s. 4 (h) that correctional policies, programs and practices respect gender, ethnic, cultural and linguistic differences and be responsive to the special needs of women and aboriginal peoples, as well as to the needs of other groups of offenders with special requirements.

Section 5 of the CCRA sets out some additional responsibilities of the CSC, namely:

s. 5 [CSC]… shall be responsible for:
    (a) the care and custody of inmates…

Not only does CSC owe specific duties to FSW, but due to the very nature of the administration of the correctional regime - incarceration and the loss of liberty - FSW are in an extremely vulnerable position. The high degree of control CSC exercises over the day-to-day lives of FSW, combined with the fact that prisons are closed institutions, isolated from public scrutiny,⁴⁸ are evidence of the vulnerability of FSW to CSC’s discretion and power.

British Columbia Chief Justice McEachern in Critchely,⁴⁹ attempted to narrow the scope of the fiduciary doctrine and its application to the Crown. He added that a key element to determining whether the Crown had a fiduciary obligation was to establish whether there had been a breach of “good faith.” His decision concerned the issue of the Crown’s vicarious liability and did not address situations where the Crown has direct control over the matters in dispute. The facts in that case can be distinguished from the factual situation between CSC and FSW: CSC has direct control and power over FSW, and continues to allow discriminatory treatment of FSW. Thus the fiduciary obligation owed to FSW by CSC even survives the test set out in Critchely, a decision of the British Columbia Court of Appeal.

The fiduciary doctrine has rarely been raised in reported litigation against CSC. Only one reported lower court decision considered the issue. The New Brunswick Court of Queens Bench in Squires⁵⁰ recently applied the narrowed definition proposed by Chief Justice McEachern in Critchley in declining to find a fiduciary duty on the part of CSC. In Squires, an inmate was assaulted by other inmates and claimed damages against CSC, arguing that CSC breached its fiduciary duty to him. The court found as a fact that Squires had refused to go to segregation and had refused to assist correctional officers by divulging the problem he had with other inmates. This lower court decision is concerned with a narrow claim that CSC breached a fiduciary duty and owed damages to a prisoner in the context of a particular assault. The case can be distinguished and does not assist with the broader issues of whether CSC’s relationship with FSW is a fiduciary one and whether CSC’s treatment of FSW, along with its failure to remedy known discrimination against FSW, amount to breaches of CSC’s fiduciary duty.