Six Degrees from Liberation: Legal Needs of Women in Criminal and Other Matters
The security classification level that federally sentenced men and women receive has significance beyond the obvious consequence of security placement. It affects their conditions of confinement, entitlement to goods, work placement, unescorted temporary absences, access to supervision level services, and likelihood and timing of release.
The population of federally sentenced women comprising Aboriginal women, women of colour, and an increasing number of women with mental health needs, is a diverse population. These women’s experiences and needs are different from men’s. On this point, Madame Justice Louise Arbour wrote:
… [women’s] crimes are different, their criminogenic factors are different, and their correctional needs for programs and services are different. Most importantly, the risks they pose to the public, as a group, are minimal and considerably different from the security risk posed by men.
When they are closely examined, it becomes apparent that the assessment tools used to classify federally sentenced women have been developed for and statistically validated on a male population. Not surprisingly, the need for gender-neutral, class-neutral and race-neutral criteria to classify women has been highlighted repeatedly in the literature. Simply put, the classification instrument is riddled with a range of normative standards that put women, particularly culturally, racially, and cognitively marginalized women, at a disadvantage. The result has been a significant "over-classification" of federally sentenced women, based on classification criteria that de-contextualize their offending and ignore systemic factors.
This is particularly true for Aboriginal women, who are disproportionately classified as maximum security. In her essay, "Aboriginal Women and Correctional Practice: Reflecting on the Task Force on Federally Sentenced Women," Professor Patricia Monture-Angus commented on a dimension of this systemic discrimination for federally sentenced Aboriginal women. She wrote:
Both dislocation and disconnection are the result of colonial experiences such as child welfare apprehensions, residential schools and registration systems established under the Indian Act. Dislocation and disconnection remain predominant experiences of those who live within correctional institutions in Canada. The refusal of Aboriginal women to trust the "helping" services of the prison becomes one more strike against them. They are then seen as unco-operative. They are kept at a high security classification and denied parole.
Several of the risk-management and risk-prediction criteria, such as employment status, a history of substance abuse, and community functioning, reveal a middle-class bias that presumes that employment is available for those who are motivated to work within their communities. However, as Monture-Angus points out, Aboriginal people do not typically belong to communities that are functional and healthy, but are in a state of dysfunction for which colonialism must take a large measure of responsibility. Using a normative social construct in this way also obscures rather than acknowledges the impact of colonialism on the ability of a community to be supportive and nurture its members.
In their report, Taking Risks: Incorporating Gender and Culture into the Classification and Assessment of Federally Sentenced Women, Kelly Hannah-Moffatt and Margaret Shaw concluded, "Given that Aboriginal women represent less than one percent of Canada’s population, the racism of the assessment and classification tools is clear." They wrote:
Many criteria in the Needs Identification Analysis target the disadvantage experienced by women prisoners as factors which increase their security classification with the result that the most disadvantaged federally sentenced women are the most likely to be subject to the more restrictive conditions of confinement. Restrictions based on disadvantage without proof that the proposed restrictions are necessary, contravene the equality provisions of the Charter.
Hannah-Moffatt and Shaw also found that many correctional staff who are responsible for administering the classification process have described its application to women as a subjective process, and have raised concerns that "cultural differences in attitudes, reactions, dialect and verbal exchange could all be used in discriminatory ways. For example, some Black women might be seen as manipulative or misunderstood, some Asian women as too submissive." Staff also noted that the financial problems that led women to participate in drug trafficking were not accounted for in the risk assessment.
The classification process reveals a range of systemic discriminations that can be challenged through the grievance process, as a breach of the Corrections and Conditional Release Act, through the process of habeas corpus, as a violation of human rights legislation, and as a violation of the Charter. It seems clear that legal advice is necessary in order to assist women to choose the appropriate avenue and, most importantly, legal representation is essential to challenge the individual as well as the systemic discrimination present in the classification designation.
Any woman who objects to her classification designation will require legal representation in order to challenge the decision. Typically, this decisionmaking procedure is challenged in court by way of an application for a writ of habeas corpus, a technical and legally complicated procedure.
Federally sentenced women – particularly vulnerable women, such as those with mental health needs – also need legal information in order to understand the implications of a security classification, and the legal avenues that are available to them, including litigation, a constitutional challenge and a human rights complaint.
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