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Cross Gender Monitoring Project

a) Equality and Cross Gender Staffing in Federally Sentenced Women Facilities

Canada is a signatory to the Standard Minimum Rules for the Treatment of Prisoners. These rules were developed by the United Nations and represent, as a whole, the minimum conditions which are accepted as suitable for member nations. The section most relevant to cross gender staffing is the following:

53. (1) In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution. (2) No male member of the staff shall enter the part of the institution set aside for women unless accompanied by a woman officer. (3) Women prisoners shall be attended and supervised only by women officers. This does not, however, preclude male members of the staff, particularly doctors and teachers, from carrying out their duties in institutions or parts of institutions set aside for women.

Recent reports by two international bodies into treatment of women prisoners in the United States have underscored the reasons for developing minimum standards concerning the privacy and safety of these prisoners. The Human Rights Watch, Women's Rights Project in its report entitled: "All Too Familiar: Sexual Abuse of Women in U.S. State Prisons" published in 1996 raised profound concerns about the consequences of allowing unscreened, untrained men access to female prisoners. This study took place over a two year period and the following statement probably best captures the conclusions:

Our findings indicate that being a woman prisoner in the U.S. state prisons can be a terrifying experience. If you are sexually abused, you cannot escape from your abuser. Grievance or investigatory procedures, where they exist, are often ineffectual, and correctional employees continue to engage in abuse because they believe they will rarely be held accountable, administratively or criminally... We found that male correctional employees have vaginally, anally, and orally raped female prisoners and sexually assaulted and abused them... In additional to engaging in sexual relations with prisoners, male officers have used mandatory pat-frisks or room searches to grope women's breasts, buttocks, and vaginal areas and to view them inappropriately while in a state of undress in the housing or bathroom areas.11

Amnesty International in their 1998 report entitled " 'Not part of my sentence' Violations of the Human Rights of Women in Custody"12 slammed the United States over what it described as:

Reports of rape and other forms of sexual abuse-including sexually offensive language and male staff touching women's breasts and genitals during searches or watching them when they are naked--are widespread in U.S. prisons and jails....Cases of sexual abuse actually reported are probably the tip of the iceberg as victims are often reluctant to complain for fear of not being believed or suffering retaliation." As a result of its investigation, Amnesty International is calling for female inmates to be supervised by female staff only, and for victims to be more effectively protected from retaliation if they report abuses.

In some ways, the monitoring of male staffing in female institutions has led to discussions as to the validity of these minimum rules, and the nature of equality itself. Should male staff in female institutions be allowed in Canadian penitentiaries to do what female staff in male institutions are allowed to do? Many argue, particularly staff, that this is only fair, that the same restrictions should apply to both in the name of equality as guaranteed by the Canadian Charter of Rights and Freedoms.

In a 1993 decision of the Supreme Court of Canada in Conway (1993) this issue was directly raised. A male inmate, Conway, argued that he was being discriminated against because he was subject to frisk searches and surveillance by female officers, whereas female inmates were not subject to the same treatment by male officers. The Supreme Court rejected Conway's appeal, stating the following:

"Given the historical, biological and sociological differences between men and women, equality does not demand that practices which are forbidden where male officers guard female inmates must also be banned where female officers guard male inmates. The reality of the relationship between the sexes is such that the historical trend of violence perpetrated by men against women is not matched by a comparable trend pursuant to which men are the victims and women the aggressors. Biologically, a frisk search or surveillance of a man's chest area conducted by a female guard does not implicate the same concerns as the same practice by a male guard in relation to a female inmate. Moreover, women generally occupy a disadvantaged position in society in relation to men. Viewed in this light, it becomes clear that the effect of cross-gender searching is different and more threatening for women than for men. The different treatment to which the appellant objects thus may not be discrimination at all."

The decision by the Supreme Court of Canada in Conway reflects the current approach to equality that has evolved through Canadian equality jurisprudence. In the context of human rights and Charter litigation, tribunals and courts were faced with the complex realities of long term systemic discrimination which has resulted in people who are very differently situated from each other, based on group membership relating to gender, race, disability, and sexual orientation. In order to deal with these differences in a respectful and meaningful way (that is, in a way that did not further entrench existing inequalities), the courts in Canada

have moved beyond the more simplistic approach to equality known as formal equality. Formal equality is premised on the notion that equality means treating likes alike and posits same treatment as the defining feature of equality. Realizing the impossibility of remedying entrenched inequalities simply by treating everyone the same, Canadian courts adopted the approach to equality known as substantive equality or result equality. Substantive equality focuses on the conditions that created and perpetuate the inequality under review and looks to the effects of a practice or policy to determine its equality impact. Substantive equality recognizes that in order to further equality, policies and practices need to respond to historically and socially based differences. In order to be treated equally, disadvantaged and non-disadvantaged groups may need to be treated differently. This is the process and approach we see exemplified in the Conway decision and in innumerable other decisions at all levels of courts and tribunals.

However, it is the formal equality model that has been instilled in the minds of most Canadians as the definitive meaning of equality. Most Canadians believe that treating people the same is what equality is all about. For the majority of Canadians, equality means ignoring differences attributed to race, gender, disability and/or sexual orientation. Taking these factors into consideration is generally seen as discriminatory, unfair, anti-equality. Yet taking these differences into account is what substantive equality requires. The substantive approach to equality is more abstract and more complex to understand and to apply than the formal equality approach. It requires an understanding of historical and social contexts and an appreciation of their significance. As has already taken place in the courts, education and exposure to the realities and experiences of disadvantaged groups will shift the Canadian understanding of equality to reflect a substantive rather than a formal approach. Part of the equality project must be to educate Canadians on these matters so that we have a fuller and more nuanced understanding of equality and inequality, and of what needs to be done to further equality. We realize that part of the intent of the Cross Gender Monitoring Project must be to educate staff and inmates on these matters so that they can understand and work effectively with the policies that might emanate from this project.

As a result of recent interviews with national organizations including the Canadian Association of Elizabeth Fry Societies, the Union of Solicitor General Employees, the National Association of Women and the Law, and government agencies such as the Canadian Human Rights Commission, the Office of the Correctional Investigator, CSC, and the Monitoring Project Advisory Committee, the following central issue has emerged as one that should be fully addressed in the final year of the Co-Monitors' mandate. With respect to cross gender staffing issues, how can we collectively respect the wishes of federally sentenced women, while at the same time taking into account Canada's international mandate and commitments, constitutional rights, including equality provisions in the Canadian Charter of Rights and Freedoms., and human rights obligations. Some respondents stress that Canada must respect its legal and human rights obligations, and ultimately this means that no males should be permitted in the living areas of facilities housing federally sentenced women. They state that the international standards, which include no males in the living quarters where women are incarcerated, are felt to be necessary in order to protect women prisoners from sexual harassment and sexual assault, as well as to protect constitutional equality and privacy rights. Other respondents see the no males in living quarters policy as creating an undue burden on female Primary Workers who under the present unique job description must assume a disproportionate burden of night shift security. This also results in female Primary Workers not having the opportunity to do as much of the programming and counselling parts of the job. Still others feel that banning males who are properly trained and screened from any functions that do not relate to direct privacy issues is unconstitutional and violates constitutional equality rights.

The final report will address these fundamental issues, and so these issues will be a central theme in our consultations in the next few months.

Having placed the Monitoring Project's review in both an international and constitutional context, the remainder of this section will analyze the information and views we obtained in the last year. The constitutional equality rights of women inmates, as well as, male and female staff will need to be considered, as will the views of all interested parties. We will be assessing policies and procedures designed to protect women's privacy and safety in the spirit of the international obligations undertaken by Canada, while at the same time ensure that staff are treated fairly.

11 Human Rights Watch (1996) All Too Familiar: Sexual Abuse of Women in U.S. State Prisons. pp. 1 - 2.