Correctional Service Canada
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Women Offender Programs and Issues

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The Cross Gender Monitoring Project
3rd and Final Annual Report

iii) The Canadian Human Rights Act

The federal government is also governed by the Canadian Human Rights Act (CHRA) in its dealings with staff and inmates. Among other things the CHRA prohibits discrimination on the basis of sex in relation to employment and to the provision of goods, services and facilities. The CHRA is itself subject to the Charter and will be interpreted and applied in accordance with the Charter jurisprudence on equality and discrimination.

The s. 7 prohibition against discrimination in employment is unqualified:

7. It is a discriminatory practice, directly or indirectly,

(a) to refuse to employ or continue to employ any individual, or

(b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.

However, the legislation does recognize that sometimes the requirements of a particular job make it necessary to exclude certain individuals or groups, or to hire only members of a specific group. In furtherance of this recognition, the Act provides exceptions to the general prohibition against discrimination and deems these exceptions not to constitute discriminatory practices. The bona fide occupational requirement (BFOR) is one of these exceptions. Section 15 of the Act provides:

15. (1) It is not a discriminatory practice if

(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement; ...

(2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.

The 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. However, given the extensive research that demonstrates vastly higher rates of physical and sexual abuse of women by men than by women, the protection in having only female PWs would be found in the significant reduction in the risk of physical or sexual abuse by female guards. This would be consistent with the deterrent, preventive effect intended by the imposition of vicarious liability.