CAEFS’ request was supported by twenty-seven other organizations. The Commission decided to undertake a special report to Parliament with respect to the human rights violations experienced by women in prison and issue recommendations to the government based on its findings of the need to redress the discrimination occasioned by government policies and programs. As part of the process of developing submissions to the Canadian Human Rights Commission, CAEFS consulted with a number of national women’s, Aboriginal and justice groups. These groups conducted independent research and a number have indicated that they will also make submissions directly to the Canadian Human Rights Commission.

B. Legal Context for the Imprisonment of Federally Sentenced Women

Women who are sentenced to terms of imprisonment of two years or more serve their sentences in federal prisons by virtue of section 743.1 of the Criminal Code. In relatively rare situations, a woman who receives a sentence of less than two years may be transferred from a provincial jail to a federal prison pursuant to section 16 of the Corrections and Conditional Release Act.

The Corrections and Conditions Release Act (CCRA) and the Canadian and Conditional Release Regulations (Regulations) is the federal legislation which governs the nature of imprisonment and the release of federally sentenced prisoners. Both common law and the CCRA provide that prisoners retain all the rights and privileges that are enjoyed by all members of society except for those which are necessarily removed by the consequences of the sentence of imprisonment. The CCRA and Regulations both include restrictions on the rights and privileges of prisoners and provide them entitlements and procedural protections.

A great number of procedures and practices implemented by the Correctional Service of Canada (CSC) are not spelled out in either the CCRA or the Regulations but are authorized by policy promulgated by the Commissioner of Corrections, pursuant to section 97 of the CCRA. For example, there is no provision in the Act that specifically requires the confinement of women in separate prisons for women, but it is a practice authorized by policy.

Policy also permits the incarceration of women in men’s prisons in certain circumstances. The position of the Correctional Service of Canada is that both practices are legal, as neither infringes the enabling legislation. Too often, the power of the Commissioner to make policy and the implementation of that policy is understood as the freedom to take any measures not specifically prohibited by the CCRA and Regulations.

However, the legality of policy and the manner in which policy is implemented are not assessed only as against the requirements of the CCRA and Regulations. As with all governmental actions, decisions and actions taken by the Correctional Service of Canada must comply with the Canadian Charter of Rights and Freedoms, which applies to all members of society, including prisoners. Decisions that result in discriminatory treatment based on specified grounds are also subject to the Canadian Human Rights Act.

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