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Women Offender Programs and Issues

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The Cross Gender Monitoring Project
3rd and Final Annual Report

i) International Law

Canada has ratified or subscribed to a large number and variety of international instruments dealing with the protection of human rights generally and the treatment of prisoners specifically. While the vast majority of these instruments are not technically binding on the Government of Canada, they do provide guidance as to what is internationally recognized as good practice. Even more importantly, they reflect the values and principles that should inform the interpretation and application of Canadian law as fully as possible.

In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada commented upon the application of the International Convention on the Rights of the Child which has been ratified by Canada but not implemented by Parliament. Even though the Convention has no direct application in Canada, the majority of the Court adopted a contextual approach to statutory interpretation that was informed by the values and principles of the Convention.10 In so doing the Court adopted the following statement by Ruth Sullivan in Dreidger on the Construction of Statutes (3rd ed. 1994) at p. 330:

The legislature is presumed to reflect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred. (Emphasis added by Court) at p. 861.

In 1975 Canada subscribed to the United Nations' Standard Minimum Rules for the Treatment of Prisoners (1957) (SMRTP). At that time, Canada explicitly committed itself to compliance with and implementation of the SMRTP. The Rules set out in the Standard are intended "to set out what is generally accepted as being good principles and practice in the treatment of prisoners and the management of institutions" (preamble). While not mandatory, these rules are explicitly described as minimum. The Government is in no way restricted from going beyond the standard set out in these Rules, but employing a standard below the minimum provided by the Rules would seem a questionable practice and would demand careful and thorough justification. As set out by the Supreme Court of Canada in Baker, the SMRTP reflect the values and principles that should guide and inform the treatment of prisoners in Canada.

Rule 53 of the SMRTP deals directly with the question of cross gender staffing in relation to women prisoners as follows:

53. (2) No male member of the staff shall enter the part of the institution set aside for women unless accompanied by a woman officer.

(3) Women prisoners shall be attended and supervised only by women officers. This does not, however, preclude male members of the staff particularly doctors and teachers, from carrying out their professional duties in institutions or parts of institutions set aside for women.

The rule is clear and unequivocal and provides specific direction on what is considered the best practice in dealing with women prisoners. In applying the approach adopted by the majority of the Supreme Court of Canada, Rule 53 of the SMRTP should guide the interpretation and application of Canadian legislation, including the Canadian Human Rights Act and The Corrections and Conditional Release Act, as they relate to the treatment of women prisoners. Although some stakeholders put their position on Rule 53 somewhat more forcefully, this understanding of the role and effect of Rule 53 accords with the positions put forward by NAWL, CAEFS, the Correctional Investigator Canada and the Canadian Human Rights Commission in their response to the Co-Monitors' question on this issue.

10 Justices Cory and Iacobucci concurred in the judgment but disagreed with the majority on this point.