NAWL bases its second submission, that Canada (as represented by CSC) is in breach of its international obligations to FSW, upon a review of international instruments, reports, case law, and academic literature. The review concludes that CSC is failing to meet the international standards and obligations that enshrine the rights of FSW, and that Canada must bring its correctional laws and practices into line with its international commitments.

NAWL submits that the Canadian Human Rights Commission must consider CSC’s breaches of fiduciary duty and international obligations as part of its investigation into the treatment of federally sentenced women. In particular, the CSC’s fiduciary status in relation to FSW prevents it from attempting to defend breaches of its duties or to fail to remedy the many documented instances of discrimination experienced by FSW at the hands of CSC.

In formulating these submissions, NAWL critically examined the literature, case law, and statutory instruments (both domestic and international), from a feminist perspective. The issues identified and arguments presented are informed by an equality analysis of the law. This analysis incorporates an analysis of patriarchy and state oppression and includes, from an Indigenous feminist perspective, an analysis of colonization.

II. Background

Women have served their sentences in harsher conditions than men because of their small numbers. They have suffered greater family dislocation than men, because there are so few options for the imprisonment of women... They have had no significant vocational training opportunities… Most significantly, women offenders as a group have a unique history of physical and sexual abuse. Considerably more attention has been devoted to efforts to rehabilitate male sexual offenders than to assist women offenders whose own sexual abuse has never been addressed.⁷

Very little has changed since Madam Justice Arbour made the above observations in her 1996 Report, in which she described the living conditions of FSW and breaches of their rights. In fact, the situation has worsened for many FSW in a variety of ways we discuss in this paper. Women continue to make up only a small percentage of federally sentenced prisoners (approximately 5%).⁸