Pursuant to s. 16 of the CCRA, the federal government has the authority to negotiate exchange of services agreements (ESAs) with provinces, whereby the federal government may contract with provinces to confine federally sentenced prisoners in provincial jails. Prior to the opening of the new regional prisons for women, approximately one half of federally sentenced women were incarcerated in provincial jails pursuant to ESAs. When P4W was the only federal women's prison, the ESAs provided additional prison beds required to accommodate federally sentenced women. In addition, they provided opportunities for some federally sentenced women to remain closer to their children and other family and/or community supports. In Québec, the ESA permitted Francophone women to have access to French language services and programs. Although local provincial jails generally had limited program and employment opportunities, women who chose to remain in provincial jails tended to be of the view that the maintenance of family ties as well as the increased likelihood of successful reintegration occasioned by more limited dislocation from their communities and families outweighed such deficits. Although the federal government paid for the beds, the provinces generally had the right to refuse to house women however. With the exception of some women from Newfoundland and all federally sentenced women in British Columbia, women serving sentences of two years or more are now incarcerated in the federal prison system. When Newfoundland joined Canada in 1949, the province reserved the right to house federally sentenced prisoners in provincial jails in exchange for federal per diem payments. As a result, unless women request otherwise or the provincial authorities find the women too challenging to maintain in their provincial prison in Clarenville, women may serve their federal sentences in Newfoundland. The evisceration of health and social services in the province over the past decade has occasioned a dramatic increase in the criminalization of women with significant mental health and capacity disabilities. Given the challenges such women pose in terms of accommodating their needs in prison, it should come as no surprise that the province has chosen to not retain them. In direct contrast, by virtue of its ESA, the government of British Columbia is responsible for the detention of all women serving federal as well as provincial terms of imprisonment. B.C. negotiated this agreement ten years ago, at the same time as they were replacing an old provincial women's jail. As such, the federal government invested in the construction of the Burnaby Correctional Centre for Women (BCCW) as opposed to a regional federal women's prison. Accordingly, although the Solicitor General of the day and the current Commissioner of Corrections made a commitment to ensure that federally sentenced women in/from B.C. would enjoy the same rights and entitlements of their counterparts in the new regional prisons, there is a significant group of federally sentenced women who oppose the arrangement which has been imposed upon them due to the lack of a federal prison for women in CSC's Pacific region. Pursuant to a s. 16(2) of the CCRA, the correctional law which applies to federal prisoners within a provincial jail are those of the province in which the jail is situated. Therefore, the provisions of the CCRA which provide such legal protections as access to programs, conditions of confinement, and the grievance procedure, for example, do not apply to federally sentenced women in BCCW. In addition, as a consequence of s. 167(2)(b), the Correctional Investigator has no jurisdiction to investigate complaints from federally sentenced women in BCCW. As such, federally sentenced women in the Pacific region are denied the protection of the CCRA and do not have access to the same correctional redress mechanisms that are available to other federally sentenced women prisoners. Paradoxically, federally sentenced women serving life sentences in B.C. remain under the jurisdiction of the National Parole Board (NPB). They must therefore satisfy the board's national policies in terms of programs, etcetera, in order to qualify for release. This poses serious problems for such women when they are in provincial jails which are not geared to meet the program needs of prisoners serving sentences of longer than two years. Because CAEFS recognizes the legitimate interest of federally sentenced women who wish to remain close to their families, we believe that s. 16 agreements should continue to be available to enable them to serve their sentence in provincial jails if they make that choice. However, because in so doing, they must relinquish their entitlements under the CCRA, CAEFS believes that the confinement of federally sentenced women in provincial jails should occur only on a voluntary basis.
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