Segregation from the general prison population is a severe and restricted form of confinement, which the courts have held constitutes a separate and distinct form of confinement that requires its own distinct legal justification. The severity of segregation is recognized by Parliament in the CCRA, which provides for segregation review boards to control against its arbitrary imposition. The Arbour Commission found that the arbitrary and illegal use of segregation was so prevalent at the Prison for Women in Kingston that scrutiny by courts is necessary to properly regulate extended periods of segregation. Federally sentenced women in B.C. are subject to a lesser standard of protections with respect to the use of segregation than are federally sentenced prisoners in penitentiaries across the country because the procedural protections regulating the use of segregation are not available to them under the agreement.

The ESA provides that the federal and provincial governments may agree upon what information can be released by the Director of Burnaby upon request by a federally sentenced woman, and further what information will be subject to the Privacy Act and Access to Information Act. This derogates from the broader entitlement to information outlined in s. 27 of the CCRA and circumvents the federal Access to Information and Privacy Act by circumscribing the information to which those Acts apply.

Currently, there is no provision in the agreement that refers to the Correctional Investigator, and that Office does not involve itself in matters relating to federally sentenced women in B.C. Section 167(2) of the CCRA excludes from the purview of the Correctional Investigator Investigations into “any problem of an offender related to the offender’s confinement in a provincial correctional facility, whether or not the confinement is pursuant to an [ESA]”. This recognizes the constitutional limitations of a federal investigative body over provincial authorities.

3. Disability

The CCRA establishes a complete statutory framework which includes all aspects of the confinement and release of prisoners serving federal sentences. The overriding principle expressed in paragraph 4(a) of the CCRA is the protection of society. The primacy of this concern reflects the traditional security based model for prison management. Because of the statutory mandate, CSC views virtually all decisions concerning imprisonment through a security prism. Unfortunately, CSC interprets this requirement to mean that security concerns prevail even over constitutional rights, including equality rights.

Submission of the Canadian Association of Elizabeth Fry Societies (CAEFS) to the Canadian Human Rights Commission for the Special Report on the Discrimination on the Basis of Sex, Race and Disability Faced by Federally Sentenced Women