The response to Justice Arbour’s Report by the Correctional Service has been anything but public and inclusive. The clear “vision for change” of a decade ago is clouded. The impact of the top priority ascribed to Women’s Corrections in 1996 is open to serious question.³⁰

It is incumbent on the Canadian Human Rights Commission to demand that CSC address the continued discrimination of FSW, by ensuring that their basic domestic and international human rights are honoured and respected and that CSC fulfils its fiduciary duty to FSW.

III. Fiduciary Duty

NAWL’s submission regarding the Crown’s (CSC’s) breach of its fiduciary duty to FSW, begins with a brief overview of the fiduciary doctrine, applies the law to CSC’s duty to FSW, and then looks specifically at CSC’s breach of its fiduciary obligations to Aboriginal FSW/Aboriginal peoples.

1. Introduction

The policy underlying the law of fiduciaries is focused upon the desire to preserve and protect the integrity of socially valuable or necessary relationships which arise from human interdependency. Fiduciary laws’ preservation of relationships that come under its auspices requires that fiduciaries ascribe to a high standard of conduct.³¹

Fiduciary relationships were first created and enforced by the courts of Equity. The terms fiduciary duty, obligation and relationship are used interchangeably in the academic literature and jurisprudence; this paper also uses the terms interchangeably. Canadian jurisprudence has developed and expanded the fiduciary concept so that it is now “universally applicable”³² and based on flexibility and fluidity in its approach.³³ In fact, Canadian courts have been identified as being at the cutting edge of developing the fiduciary doctrine, in particular as it relates to Aboriginal peoples.³⁴