Women Offender Programs and Issues

The Cross Gender Monitoring Project
3rd and Final Annual Report

Executive Summary

The Cross Gender Monitor was appointed by the Correctional Service of Canada (CSC) to provide an independent review of the policy and operational impacts of cross-gender staffing in federal women's penitentiaries. The appointment of an independent monitor for a three-year period was recommended by the Arbour Commission of Inquiry into Certain Events at the Prison for Women in Kingston beginning on April 22, 1994. This, the third and final Annual Report of the Monitoring Project, includes a set of final recommendations. The third report, covering the period 1999/2000, departs from previous annual reports by recommending an end to the use of male staff members as front-line "Primary Workers" (PWs) in facilities for federally sentenced women (FSW) inmates.

Methodology. During the third year, information was gathered from (1) site visits to all but one of the federal facilities housing FSW, plus Burnaby Correctional Centre for Women, a provincial facility which also houses FSW, principally from British Columbia, through an Exchange of Services agreement; (2) structured interviews with 109 FSW; (3) structured interviews with 90 staff, contract workers, volunteers and management, including 28 men; (3) interviews with community agencies (such as Elizabeth Fry Societies) and Citizens' Advisory Committees, where appropriate; (4) consultations with officials with the Canadian Human Rights Commission, the Canadian Association of Elizabeth Fry Societies, the Correctional Investigator's Office, the Union of Solicitor General Employees and various officials from the CSC, including the Deputy Commissioner for Women's Sector office. In addition, written submissions were requested from these National Stakeholders; we received submissions from the Union of Solicitor General Employees (USGE), the Correctional Investigator (CI), the Canadian Association of Elizabeth Fry Societies (CAEFS), National Association of Women and the Law (NAWL), a male Primary Worker from Grand Valley and a female Primary Worker from the same institution; (5) a review of selected videos of cell extractions of FSW; (6) a review of relevant statistical data and documents, including CSC investigation reports, policies and information concerning complaints and grievances; and (7) a review of the legal context within which the policy decision on cross-gender staffing of women inmates is to be made and with which it must comply, including international law, the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act, employer liability, and the Corrections and Conditional Release Act.

Findings. The following are the key findings from the third year, including findings relevant to awareness and implementation of the National Operational Protocol for Front-Line Staffing in the CSC Women's Institutions and Maximum Security Units, otherwise known as the cross gender policy. This CSC policy, introduced in August of 1998, sets out principles and operational policies governing the use and presence of male staff, contract workers and maintenance workers in penitentiaries housing women inmates.

General

• the women-centred approach, clearly enunciated in Creating Choices, is at serious risk, only 4 to 5 years since the opening of the regional institutions when the vision for meeting the unique needs of FSW seemed promising. There is a lack of recognition within CSC that, because of their risk and needs profiles, and their relatively small numbers, FSW will always require a greater per capita expenditure by CSC than male inmates, in a system clearly designed for men.

Protocol

• staff awareness of the 1998 Protocol is low. In structured interviews, three out of five staff said they were not at all or only somewhat familiar with it, and three out of four could not name a single provision in it, although a majority of staff were aware that CSC policy prohibits the use of male staff in certain specific functions;
• male PWs, for their part, almost unanimously object to the Protocol and view it as an attack on their professionalism. Although most are sensitive to the potential for abuse inherent in their positions, their support for the Protocol is often on the basis of its utility as a protection for themselves against false allegations. Many male staff members have expressed feelings that they are being discriminated against because of their gender;
• in the third year, there were broad-based and in some cases purposeful violations of the Protocol, including:

o not announcing the entry of front-line staff onto the living unit, which is necessary to give inmates time to cover themselves;

o male staff not being "paired" with female staff at night or when entering the living unit;

o allowing male maintenance workers to be on the living unit without an escort by a female staff member;

o the use of male staff during "planned emergency response" activities, such as cell extractions;

o it is now the working practice in at least one institution that two men conduct rounds together during the daytime hours. In at least one institution, lone male PWs conduct rounds during the day;

• the Protocol needs clarification or amplification in certain areas, including:

o the use of single male escorts for temporary absences (TAs), since there is often pressure on male staff to escort women who would otherwise not have full access to TAs, and

o the pairing of male staff with female workers during the daytime and in areas other than the living unit.

Privacy Violations

• the number of actual privacy violations reported by both staff and FSW increased during the third year of the Monitoring Project, including:

o inmates being seen partially clothed as a result of staff not providing enough time for covering up before staff enter a bathroom area, and

o inmates being seen partially clothed as a result of staff not announcing before entering the living unit.

Allegations of Sexual Harassment or Assault

• during the third year, there were approximately 25 allegations reported (to us, or to CSC) of sexual harassment and other sexual approaches to women by male contract and other workers, including one by a spiritual leader (very few of these allegations involved a Primary Worker);
• a majority of FSW and a significant number of staff expressed dissatisfaction with the current CSC process for investigating allegations of sexual harassment or assault. Our review of a number of investigation reports suggested the need to involve both outsiders and persons trained in and sensitive to sexual abuse issues in these investigations.

Support for The Use of Male Staff in Selected Functions

• similar proportions of staff and FSW agree or disagree with various restrictions on the use of male staff in women's facilities, although there are some significant differences. Findings include:

o there is minimal support among both groups for the use of male staff in functions which are most intrusive of a woman's privacy, such as strip searches and camera cell duty;

o less than half the FSW, but three-fifths of staff, support the presence of male staff on the living unit at night;

o less than half the staff, but two-thirds of FSW, support the use of single male escorts for TAs;

o half of each group support allowing male staff, contract workers or volunteers to be alone with an FSW in an area where they cannot be observed, and two-thirds of each group support allowing male staff on the living unit during the day, provided they are paired with a female staffer.

Working Conditions and Frustrations

• because of the restrictions on the use of male staff in women's facilities, male and female PWs are actually performing different jobs. Women PWs spend significant portions of their shifts doing the "dirty work" rather than doing the work they thought they would largely be doing, i.e., counseling, release planning, program delivery. These skills are being underutilized as a consequence, and many female staff move on. Those who remain are increasingly frustrated;
• for their part, male PWs have expressed frustration with limitations on their role. Male staff are sensitive to and perceive restrictions on their roles as an insult to their individual commitment to professionalism. These workers want to carry their full work responsibilities, to fulfill all aspects of their job, competently and completely. Their perception is they are "being viewed as potential harassers and rapists" regardless of who they really are. Male PWs also expressed concern about the overburden on female colleagues with respect to custodial functions and night shifts;
• concern was expressed by some prison managers that, without a cap on the number of male staff at women's institutions, there would be a dramatic increase in the number of male PWs, given imminent vacancies expected in these positions.

Staff Screening, Hiring and Training

• during the third year, staffing shortages led to a significant number of transfers of male staff directly (and without screening) from male penitentiaries to female facilities. These men were still awaiting women-centred training at the time of our interviews nine months later;
• the erosion of training noted in our Second Annual Report is continuing and increasing. Last year we indicated that the 10-day Women-Centred training module had been reduced to 5 days in most locales. This year, our interview findings indicate that many staff do not receive any Women-Centred training at all;
• in structured interviews, almost a third of staff indicated they had not had any training specific to women in corrections, and a quarter had had only the much shorter version of the original CSC "women-centred" training package;
• of those who had had training specific to women in corrections, a minority felt that this training had adequately prepared them for working with FSW;
• training is often at risk when managers need to cut budgets. However, CSC needs to renew its commitment to women-centred training and ongoing retraining and upgrading of skills and knowledge.

Conclusions. In our Second Annual Report, we recommended that (inter alia):

"in light of the views of the substantial majority of Federally Sentenced Women favouring the employment of screened and trained male Primary Workers in specific roles, we are recommending that males remain a part of the staff of federal women's facilities, if and only if all of the following are implemented:

• "that recruitment, screening and training policies and procedures remain fully in place, and the amount and content of training policies and procedures ensure appropriate knowledge and attitudes on the part of staff working in FSW's facilities;
• "that effective policies specifying appropriate roles for male Primary Workers are in place and enforced;
• "that the needs of the significant minority of Federally Sentenced Women who feel very strongly that they are not willing or able to deal with males in the living quarters at night are accommodated and respected in policy and practice; and
• "as in England, that male Primary Workers not exceed 20% of the Primary Worker staff complement in light of policy requirements, special needs of some Federally Sentenced Women, and ensuring that an unfair burden does not fall on female PWs."

We conclude that none of the four conditions necessary for the continued use of male PWs in federal facilities for women has been fulfilled during the period of our independent monitoring function. Indeed, developments in our third year lead, if anything, to a greater concern that these four key conditions for the continuation of male PWs will ever be fulfilled.

Recommendations. In accordance with our overall conclusion, we recommend the use of female-only front line workers as essential for the protection of FSW. Specifically, we recommend the following:

Recommendation 1:

It is recommended that males should not be permitted to be front line Primary Workers. This would include not being permitted to act in a security function with respect to living and segregation units, cell extraction teams regardless of time of day, and escorts of any kind.

Recommendation 2:

It is recommended that all persons working in a facility for Federally Sentenced Women, including regional treatment centres and community correctional centres, be screened and undergo women-centred training to ensure appropriate attitudes, knowledge and experience. The women-centred training should be at least ten days in addition to core training. Screening should include checks for criminal convictions of a sexual nature.

Recommendation 3:

It is recommended that sufficient funds be allocated for effective screening, as well as initial and ongoing women centered training, and be permanently provided and completely protected for each facility housing Federally Sentenced Women.

Recommendation 4:

It is recommended that elevated risk positions either be filled by females only or changes should be instituted, such that, women are never alone with a male worker in an unobservable area. In addition, a review of all positions should be undertaken by the office of the Deputy Commissioner for Women Offenders to determine if any positions or contracts should be female only. Any such exemption should be directly related to elevated risk of sexual misconduct against Federally Sentenced Women.

Recommendation 5:

As for minimum standards, the following are required in order to increase the credibility of and effectiveness of the handling of sexual misconduct allegations.

a) that no process internal to CSC, even with outside advisory review, be used to handle inmate sexual misconduct accusations against non-inmates, including allegations against staff, contract workers and volunteers;

b) that conflict resolution or mediation not be used for sexual misconduct allegations;

c) that inmate sexual misconduct allegations be investigated and dealt with completely outside of the facility where the alleged incident occurred;

d) that any process incorporate an approach for complaints by Aboriginal women inmates that recognizes their vulnerability to persons in positions of trust and authority within their own culture as well as outside it;

e) that policies and procedures for fact finding/investigations be based on principles of due process and fairness, and should be clearly articulated. There should be a formal process for a "paper trail", which must include a way of tracking each step from the initial allegation to its resolution. Privacy and access to information legislation and regulations must be fully incorporated in such policies and procedures;

f) that both parties have the right to an assistant of their choosing;

g) that police must be called in to investigate allegations that could constitute a criminal offence; if the woman inmate complainant does not want to proceed, other mechanisms for investigation must be open to her.

h) that CSC is clearly responsible for protecting the complainant from the respondent or from reprisals, including suspending the respondent with pay or reassigning such that contact between the complainant and the respondent is not possible;

i) that those investigating such allegations be free of conflict of interest concerns, and have training in or knowledge of investigating sexual misconduct allegations, and informed about sexual abuse/misconduct, criminal justice and corrections;

j) that there be fully resourced independent monitoring or auditing of whatever approach is selected;

k) Federally Sentenced Women should have access to independent funded assistance in submitting the initial allegation and throughout the process. This assistance could be provided by community organizations such as Elizabeth Fry Societies, aboriginal organizations, victim service organizations; and,

l) Federally Sentenced Women and those working in the women's facilities, as well as regional and national headquarters, are provided with ongoing information and education as to the new approach taken to sexual misconduct allegations.

While each option listed above have benefits and drawbacks, after careful consideration, we are recommending option D that "An independent body would investigate allegations of sexual misconduct and possibly other kinds of serious inmate allegations" as the preferred route as it provides the greatest capacity for a mechanism to deal with these serious complaints that would be, and would be seen to be, unbiased, independent, knowledgeable and fair.

Recommendation 6:

It is recommended that the Corrections and Conditional Release Act (CCRA) be amended at the earliest opportunity to create an arm's length body that would handle allegations of sexual misconduct and other serious allegations by inmates such as physical assault.

The CCRA amendments should include:

• the definition of sexual misconduct
• the role and composition of the tribunal
• mechanisms for investigations
• timelines for all stages of the process
• penalties for various types of sexual misconduct
• whistleblowers protection
• provisions for protection of complainants
• provisions for due process for respondents
• provisions requiring preventive measures, including screening, training and ongoing professional development
• provisions for hiring a secretariat
• the Secretariat to the body should be adequately resourced on a long term basis.

• The body and its Secretariat should be arm's length to the Solicitor General and the Ministry itself. At the same time, the body should be given full authority to conduct a proper and thorough investigation.
• Federally Sentenced Women who are housed through federal/provincial agreements in provincial facilities should have equity of treatment and protections with other Federally Sentenced Women. Federal/Provincial agreements should clearly indicate that Federally Sentenced Women have access to this new body for allegations of sexual misconduct.

Recommendation 7:

That the CCRA be amended to require that the Correctional Investigator report directly to Parliament; that the monitoring or audit responsibilities be recognized and properly resourced by providing sufficient funds for at least two full time staff dedicated to Federally Sentenced Women.

Recommendation 8:

In the event that the federal government opt for continuing to handle allegations of sexual misconduct made by Federally Sentenced Women within the Correctional Service of Canada,

It is recommended that any boards of investigation be composed of a majority of community representatives who have expertise in sexual abuse/misconduct.

Recommendation 9:

As recommended in our First and Second Annual Reports, it is recommended that CSC develop a sexual harassment policy that clearly prohibits sexual harassment of inmates by staff. This policy must clearly articulate whatever option for handling of such complaints is chosen.

Recommendation 10:

That, in addition to the strengthening of the Correctional Investigator's (C.I.) capacity to monitor allegations of sexual misconduct recommended above, the long-standing recommendation from Creating Choices to create an independent National Advisory Committee should be implemented.

Recommendation 11:

While CSC is establishing such a committee, undertaking the necessary steps to implement a female only front line worker policy, and undertaking legislative amendments, an independent monitor should be empowered to carry on the work of this monitoring project for one year.