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Women Offender Programs and Issues

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The Cross Gender Monitoring Project
3rd and Final Annual Report

iv) Employer Liability

In developing its policy on the question of the cross gender staffing of Federally Sentenced Women, the government needs to consider its potential liability with respect to the physical or sexual abuse11 of women inmates by staff. The case law indicates that Correctional Services Canada as the employer would, in most circumstances, be held liable for any physical or sexual abuse inflicted by a staff member on an inmate. They would certainly be held directly liable in circumstances in which they were negligent in their hiring or supervision of employees, but they would likely be held to the higher standard of vicarious liability for most prison staff given the specific nature of the employment and the vulnerability of the inmates.

An employer who is negligent in hiring or dealing with an employee who commits a tort in the context of his/her employment will be held directly liable for their negligence. For example if CSC did no screening and hired as a man who has a history of sexual abuse of women who then sexually abused an inmate, CSC would presumably be directly liable in negligence. In defending against an action for negligence, CSC would want to be able to argue that they took every reasonable precaution to prevent such an occurrence - rigorous screening and training of all staff, ongoing monitoring of all staff, restricting access to female inmates by male staff, hiring only screened and trained female guards. There may be an argument that, given the statistics, the risks, past experiences etc, hiring male staff, for example, male psychiatrists or male spiritual/religious advisors, is per se negligent. The more independent access the guards had to women inmates and the more vulnerable the circumstances of such access, the stronger the negligence argument would be. However, the jurisprudence indicates that CSC would be likely be held to a higher standard than negligence.

The circumstances under which guards and other staff perform their duties in relation to inmates are such that it would seem probable that CSC would be held vicariously liable for any physical or sexual abuse inflicted by a guard or other staff on an inmate. Under vicarious liability, also known as strict or no fault liability, liability is imposed on the employer for the acts of his/her employee in the absence of any fault on the part of the employer. Thus, even though an employer appropriately screens, trains and supervises employees, that employer may be held liable for torts (such as physical or sexual abuse) committed by their employee.

The Supreme Court of Canada has recently released two decisions relating to employer liability for sexual abuse of children by an employee. In Bazley v Curry, [1999] 2 S.C.R. 534, the Court unanimously held the Children's Foundation, a non-profit organization which operated residential care facilities for the treatment of emotionally troubled children, vicariously liable for the sexual abuse inflicted by an employee on a child in their care. In R. v. G.T., [1999] 2 S.C.R., the Court in a 4 to 3 decision, did not find the Boys' and Girls' Club of Vernon, a non-profit recreational organization, vicariously liable for the sexual abuse inflicted by an employee on two children in the club's program.

The Court in Curry set out two policy rationales for the imposition of vicarious liability:

  • to provide a just and practical remedy to people who suffer as a consequence of wrongs perpetrated by an employee -- to provide fair and effective compensation; and,
  • to deter future harm.

Vicarious liability is intended to encourage employers to manage the risk inherent in their enterprise so as to minimize the harm and the costs of the harm that may flow from that enterprise.

According to the test set out by the Court for the imposition of vicarious liability, there must be shown to be a connection between the employment enterprise and the wrong done by the employee. The Court listed a number of factors to be considered in determining the sufficiency of the connection:

  • the opportunity that the enterprise afforded the employee to abuse his or her power ability to be alone with the victim, supervision of intimate activities;
  • the extent to which the wrongful act may have furthered the employer's aims (and hence be more likely to have been committed by the employee);12
  • the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer's enterprise -- "to require or permit an employee to touch the client in intimate body zones may enhance the risk of sexual touching" ( p. 562);
  • the extent of power conferred on the employee in relation to the victim -- "the more the enterprise requires the exercise of power or authority for its successful operation, the more materially likely it is that an abuse of that power relationship can be fairly ascribed to the employer" (p.562); and,
  • the vulnerability of potential victims to wrongful exercise of the employee's power (p.560)

The Court summarized the requirements as follows:

[T]he test for vicarious liability for an employee's sexual abuse of a client should focus on whether the employer's enterprise and empowerment of the employee materially increased the risk of sexual assault and hence the harm. The test must not be applied mechanically, but with a sensitive view to the policy considerations that justify the imposition of vicarious liability - fair and efficient compensation for wrong and deterrence. This requires trial judges to investigate the employee's specific duties and determine whether they gave rise to special opportunities for wrong doing. Because of the peculiar exercises of power and trust that pervade cases such as child abuse, special attention should be paid to the existence of a power or dependency relationship, which on its own often creates a considerable risk of wrongdoing (p.563).

The Court rejected the argument that non-profit institutions should be exempt from vicarious liability because they perform needed services on behalf of the general public. Presumably government would be no more successful in making a claim for exemption.

Applying the factors to the fact situation before it, the Court found the Children's Foundation liable for the sexual abuse committed by its employee in the situation where employees were expected to do everything a parent would do from general supervision to intimate duties like bathing and tucking in at bedtime.

The opportunity for intimate private control and the parental relationship and power required by the terms of employment created the special environment that nurtured and brought to fruition Curry's sexual abuse. The employer's enterprise created and fostered the risk that led to the ultimate harm. The abuse was not a mere accident of time and place, but the product of the special relationship of intimacy and respect the employer fostered, as well as the special opportunities for exploitation of that relationship it furnished (p.567-8)

Curry was a unanimous decision. GT, on the other hand was split, with the majority not holding the Vernon club vicariously liable. The club offered group recreational activities in which the majority found that the opportunity for abuse was slight. The sexual abuse was possible only because the perpetrator managed "to subvert the public nature of the activities". All but one of the incidents of abuse took place away from the Club and outside working hours. The majority found that the ultimate misconduct was too remote from the employer's enterprise to justify imposing vicarious liability.

Sexual or other physical abuse in a prison setting would be a much stronger case than that in G.T. and more akin to the residential "care" situation in Curry. While emotionally troubled children are arguably more vulnerable than women inmates, prisoners must nonetheless be considered extremely vulnerable. The power conferred on prison guards and other prison staff is huge. There are myriad opportunities for guards to abuse their power in terms of being alone with inmates and in terms of the supervision of intimate activities. Friction, confrontation and intimacy are all inherent in the prison enterprise. Job-created power and job-created intimacy are both overwhelmingly present in most staff/inmate situations. Sexual or other physical abuse of an inmate by a prison guard or by many other types of staff13 would rank very high on all the relevant factors outlined in Curry. ` It is likely that CSC would be found vicariously liable for any such acts.

Employment policies and practices could only constitute a possible defence in relation to direct, not vicarious, liability and are therefore unlikely to provide CSC with a defence when abuse by a guard has occurred. Screening, training, supervision, restriction of duties of male guards and/or hiring only female guards would relate to prevention, and thereby avoidance of claims for liability, in keeping with the deterrence rationale for vicarious liability.

Protection from liability provided by a policy of only having female PWs for female inmates would not be absolute. Vicarious liability would apply with respect to abuse by a female guard the same as it would with respect to abuse by a male guard. The protection would be found in the significant reduction in the risk of physical or sexual abuse by guards. This would be consistent with the deterrent, preventive effect intended by the imposition of vicarious liability.

11 The term abuse is intended to include any sexual activity between a guard and an inmate, sexual exploitation, sexual harassment, inappropriate touching, abusive neglect and physical abuse. It does not include authorized actions or discipline appropriately carried out pursuant to valid government policies or directives.

12 The dissent in G.T. found that this factor is not really significant in situations involving intentional torts such as sexual abuse because it can be assumed that intentional torts do not generally further employers' ends.

13 The situation would not necessarily be the same with respect to sexual or other physical abuse of an inmate by another employee. The factors of opportunity, power, vulnerability and intimacy would be quite different with respect to a prison maintenance worker for example. In this context, the employer might only be held liable under a direct fault based cause of action as discussed above.