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Women Offender Programs and Issues

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The Cross Gender Monitoring Project
3rd and Final Annual Report

ii) The Canadian Charter of Rights and Freedoms

The federal government is subject to the Canadian Charter of Rights and Freedoms with respect to all of its actions. This would include the government's treatment of anyone incarcerated in a federal prison or under federal jurisdiction, as well as all employees or staff working in those facilities or with the inmates. All legislation is subject to the Charter as well.

Section 15 of the Charter, the equality rights section, is the most pertinent for the purposes of this report as the issue of cross gender staffing of women inmates directly raises equality issues for both staff and inmates. According to s.15(1):

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In Conway v. The Queen (1993), 105 D.L.R. (4th) 210 (S.C.C.), the Supreme Court of Canada addressed the matter of cross gender staffing in relation to the question of the constitutionality of frisk searching and the patrolling of cell ranges by female guards in male penitentiaries. The Court held that it was doubtful that these practices constituted discriminatory treatment of male prisoners as compared to female prisoners who are not similarly subject to cross gender frisk searches and surveillance. Even if these practices did amount to discrimination, the Court held that they were saved by s.1 of the Charter. The Court addressed the issue of the differential treatment of women inmates explicitly recognizing that differential treatment in this context might actually be required in the interests of furthering equality:

The jurisprudence of this court is clear: equality does not necessarily connote identical treatment and, in fact, different treatment may be called for in certain cases to promote equality. Given the historical, biological and sociological differences between men and women, equality does not demand that practices which are forbidden where male officers guard female inmates must also be banned where female officers guard male inmates. The reality of the relationship between the sexes is such that the historical trend of violence perpetrated by men against women is not matched by a comparable trend pursuant to which men are the victims and women the aggressors. Biologically, a frisk search or surveillance of a man's chest conducted by a female guard does not implicate the same concerns as the same practice by a male guard in relation to a female inmate. Moreover, women generally occupy a disadvantaged position in society in relation to men. Viewed in this light, it becomes clear that the effect of cross-gender searching is different and more threatening for women than for men. (213-214)

The Court also referred to "the humanizing effect of having women in these positions [of prison guard]" as well as to the positive employment equity implications of having women in positions that in the past have traditionally been held by men.

All of the factors discussed by the Court in Conway are relevant to the issues under review in this report and all of them have been raised by the respondents in their interviews and by the stakeholders in their submissions. What is clear from Conway is that the equality analysis of cross gender staffing issues is complex. A simplistic response that male and female inmates have to be treated the same and that male and female guards have to be treated the same does not accord with the right to equality guaranteed by s.15. Section 15 requires that the implications of women's general disadvantaged status in society, the individual and systemic impact of male violence against women, the historical, biological and sociological differences between men and women have to be analyzed in relation to the specific situation of women inmates. Similarly these equality issues, including the issue of employment equity, have to be analyzed with respect to male and female staff. The information gathered through this monitoring project provides necessary data for such an analysis.

The approach taken by the Court in Conway has become known as a substantive equality or result equality approach. Substantive equality has replaced the previously held notion of formal equality that held sameness of treatment as the defining feature of equality. Substantive equality focuses on the conditions that created and perpetuate the inequalities involved in the situation under review and looks to the effects of a practice or policy in order to determine its equality impact. Substantive equality recognizes that in order to further equality, policies and practices need to respond to historically and socially based differences. In order to be treated equally, disadvantaged and non-disadvantaged groups may need to be treated differently.

However, it is the formal equality model that is instilled in the minds of most Canadians as the definitive meaning of equality. Most Canadians believe that treating people the same is what equality is all about. For the majority of Canadians, equality means ignoring differences attributed to race, gender, disability and/or sexual orientation. Taking these factors into consideration is generally seen as discriminatory, unfair, anti-equality. From this perspective, limitations on male PWs or a requirement of only female PWs are understandably seen as unfair and inappropriate. This understanding of equality is clearly reflected in responses from the staff and inmate interviews conducted for this project. A critical follow up to this project must be to provide education to staff and inmates to assist them in developing a fuller and more meaningful understanding of equality and inequality and what needs to be done to further equality. As has already taken place in the courts, education and exposure to the realities and experiences of disadvantaged groups will shift understanding of equality to reflect a substantive rather than a formal approach. Such education is an essential component of the cross gender staffing project if staff and inmates are to be able to understand and work effectively with the policies that emanate from this project.

In addition to the equality rights provided by s. 15, women inmates would no doubt rely upon other Charter rights in the context of litigation or advocacy in relation to the issue of cross gender staffing. This would include the section 7 "right to life liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." In addition, the section 12 "right not to be subjected to any cruel and unusual treatment or punishment" would likely be invoked. In this context, the arguments allowed to in Conway would be developed and pursued. A s.15 equality analysis could be used to support gender based s.7 and s.12 arguments.