Based on a review of the binding jurisprudence and relevant academic literature, NAWL submits that CSC is in a fiduciary relationship with FSW, which means that for the breaches found, CSC must remedy the ongoing, documented discriminatory treatment of FSW.

2. CSC’s Breach of Fiduciary Duty to FSW

In order to determine whether a breach of fiduciary duty has occurred, only the actions of the fiduciary are relevant. The common, core obligation pertaining to all fiduciaries within the scope of their fiduciary positions is to act in the best interests of their beneficiaries.⁵¹

The substandard and discriminatory treatment of FSW by CSC demonstrates that CSC has not acted in “good faith” or in the “best interests” of the vulnerable FSW population “in its care”. CSC’s continuing failure to remedy the discrimination experienced by FSW and its disregard of the myriad recommendations to remedy its unacceptable treatment of FSW, is but one example of the fact that CSC has not acted in “good faith” or in “the best interests“ of FSW.

A useful and obvious example of CSC’s breach of its fiduciary duty to FSW is the security classification system utilized and endorsed by CSC. The application of the risk assessment factors, used to determine classification, unfairly discriminates against Aboriginal FSW as well as FSW with mental health and capacity concerns.⁵² As part of the CSC’s assessment the determination of risk includes a review of the prisoner’s social history. Women with a limited employment history, low education level, little or no vocational training, who have been victims of violence, physical problems, mental illness or disabilities are identified as having high needs and are likely to be classified as maximum security prisoners as a result.⁵³ Aboriginal women, the most disadvantaged, constituted an alarming 41% of FSW classified as maximum security in 1997⁵⁴ (the figure rose to 49% in 2001) as noted by CSC: