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Women Offender Programs and Issues

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The Cross Gender Monitoring Project
3rd and Final Annual Report

ii) Options for Handling Allegations

A number of options were put forward in the course of our mandate concerning the handling of sexual misconduct allegations by women prisoners. Each is discussed below.

Option A: The Correctional Investigator's mandate and reporting relationship would be changed through legislative amendment.

Under the Corrections and Conditional Release Act (CCRA) in Part III, the Correctional Investigator is appointed to conduct investigations into the problems of offenders related to decisions, recommendations, acts or omissions of the Commissioner of Corrections and staff that affect offenders either individually or as a group. After investigating problems or incidents, the Correctional Investigator makes recommendations to the Commissioner. The Commissioner is free to follow the recommendations or not.

The Report of the Working Group on Human Rights, chaired by Max Yalden, in it's December 1997 report concerning CSC is entitled Human Rights and Corrections: a Strategic Model. Among others, the Report recommended changes to the legal mandate of the Correctional Investigator (CI), specifically that:

  • The Correctional Investigator be authorized to report directly to Parliament; and
  • The Office of the Correctional Investigator be granted the resources necessary (a) to carry important cases/issues to adjudication, and (b) to play a more active public role in communicating the social rationale for respecting inmates' rights. (pg 33)

CAEFS recommended in their submission that the CCRA should be amended so as to require CSC to act upon documentation of breaches of the law pointed out by the C.I., and that the C.I. should report directly to Parliament.

The option, then, is to amend the law to give the Correctional Investigator the power to require CSC to act. With respect to the matter at hand, the C.I. could be empowered to not only investigate allegations of sexual misconduct made by an inmate, but to enforce their findings. This would be a major shift in their function, one that is not at this time being sought by the C.I. Once an audit body is a decision maker, it may affect their ability to audit without at least the perception of conflict of interest, as any audit would possibly involve their own decisions. On the other hand, the C.I.'s office is very knowledgeable about the penitentiary system, already has trained investigators, and appears to have considerable credibility with inmates who were interviewed.

Option B: CSC's policies and procedures should change such that penitentiaries never deal with such complaints internally; that a person from the community be involved in all such investigations, and that the regional level of grievance be dispensed with for sexual misconduct grievances such that the Deputy Commissioner for Women Offenders would handle appeals concerning sexual misconduct allegations.

This option involves changing who deals with allegations of sexual misconduct such that the investigation might be seen to be more independent and impartial. At a minimum, the institution where the alleged misconduct occurred should not handle the investigation. We know from our findings that internal investigations result in inmates being extremely reluctant to come forward should sexual misconduct occur. As noted above, inmates and staff alike believe that serious allegations such as sexual misconduct, should automatically be handled outside of the institution. Many noted that investigations should at least involve a person outside CSC. Others recommended that any decision at the first instance should be appealable, and should go directly to the Deputy Commissioner for Women Offenders.

In other words, this option keeps the investigation and disposition of sexual misconduct allegations within CSC but introduces some changes that would make the process less open to concerns of conflict of interest, or bias. This option has the benefit of the investigative body also having the power to act on a finding that sexual misconduct occurred. These changes still, however, keep the control of the investigation within the confines of the employer's domain, and therefore, could still be seen as potentially biased or intrinsically to have a conflict of interest. Given the relative power imbalance between an individual inmate making such a serious allegation, and the staff member being investigated by those who might be liable should the accusation be upheld, a chilling effect is likely. The fear of reprisals is also heightened when the social institution is investigating in effect itself.

Option C: The police should automatically be called to handle any allegation that could be viewed as a criminal offence and the courts would make a determination if a charge is laid.

A number of respondents advised the Project that any sexual misconduct allegation that may be a criminal offence should be investigated by the police. The police certainly would be seen as independent of CSC by both parties, and are trained in investigations of these kinds. They have the power to lay a charge if warranted and from there the allegation would be handled by the courts. A difficulty lies with the situation where a women prisoner does not want the police called to investigate her allegation. As is the case in the community at large, women victims are often very reluctant to go to the police and from there through the courts. They sometimes feel like they are on trial, particularly when defence counsel try to discredit them. Women prisoners are likely to have these concerns, and they may well be heightened given their vulnerability to such cross examination. Women prisoners also may have concerns about police given their status as prisoners, and may not trust the police to act fairly when an allegation is being brought forward by an offender.

Option D: An independent body would investigate allegations of sexual misconduct, and possibly other kinds of serious inmate allegations.

A fourth option involves creating a new independent body that would be responsible for investigating and coming to a finding with respect to allegations by inmates of a serious nature, including sexual misconduct. This body would be created by legislative amendment, and would have its authority and procedures outlined in law.

This idea is not a new one and in fact has been suggested by the very body whose role is to provide recommendations, including those that are of a systemic nature. The Correctional Investigator has more than once recommended such a mechanism. The Annual Report of 1996-7 states:

      "On the basis of this Office's experience over the years in dealing with the Correctional Service and without in any way limiting the judicial guidance and control called for by Madame Justice Arbour, I believe there is an urgent need for a mechanism somewhere between the Ombudsman function of this Office and the courts, with the legislative authority to order timely corrective action in instances of illegalities, gross mismanagement or unfairness. The correctional environment, the impact of administrative decisions on individuals within that environment and the past track record of the Correctional Service in approaching individual and systemic areas of legitimate concern in an objective, timely and thorough fashion, demands that a timely and responsive binding avenue of redress be available.

      So again, as I did in last year's Annual Report, in response to and in support of the findings of Madame Justice Arbour, and in concert with the ongoing review of the Corrections and Conditional Release Act, the Commissioner, recommend:

    a) that an administrative tribunal be established with the authority both to compel Correctional Service compliance with legislation and policy governing the administration of the sentence and to redress the adverse effects of non-compliance, and

    b) that access to the tribunal be provided for those instances where if within a reasonable time after receiving a recommendation from the Correctional Investigator pursuant to s. 179 of the Corrections and Conditional Release Act, the Commission of Corrections takes no action that is seen as adequate or appropriate.

      This recommendation, as I have previously indicated, is intended to support and complement, not attenuate or replace, the function of this Office in ensuring that areas of offender concern are decided on in an objective and timely fashion consistent with the Service's legislative responsibility."pg.3)

This option, then, involves taking the investigations of sexual misconduct allegations, along with other allegations of a serious nature such as physical assault, away from CSC and giving the responsibility to an independent body. This option certainly would be seen to be independent by all parties, and would have trained investigators to handle these complex complaints. Such a body would develop considerable understanding and knowledge of the unique world of the penitentiary, and could bring this to bear on coming to a determination. Investigators could also be trained to have knowledge and sensitivity with respect to victims of sexual abuse/misconduct.

There are a number of issues that would need to be addressed in such a model. The question of how stipulations for handling of discipline of employees spelled out in collection agreements with unions can be incorporated in such a new approach, and the degree to which the discipline process would need to rest within CSC are central ones. It may be that such a body would handle fact finding only, leaving discipline to the present CSC process, possibly guided by legislation. Whether information gathered in an investigation of an allegation could be used against a staff member in any discipline or criminal hearing is another important question to be addressed.