at all--is to ensure that effective remedies are available when rights are violated. We will evaluate some of the key oversight options and outline why we consider judicial oversight more likely than administrative tribunals to provide a meaningful sanction and redress for rights violations in prison. Underlying our conclusions is our view, shared by others who have studied imprisonment, especially the imprisonment of women (e.g., Sudbury 2005, Carlen 2002, Hannah-Moffat and Shaw 2000), that prison reform is susceptible to what Pat Carlen has aptly called "carceral clawback" (2002: 220) and, therefore, is ultimately ineffective. We join these other scholars of women's imprisonment in concluding that only by focusing on the dismantling of the prison structure and the decarceration of prisoners do we have any hope of accomplishing lasting change. We hope that this piece will spur readers toward careful reflection along those lines while also offering some practical steps to promote accountability and compliance with the law in Canada's existing prisons.

A brief history of federally sentenced women and the absence of accountability

The legal landscape

Women who are sentenced to terms of imprisonment of two years or more serve their sentences in federal prisons by virtue of s. 743.1 of the Criminal Code. In relatively rare situations, a woman who receives a sentence of less than two years may be transferred from a provincial jail to a federal prison pursuant to s. 16 of the Corrections and Conditional Release Act (CCRA). The CCRA and the regulations under it form the federal law that governs the nature of imprisonment and the release of federally sentenced prisoners. Both the common law and subsection 4(e) of the CCRA provide that prisoners retain all the rights and privileges enjoyed by all members of society except for those which are necessarily removed by the consequences of the sentence of imprisonment (e.g., Solosky v. The Queen). The CCRA and regulations both include restrictions on the rights and privileges of prisoners and provide entitlements and procedural protections.

A great number of procedures and practices implemented by the Correctional Service of Canada (CSC) are not spelled out in either the CCRA or the associated regulations but are authorized by policy promulgated by the Commissioner of Corrections, pursuant to s. 97 of the CCRA. Too often, the power of the commissioner to make policy and the implementation of that policy are understood as the freedom to take any measures not specifically prohibited by the CCRA and regulations.

However, the legality of policy and the manner in which policy is implemented are not assessed only against the requirements of the CCRA and regulations. As is the case with all governmental actions, decisions and actions taken by the CSC must comply with the Canadian Charter of Rights and Freedoms, which consists of rights held by all members of society, including prisoners. Decisions that result in discriminatory treatment based on specified grounds (e.g., race, sex, or disability) are also subject to the Canadian Human Rights Act.

The problem faced by prisoners as targets of government action is that the CSC interprets and applies the CCRA from a perspective that allows it to control and restrict prisoners to the greatest extent possible. It does not adopt an interpretation focused on the legislative and constitutional entitlements of prisoners and how to restrict them only to the extent that is actually necessary. For the CSC, the entitlements of prisoners, whether legislative or constitutional, can be ignored or restricted when a security concern is implicated, no matter how important or fundamental the right and how tangential or speculative the security concern. From this perspective, actions are not recognized as discriminatory or otherwise illegal where the purpose of the action is security.

Canada has adopted, ratified, or otherwise agreed to be bound by many international instruments. Research conducted by a previous chief commissioner of the CHRC, Max Yalden, on behalf of the CSC chronicles the extent to which the CSC's current legislative framework is incapable of ensuring its legal compliance with its domestic and international obligations in institutional and community corrections (Yalden 1997).

The unique circumstances of women prisoners

Notwithstanding their relatively low risk to the community in comparison with men, federally sentenced women as a group are, and have historically been, subject to more disadvantageous treatment and more restrictive conditions of confinement than men. Justice Arbour aptly summarizes the situation in the following terms:

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 ... From the beginning, the welfare of women prisoners was secondary to that of the larger male population. (Arbour 1996...