Hannah-Moffat and Shaw observe that "[w]omen in the federal population come from a wide range of backgrounds and experiences in terms of their age, social and economic position, culture and ethnicity, and sexual preferences. They include women who have spent much of their life on the street or in institutions, older first-time offenders, those with families and children, single women, and those with special physical and health needs. As a whole, the population is very diverse - more so than the much larger male population."³⁵ They further observe that many incarcerated women are identified as having high levels of need for programs and services, including mental health needs.³⁶ The types of mental health problems are different for women than men. Many problems experienced by FSW can be linked directly to past experiences of early and/or continued sexual abuse, physical abuse and assault.³⁷ Overall, women outnumber men in all major psychiatric diagnoses with the exception of Anti-Social Personality Disorder.³⁸

Mental disability can also affect women and men differently. CSC³⁹ describes these differences as:

1. In general men turn their anger outward while women turn theirs inward;
2. FSW are three times as likely to experience moderate to severe depression compared to incarcerated men.
3. Men tend to be more physically and sexually threatening and assaultive while women are more self-abusive and suicidal. Self-destructive behaviours, such as slashing, are not uncommon for women with mental disabilities.

PART III: THE LEGAL FRAMEWORK

Domestically, there are two human rights instruments that govern the laws, policies and practices implemented by the federal government and its agents (the CSC in this case). They are the Canadian Human Rights Act (CHRA)⁴⁰ and the Canadian Charter of Rights and Freedoms (the Charter)^41. When considering matters within the federal jurisdiction, it is not unusual for the court to consider both instruments.⁴² While some of the problems encountered by FSW with mental disabilities may be individualistic in nature, issues associated with current risk assessment tools and security classifications are broad-based and systemic in nature. This paper addresses the systemic discrimination arising from the CCRA and the policies and practices that are carried out under its authority. Both the CHRA and the Charter have the capacity to address systemic discrimination and thus a brief analysis of the various legal mechanisms employed by each instrument is set out below.

A. The Canadian Human Rights Act

Section 3 of the CHRA prohibits discrimination on a number of grounds including "disability". Disability is given a broad and open-ended definition in s. 25; "disability" means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug. Under the CHRA, services and programs offered by the federal prison system are construed as services customarily available to the public. Section 5 of the CHRA states that it is an offence to deny or to differentiate on the basis of disability in the provision of public services.