V.
Remedies
CSC’s breach of
its fiduciary duty to FSW and Aboriginal people, and its breach of international
law make it abundantly clear that the status quo cannot continue. The
broad remedial mandate of the Canadian Human Rights Commission provides
the foundation for the possibility of significant change in CSC’s treatment
of FSW. The starting point for any proposed remedy should be the implementation
of the remedies sought by the Canadian Association of Elizabeth Fry
Societies (CAEFS), including the full implementation of the recommendations
of Justice Arbour made in 1996. These include: 1) the development of
an external oversight body to enforce compliance with the law and human
rights; 2) the development of a prisoner court challenges fund designed
to enable prisoners to have access to avenues to remedy any further
breaches of Canadian law and international obligations; and 3) compensation
for past and ongoing breaches of FSW’s rights and the government’s breaches
of fiduciary duties.
VI.
Conclusion
The history of
opportunities which have been missed has touched upon virtually every
issue which was directly or indirectly raised by the events under
consideration by this Commission. Section 3 of the CCRA asserts that
the purpose of the federal correctional system is to contribute to
the maintenance of a just, peaceful and safe society…. The society
in which many women offenders live is neither peaceful nor safe. By
the time they go to prison they should be entitled to expect that
it will be just.118
Despite the many inquiries and reports that have highlighted the discrimination
faced by FSW on the basis of their sex, race, mental, cognitive disability or
illness, the Canadian government, and especially CSC, continues to fail to
remedy the discrimination. This paper has described how CSC’s apparent
refusal to implement the recommendations in the reports is a breach of its
fiduciary duty to FSW. The analysis and conclusion is founded upon the issues
that have been identified in the reports, including the application of discriminatory
security assessment and classification methods that result in the application of
maximum security designation and the consequent segregated isolation of
women, including, for the past seven years, the housing of women in male
prisons.
CSC, as an agent of the Crown, has a special fiduciary relationship with
Aboriginal peoples and particularly with Aboriginal FSW in its care. CSC’s failure
to acknowledge Aboriginal peoples’ self-government right to administer justice, constitutionally protected in section 35(1) of the Constitution, is a breach of
CSC’s fiduciary duty to Aboriginal peoples.
118. |
Arbour,
supra, note 7, at 248. |
|