Discrimination may be substantiated where the mental health services provided by the federal prison system are found to be inferior in quality and/or effectiveness than those available in the community. Although the comparison between prison services and community-based services represents a good starting point, the results may not offer a complete answer. Such a comparison may simply demonstrate that both the prison system and the community have failed to address the needs of persons with mental disabilities. In some regions, such as the Atlantic region, prison-based programs may even be seen to be better resourced, and therefore viewed as superior to those available to women in the community. It is argued however, that such findings would not absolve CSC from its responsibility to provide effective programming to FSW with mental disabilities. Indeed, the CSC has a statutory obligation to be responsive to the special needs of offenders.¹⁰⁴

Consequently, discrimination may be triggered where it can be established that the mental health of an inmate was made worse by being in prison. Although prisoners are entitled to receive mental health services¹⁰⁵ it is worth noting that the CCRA does not require the prison system in and of itself to provide such services. The CSC has made some attempts to provide mental health programming to women, but the real issue in question is the quality and effectiveness of such programming when it is offered in a penal environment, as opposed to a milieu where therapy and health, not merely security and control, are primary objectives.

Most advocates believe that offering services in the community is a more effective option and may minimize the chances that women will be criminalized. Regrettably, the devastatingly lack of resources for mental health services in the community is viewed by some as shoring up CSC’s argument that it is serving the needs of women well by developing prison-based mental health programs. The logic is circular and is creating an increased number of women who are ostensibly being criminalized in order to allow them to access prison-based mental health services because community-based services are less likely to be available for women who are seen as challenging “patients” in the community.

There is evidence that CSC has encountered difficulties in supplying effective mental health programs for women. For example, as discussed elsewhere in this paper, the Correctional Investigator determined that in some instances, women inmates have been seriously harmed by both the lack of appropriate services and the substandard quality of existing services.¹⁰⁶ In addition, in its role of assisting women prisoners, CAEFS has had first hand experience in working with women whose mental condition worsened because of ineffective treatment plans imposed on them by CSC.¹⁰⁷

People are sent to prison to serve their sentence and to receive rehabilitation to enable them to reintegrate successfully back into the community.¹⁰⁸ Clearly, FSW who experience mental health problems require mental health services as part of their rehabilitation. However, given the paramount statutory requirement to first and foremost protect society¹⁰⁹, it can be assumed that providing resources and developing mental health services is not the main priority for CSC. Furthermore, given the punitive and non-therapeutic environment of a penal institution, the goal of providing good quality, in-house mental health care may be a contradictory undertaking.

It is submitted that services located in the community that are dedicated to women with mental disabilities would have the capacity to offer a better quality of service, and would also fulfil the principle that CSC use the least restrictive measures when providing services to FSW with mental disabilities.¹¹⁰ The fact that some community-based services may be under-resourced and underdeveloped should not be used as an excuse to dismiss the idea of CSC investing in the development and accessing of community-based and health-controlled services outside the prison system.