Chapter 13 To Be Treated as Human Federally Sentenced Women and the Struggle for Human Rights

Kim Pate

Based on an extract from the author’s submission to the Liberal Senate Forum on Women in Prison, 18 April 2018, Ottawa.

I want to begin by acknowledging that we are uninvited guests on the unceded, unsurrendered territory of the Algonquin Anishnabeg and I thank all of the ancestors and the future generations who take care of the land. I also want to thank, particularly, all of the individuals who inform all about which I’m about to speak. It’s the women inside—and before my work with the Canadian Association of Elizabeth Fry Societies (CAEFS), the men and young people inside—who have shaped my thinking and therefore these remarks. Many of them called me or sent me messages when I out a message that this Forum was happening and asked what they thought needed to be said. So I want to thank them because it is those women and their experiences that inform what I now have the privilege and responsibility of articulating. I also want to thank the Senate for these open caucuses because it was an open caucus like this one that led to the human rights review of the current situation in prisons across the country by the Senate Human Rights Committee.

Open caucuses like this and the discourse that arises from them are important. Many of the factual pieces about prison are often difficult to access, such as who, in fact, is in prison. As well, as Howard Sapers noted, many policy decisions made by governments have led to an increasing use of, reliance on, and normalization of crime and punishment in this country in a way that mirrors and follows a lot of what has happened in the United States (Sapers 2019). It means we are doing things that have put us on a trajectory that is not impossible to exit, but which necessitates examination of the intersecting areas and issues.

When we talk about what contributes to increased criminalization of some of the most marginalized, we need to talk about how economic realities feed this issue. We know that the last time this issue was explored in Canada by Statistics Canada (2016), in the mid 1990s, more than 80% of the people in custody were in prison as a result of behaviour related to their attempts to navigate life circumstances related to past trauma and economic impoverishment. This is particularly true for women. Data from 2008 reveals that 39% of women prisoners were convicted of failure to pay a fine, and 80% of women in federal prisons were unemployed at the time of incarceration, as compared with less than 10% of women in the general population. In Alberta alone, 74% of incarcerated women indicated they were unable to financially meet their basic needs at the time of their arrest. Indigenous women represent a whopping 44% of women in federal prisons throughout Canada and as many as 75 to 90% of those in provincial custody in Prairie provinces.

The fact is that if you are a poor, racialized—especially Indigenous—woman, dealing with past trauma, the likelihood of you being criminalized and imprisoned increases exponentially. The 2009 report, In from the Margins (Eggleton and Segal), by the Standing Senate Committee on Social Affairs, Science, and Technology showed how experiences of homelessness, lack of educational opportunities, disabling mental health issues, and living in marginalized neighbourhoods are associated with increased risk of criminalization. Indigenous, Black, and other racialized individuals disproportionately experience these determinants.

Canadians who are racialized, for example, have a greater likelihood of living in poverty than non-racialized Canadians. According to 2016 census data, one in five racialized families are living in poverty, as opposed to one in twenty non-racialized families. A 2016 study by the Canadian Centre for Policy Alternatives found that Indigenous children are more than twice as likely to live in poverty than non-Indigenous children, and Indigenous Peoples make up 32% of those in custody—and a horrific 50% of federally sentenced women alone, yet are fewer than 5% of the total population. Such Canadian statistics show a devastating pipeline—from poverty, racism, low education, wage gaps, and more—to crime and incarceration (Zinger 2022, 96).

We must also discuss the impact of experiences of violence against women and children. The reality is, we know that those who experience physical and sexual abuse are unlikely to receive support and instead are essentially encouraged to anesthetize themselves to that violence rather than to have those issues addressed. This can lead to issues of addiction, particularly with drugs and illegal substances, but also to prescription drugs and other “legal” substances that can cause people to be in situations where they are trying to navigate an increasingly inhospitable world. Instead of criminalizing people in such cases, we should be looking at approaches like guaranteed livable income, supports in Indigenous communities, self-governance, and nation-to-nation relationships. We should not be just encouraging First Nations—when we talk about self-governance—to import and Indigenize mainstream models. For instance, in some First Nations, discussions are focusing on decolonizing justice committees, court work, or community integration. In this decolonizing approach, community-based and culturally appropriate approaches are being developed by First Nations, rather than having Indigenous replications of current criminal legal models.

We need to educate Canadians about our history and relationships with Indigenous Peoples. We also, however, need to be clear about how we educate, approach, and describe certain issues. For example, think about the messages it sends when we talk about crime prevention instead of healthy communities—by which I mean access to clean water, food security, adequate housing, educational, economic, and health, as well as social supports—or when we talk about funding “crime prevention initiatives” that really should be fundamental human rights and protected and promoted by section 15 of the Canadian Charter of Rights and Freedoms. When we have programs that are about feeding children in schools and we call it crime prevention, and when we have programs that are about supporting pregnant teens and we call them crime prevention, we are sending a message that we need to prevent the next “crop of criminals.” Those are the messages we send when we develop policy and fund initiatives in this way rather than in a manner that centres substantive equality.

The fact that women are the fastest growing prison population—particularly Indigenous women and women with disabling mental health issues—is symptomatic of the fact that we are settling for harm reduction models instead of demanding the substantive equality models promised by the Canadian Charter of Rights and Freedoms and which the Charter and our human rights acts presume. I was struck by this reality many years ago when I was visited by somebody from Europe. They were shocked by how criminal activities and crime dominated our media and the norms they produce. For example, think about how children learn about consequences; they are often told that, “If you’re ‘bad,’ you’ll go to jail.” So what does that mean? It means when you talk about law reform that adds to the system, and when you expand police, court and correctional responses, you inadvertently feed the system. Special circumstances courts and new programs in prisons have not prevented the marginalization, victimization, criminalization or institutionalization of women and girls. In fact, the unintended consequences seem to be that the various system actors seem to feel better about relegating more—especially of the exponentially most marginalized and discriminated against—to the system, not fewer.

Programs need to be delivered and developed by and in communities, not in the correctional system. We should be asking why the government has not fully and expansively implemented the parts of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA), which would more likely result in non-carceral options. Sections 29, 81 and 84 of the CCRA allow for the decarceration of women, Indigenous Peoples, and those with mental health issues. As Hansard records of the late 1980s through to 1992 debates reveal, Parliamentarians considered the CCRA as a piece of human rights legislation that was aimed at reducing the number of people in prison, particularly Indigenous Peoples. Political and correctional policy decisions have since led to a failure to fully implement those provisions. The policies that Correction Services Canada have put in place can and must be changed.

Following the report of the Canadian Human Rights Commission (CHRC) entitled Protecting Their Rights: A Systemic Review of Human Rights in Correctional Services for Federally Sentenced Women (2003), Correctional Service Canada (CSC) hired Moira Law to review the classification system used to assign security levels to incarcerated women and to make recommendations that would respond to the CHRC finding that the manner in which women are assessed and treated in the federal prison system is discriminatory. She recommended, as did the Task Force on Federally Sentenced Women (Correctional Service Canada 1990), that because most women do not pose a risk to public safety, CSC should start all women at a minimum-security level. Both also recognized that when women do pose a risk to anyone, it is often to themselves. These recommendations were not, however, implemented.

Too often, CSC develops systems to address the issues with which they deal in response to concerns pertaining to male inmates. They essentially “add women and stir” as women have historically been considered “too few to count” and other clichés that have been used to describe this practice. We have the opportunity to do things very differently. One of the challenges in terms of doing this work—when you talk about women—is the overarching shadow of what happens in men’s prisons and what happens with men.

A high-water mark when it comes to prisoners’ rights was Louise Arbour’s report following the Commission of Inquiry into Certain Events at the Prison for Women in Kingston (1996). One of the things Arbour recommended was that corrections should promote women’s corrections as the flagship to try every new progressive pilot—from decarcerating Indigenous women, in particular using sections 81 and 84, and section 29 for those with mental health challenges, to using new measures of bringing community into prisons with a view to getting women out. At that time, when we had no limit on the use of segregation,1 one of the things she did was recommend some limits on the use of segregation. In the twenty-five years since then, despite the introduction of Bill C-83 and the supposed replacement of segregation with “structured intervention units,” as the work of Tony Doob and Jane Sprott (Doob and Sprott 2020; Sprott, Doob, and Iftene 2021) has revealed, CSC has failed to develop the requisite limits or judicial oversight she recommended.2

Many people do not realize that if a woman in a prison is classified as maximum-security, she is in a separate living unit and therefore in a state of segregation. In prison, segregation is both a status and a place: the status of being separated from the general prison population and the place called segregation. Maximum-security units are separate units within federal penitentiaries for women; they are in effect separate, fortified prison units within the prisons. Federally sentenced women classified as maximum-security do not have access to the gymnasium, programs, visits, etc. except when escorted by officers, and can be strip-searched each time they go in and out of the living units. Women are effectively treated as though they are actually being transferred from one prison to another. Until the amalgamation of prisons for men during the Conservative government’s deficit reduction action plan (DRAP), this was different for men. Men classified as maximum-security were usually “housed” in maximum-security institutions, which had all of those services available.3

Why should we be looking at fundamentally different approaches for women? Most people, including correctional staff, disagree with official positions taken by ministers. Most people working within the bureaucracy of prisons agree that women are not the people who usually cause the greatest challenges to public safety. If they are considered challenging, it tends to be emotional rather than physically disruptive behaviour that challenges corrections. This was the situation for Ashley Smith, as well as for Terry Baker—two women who died approximately eight years apart under similar circumstances in the segregation unit at the Grand Valley prison for women in Kitchener. Kinew James was also in the same segregation unit but died in the Regional Psychiatric Centre in Saskatoon; she had a heart attack and died after being denied medical attention. Women develop mental health issues and their mental health conditions and symptoms are exacerbated because of the treatment they receive and the conditions of confinement to which they are subjected.

Women also tend to be held in more restrictive conditions. We could prevent and alleviate those conditions, preferably by release and community integration. Many people also do not know that section 81 of the CCRA can be used to release people who are classified even as maximum-security or who are serving life sentences, if an agreement is negotiated between the Minister of Public Safety and a community. The section was originally enacted as part of a strategy to reduce the number of Indigenous Peoples who are imprisoned. In addition, a subsection of that provision of the legislation says it can apply to non-Indigenous people who are imprisoned as well. In actuality, the provision could be applied to enable all kinds of populations to serve their sentences in the community. Unfortunately, CSC policy has inappropriately limited its application.

During the study by the Standing Senate Committee on Human Rights of the human rights of those who are imprisoned, a common question has been “Who should we be emulating?” followed closely by the corollary, “What are international best practices or who’s doing it right?” In my opinion, Canada has the opportunity to be the leader in this area. Canada could be the one to say, “We will do it right.”

But let me give you some examples of where things are or have been done differently—One of the first things Nelson Mandela did when he became the president of South Africa was to release women in prison who were mothers of children under the age of 12 years. Based on his own experience in prison, as well as that of his second wife, Winnie Madikizela-Mandela, he understood that to jail and separate a mother from her children was to relegate generations to a similar subjugation.

As was previously mentioned, CAEFS recommends the elimination of the use of segregation for women and offered to do a pilot to get every woman out of segregation. At the request of women inside, CAEFS, in conjunction with law students, also developed human rights education training and handbooks for people inside. Based on a model developed by CAEFS with the women at the now closed Prison for Women (P4W) in Kingston, human rights advocacy teams visit each federal prison for women on a monthly basis. They walk through the entire institution to monitor the conditions of confinement and allow every federally sentenced woman to have the opportunity to speak with them in confidence. Even the Correctional Investigator does not go into segregation in the prisons for women as often as the Elizabeth Fry advocacy teams do. What remains unique about the program is that since their inception, the advocacy teams in the prisons include Elizabeth Fry women, sometimes lawyers, usually formerly imprisoned people, as well as people inside whose institutional employment while serving their sentences includes peer and systemic advocacy and collaborative work as part of CAEFS’s Regional Advocates teams.

Renée Acoby, for example, who was a member of the CAEFS’s Pacific Regional Advocacy team. One of the challenges highlighted by how she has been treated is the incredible misogynist and racist double standards when it comes to the classification and treatment of women. Renée was labelled a “dangerous offender” based on what she did in prison, not based upon her actions in the community—either prior to her incarceration nor since her conditional release. Her mother was murdered by her father when she was six months old. She ended up in the care of family first, then the state. The impacts of intergenerational residential school and child welfare trauma run deep and wide. Renée entered the prison system on a short sentence (three-and-a-half years for drug trafficking, which is parenthetically one of the few employment opportunities for many of the most marginalized in our country).

When she entered the prison, Indigenous women in the Prairie region were held in a segregated unit in the Saskatchewan Penitentiary for men. Nevertheless, contrary to CSC policy, they had contact with the men, who encouraged them to take hostages in order to try and get the attention of senior correctional authorities with a view to accessing services and programs. Renée was involved in a number of those hostage takings, some of them staged, some of them not, and started to accumulate charges and sentences. As a result of multiple prison-generated charges, she accumulated some 21+ years of cumulative sentences. She was then labelled a dangerous offender (to use the official terminology) and was subjected to an indeterminate sentence. Not surprisingly, Renée trusted nobody in corrections. When she was finally provided with access to a non-CSC therapist who is both a psychologist and psychiatrist (someone who did not report confidential information to corrections) she started to work on getting out. She has now been out for years on parole and continues to be a trusted support and advocate with and for others. Unfortunately, some within CSC persist in characterizing her as an ongoing danger, threat, and risk. Her lawyer and supports have had to repeatedly dismantle two, three, four, five, six, ten, 20-year-old information to try and reconstruct Renée as the leader she is, an Indigenous woman who has and will continue to lead. The biggest impediment to her actually moving forward was—and remains—the potential for re-imprisonment.

One of the many challenges with getting lawyers involved in prison law cases is that, unless they go into the prisons and see what happens, it is very difficult for them to truly understand and challenge conditions of confinement. That is part of the reason why we encourage all Parliamentarians and judges to exercise their rights to enter prisons pursuant to section 72 of the CCRA.

Part of the reason that the lawyers who brought the segregation cases to a court challenge failed to argue for an end to the use of isolation is that they actually did not believe it was possible; they did not understand completely how prisons work, nor did they adequately and critically engage with the people inside.

There are many positive ways that we can move forward. We need to ensure that there are effective judicial oversight of corrections and remedial mechanisms for prisoners if we truly wish to have any hope of seeing the Charter and human rights of people in prison respected and upheld.