November 16, 2021
Presentation to the Criminal Law Association of the University of Ottawa
Office of the Correctional Investigator Role and Mandate
- Ombudsman for federally sentenced persons.
- Independent oversight of federal corrections.
- Conducts investigations into the problems of offenders related to “decisions, recommendations, acts or omissions” of the Correctional Service of Canada.
- Focus is on compliance, fairness and legality.
Gender Diversity in Federal Corrections - Pre-Reform Landscape -
- Federal penitentiaries are organized as sex-segregated facilities.
- Gender diverse persons in federal prisons were often forced into segregation or hiding out of fear for their safety.
- Those who “came out” were often pathologized, managed consistent with a diagnosis of Gender Dysphoria (defined as “distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth.”)
- As a result of human rights complaints, policy exceptions with respect to cell placement, strip searches, clothing, etc. were sometimes made on a case-by-case basis, though “pre-operative” persons were still held in institutions according to their biological sex.
Public Forum, January 12, 2017
Trudeau's commitment comes just days after CSC released its new policy directive on trans inmates, which confirms the previous policy that bases placement on birth sex rather than gender identity.
Policy: Gender Considerations in Federal Corrections
- Bill C-16 (June 2017) amends the Canadian Human Rights Act to add “gender identity or expression” as prohibited grounds of discrimination
- In December 2017, CSC aligns operations and policy (“gender considerations”) with the revised Act
- In August 2021, CSC posts Gender Diverse Offenders: A Decision-Making Guide on its internal website and creates an internal Gender Considerations Secretariat
- A stand-alone Commissioner’s Directive on Gender Diversity still “under development”
Individualized Protocols for Gender Diverse Persons
A gender diverse person in federal custody can choose to:
- be placed in an institution that reflects their gender identity (subject to “overriding” health or security concerns)
- be called by their chosen name and preferred pronoun, such as “he”, “she” or “they”
- keep their gender identity confidential (only shared with staff directly involved in their case)
- wear clothing and have personal effects that suit their gender identity or expression
- have strip and frisk searches and urinalysis testing conducted by a male or a female employee
- 2015-16 Annual Report recommends that CSC update its gender dysphoria policy and permit: a) penitentiary placements based on gender identity and b) the ‘real life’ experience living as a gender diverse person should include time spent incarcerated.
- 2016-17 Annual Report covers CSC’s policy reversal following the Prime Minister’s promise to allow gender diverse persons to serve their sentence in a facility that accords to their gender identity.
- 2018-2019 Annual Report includes analysis of the impact of gender identity and expression in women’s corrections.
- In 2018, 52 incarcerated individuals had a “gender considerations” flag on file.
- Today, there are 93 persons in federal prisons with an active gender considerations need/flag. Most are residing in male facilities.
Sexual Coercion and Violence
(Findings concerning LGBTQ+)
- In 2019-2020, OCI conducted a national-level investigation into sexual coercion and violence in federal corrections.
- We found that individuals from the LGBTQ+ community are disproportionately represented as victims of violent and/or sexualized abuse, harassment, bullying, assault and exploitation.
- The response of CSC and the government to our recommendations was disappointing.
- CSC has no strategy for protecting vulnerable groups/persons disproportionately victimized by sexual abuse.
Other Areas of Concern
- Toxic homophobia, transphobia and masculinity in corrections
- There is no reliable way of collecting/tracking data on LGTBQ+ individuals in federal corrections
- Many gender-diverse inmates do not want to transfer or reside in a facility conforming to their gender identity/expression
- Binary risk assessment and classification tools raise questions regarding how assumptions about safety, risk and dangerousness, based on physical capabilities of biological men and women, play a role in decisions on placements and transfers of gender-diverse individuals
- The duty to accommodate relies on the “hardship” test; CSC seems to interpret undue hardship broadly as “overriding health or security concerns”
- Some women inmates, staff, media and advocates have expressed safety concerns about gender diverse persons residing in women’s institutions
- Promulgate a Commissioner’s Directive that deals specifically with gender diversity
- Engage outside experts to enhance awareness, staff training and understanding of LGBTQ+ needs, rights and practices in federal corrections and combat homophobia/transphobia in correctional settings
- Consult with external experts in making psychological risk assessments and include their input in the decision-making process, for example multidisciplinary case conferences
- Instil a culture of equity, safety and inclusion for staff and inmates alike
- Create safe, confidential disclosure and recourse mechanisms for gender-diverse persons
- Define the expression “overriding health or security concerns”
- Review and validate actuarial tools and use them with gender-diverse persons