The most plausible connection might arise between FSW with mental disabilities and women with mental disabilities in the general population and/or federally incarcerated men with mental disabilities. Such comparisons however, would surely make a mockery of the purpose of s. 15. Neither women with mental disabilities in the general population nor federally incarcerated men with mental disabilities enjoy any kind of real advantage which could serve as a benchmark for measuring the degree to which FSW with mental disabilities are burdened or denied benefits.

Rather than straining the integrity of the law, it may be more useful to answer the second inquiry by applying the analysis articulated by the SCC in the Eldridge case.⁵⁴ In this case, the Court endorsed the view that discrimination can arise where government fails to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public.

The CCRA specifies that one of the purposes of the corrections system is to assist with the rehabilitation of offenders and their reintegration into the community.⁵⁵ The second inquiry of the s. 15 test can thus be met where a federally sentenced woman can establish that the rehabilitation policies and practices of the prison system do not take her mental disability into account, or where such policies and practices cause her mental disability to worsen. In such a case, a distinction arises because FSW with mental disabilities are denied the opportunity to benefit equally from the corrections system. In other words, the CSC fails to recognize the particular needs required by FSW with mental disabilities to ensure successful rehabilitation and reintegration.

The lack of appropriate programming and services within the federal prison system exacts a high price from FSW with mental disabilities. Without appropriate supports FSW with mental disabilities may have difficulty fulfilling rehabilitation goals, which in turn, may impede their progress in returning to the community. These circumstances fulfil the third inquiry of the s. 15 test; they demonstrate that FSW with mental disabilities are prevented from enjoying an equal opportunity to benefit from the services offered by the prison system. Moreover, the fact that their mental disability may delay their return to the general population imposes an onerous burden on their lives.

In summary, under s. 15 of the Charter, government action which does not take into account the already disadvantaged position of a particular group, and which perpetuates the disadvantage by denying opportunities or imposing burdens may be found to violate the guarantee of equality in the Charter. Such discrimination can only be upheld where the government meets the rigorous test of establishing that it is demonstrably justified in a free and democratic society.

PART IV: FACTORS CONTRIBUTING TO THE DISCRIMINATION AGAINST FEDERALLY SENTENCED WOMEN WITH MENTAL DISABILITIES

Jane is a FSW with a mental disability. Because of certain behaviours that may be caused by her mental disability, the CSC therapeutic team decided that the most appropriate solution for Jane was to place her in segregation and isolate her from the rest of the prison population.

While in segregation, an incident occurred and Jane was charged with assault. She was then referred to a hospital in the community for a psychiatric assessment in relation to her ability to stand trial on the charge.