An Institutional Suicide Machine: Discrimination Against Federally Sentenced Aboriginal Women in Canada

Abstract

On October 19, 2007, Ashley Smith, a nineteen-year-old Aboriginal woman from Moncton, New Brunswick, was found dead in her segregation cell at the Grand Valley Institution, a federal woman’s prison in Kitchener, Ontario. Smith spent the majority of her life in federal institutions across Canada, effectively cutting her off from her family and her community. During her incarceration, a prison guard was charged with assaulting Ms. Smith, she was forcibly strapped to a confinement chair, and she had her clothing taken away on multiple occasions, leaving her naked and cold. At the time of her death, Ashley Smith was isolated in segregation, with only an oversized security gown to wear and no mattress in her cell, forcing her to sleep on the concrete floor without a blanket. The treatment she experienced while in the custody of the Correctional Service of Canada (CSC) was inhumane. It was also illegal. This paper situates discriminatory treatment against federally sentenced Aboriginal women in Canada in the international legal context, arguing that the CSC’s treatment of Ms. Smith, and countless other Aboriginal women in federal prisons, amounts to an infringement of Canada’s obligations under the United Nations Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), and is therefore a violation of public international law. Despite numerous studies, inquiries, task force recommendations, and a domestic human rights complaint and resulting investigation into the treatment of Aboriginal women in custody, Canada (as represented by CSC) is failing to live up to its international legal commitments by continuing to mistreat federally sentenced Aboriginal women with relative impunity. The present inquiry draws upon existing research and factual reports to reveal the sexist, racist and neocolonial nature of the discrimination experienced by federally sentenced Aboriginal women and considers the possibility of employing CEDAW as a tool to draw international attention to discrimination against federally sentenced Aboriginal women in Canada.

Introduction

On October 19, 2007, Ashley Smith, a nineten-year-old Aboriginal woman from Moncton, New Brunswick, was found dead in her segregation cell at the Grand Valley Institution, a federal woman’s prison in Kitchener, Ontario.¹ Smith had spent “nearly a quarter of her life in prison . . . [having] been transferred through a series of federal institutions,” across Canada, effectively cutting her off from her family and her community.² During her incarceration, a prison guard was charged with assaulting Ms. Smith, she was forcibly strapped to a confinement chair, and she had her clothing taken away on multiple occasions, leaving her naked and cold. At the time of her death, Ashley Smith was isolated in segregation, with only an oversized security gown to wear and no mattress in her cell, forcing her to sleep on the concrete floor without a blanket.³ The treatment that she experienced while in the custody of the Correctional Service of Canada (CSC) was inhumane. It was also illegal.

This paper situates discriminatory treatment against federally sentenced⁴ Aboriginal⁵ women in Canada by CSC in the international legal context. I argue that CSC’s treatment of Ashley Smith, like that of countless other Aboriginal women in federal prisons, amounts to an infringement of Canada’s obligations under the United Nations (UN) Convention on the Elimination of All Forms of Discrimination Against Women (hereinafter CEDAW),⁶ and is therefore a violation of public international law.⁷ Despite numerous studies, inquiries, task force recommendations, and a domestic human rights complaint and resulting investigation into the treatment of Aboriginal women in custody, Canada, as represented by CSC, is failing to live up to its international legal commitments by continuing to mistreat federally sentenced Aboriginal women with relative impunity. CEDAW therefore has the potential to be a useful tool for drawing international attention to Canada’s shortcomings in its treatment of federally sentenced Aboriginal women, and may contribute to the beginnings of actual change in this area.

In advancing this argument, Part II of the paper provides some brief context by situating Aboriginal women within Canada’s colonial prison system. Part III then reviews Canada’s obligations as a signatory to CEDAW and identifies Articles 1, 2, and 3 as of particular importance in arguing for Aboriginal women’s right to be free from discriminatory treatment by CSC. In Part IV, I draw upon existing research and factual reports to reveal the sexist, racist nature of the discrimination experienced by federally sentenced Aboriginal women in three specific areas, and to highlight the ways in which this treatment violates CEDAW. Part V concludes with a cursory consideration of the likely utility of CEDAW as a mechanism for addressing discrimination against federally sentenced Aboriginal women in Canada by examining the possibility of issuing an international complaint based on Canada’s CEDAW violations in this area. At the outset of this work, I situate myself as a white woman with no experiential grounding in Aboriginality, and acknowledge that this is a limitation of my analysis.

Finally, by way of introduction, I note that while CEDAW is aimed primarily at eliminating discrimination against women on the basis of sex, “for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men,”⁸ it is both impossible and unrealistic to divorce the ground of sex from other grounds of oppression, including that based on race, class, sexual orientation, (dis)ability, language, and marital status, all of which inform the nature of discrimination that different women experience. Aboriginal women may reside at the nexus of any number of these identities; however, their experience is necessarily informed by both sex and race such that, like “[a]ll women of colour,” they live at locations characterized as “the dangerous intersections of gender and race.”⁹ This reality requires that the character of the discrimination faced by federally sentenced Aboriginal women be understood as the result of interlocking forms of domination, acknowledging “that each system of oppression relie[s] on the other to give it meaning, and that this interlocking effect [can] only be traced in historically specific ways.”¹⁰

Understanding systems of domination as interlocking and thereby as mutually constitutive illuminates “the complex ways in which they help to secure one another.”¹¹ In other words, the discrimination experienced by federally sentenced Aboriginal women cannot be defined as the result of an additive formula of “sex + race = double discrimination” or even “sex + race + criminality = triple discrimination.” Instead, the discrimination that is the subject of this paper is understood as a compound form of discrimination distinct in character from that which might be experienced on the grounds of sex or race alone. As an amalgam, such discrimination cannot necessarily be distilled to extract the discriminatory acts based the ground of sex from those undertaken on the ground of race, so that practically speaking, the individual effects of discrimination based on race and that based on sex often “cannot be distinguished in the examination of specific acts, policies or programs.”¹² The instances of discrimination experienced by federally sentenced Aboriginal women are wholly unique. While the analysis presented here focuses upon the ways in which discrimination against federally sentenced Aboriginal women violates CEDAW, an international instrument concerned with the elimination of sex-based discrimination, there is room within the CEDAW framework for the recognition of the myriad connections between sex and race-based discrimination and for claims to be brought on the basis of these and other interlocking forms of oppression that define different women’s experiences of discrimination. Importantly to this end, CEDAW’s Preamble notes, “the eradication of apartheid, all forms of racism, racial discrimination, colonialism, neo-colonialism, [and] aggression ... is essential to the full enjoyment of the rights of men and women.”¹³

Aboriginal Women, Colonialism And The Canadian Prison System

Federally Sentenced Aboriginal Women

Aboriginal women¹⁴ are grossly overrepresented in Canadian prisons, composing approximately one-third of the total population of federally sentenced women, though they represent less than 3 percent of the population of Canada.¹⁵ This disparity is “[n]ot only the most obvious layer of discrimination, but [also] the most frequently cited.”¹⁶ The overrepresentation of Aboriginal women and men in the Canadian criminal justice system is the result of a multitude of interrelated factors including the following: entrenched and systemic racism resulting in the overpolicing and overcharging of Aboriginal populations, uninformed and inadequate legal representation for Aboriginal offenders,¹⁷ and structural barriers including misunderstandings and misinterpretations by non-Aboriginal judges of the actions, reactions, and demeanor of Aboriginal people in the courtroom, which can negatively impact on their sentencing.¹⁸ Once incarcerated, Aboriginal women are 14 percent less likely to be released into the community on conditional release than non-Aboriginal women,¹⁹ are generally released later in their sentences than non-Aboriginal prisoners, and “often do not receive timely access to rehabilitative programming and services that would help them return to their community.”²⁰

These statistics speak largely for themselves. The overrepresentation of Aboriginal women and men in federal prisons has been rightly characterized as “indisputably the most egregious example of the racist legacy of colonization.”²¹ Indeed, the vestiges of colonialism that endure in Canada include both overt racism against Aboriginal persons and the systemic cultural, economic and geographical oppression that circumscribes the lives of Aboriginal people both in and outside of prison. Aboriginal women experience this oppression by virtue of both their race and gender as a result of the “gendered specificity of colonialism [which] is an essential component to understanding the present day situation of Aboriginal women in prison.”²² Gender and the legacy of colonialism combine to produce effects including the disproportionate impoverishment of Aboriginal women,²³ and a high likelihood that Aboriginal women will experience “violence, alcohol abuse, sexual assault during childhood, rape and other violence ... at the hands of men.”²⁴ While 68 percent of federally sentenced women report being physically abused, this figure jumps to 90 percent for Aboriginal women.²⁵ Many may be dealing with drug or alcohol addictions and physical or mental health concerns.²⁶ CSC describes the “average” federally sentenced Aboriginal woman in the following profile:

[She is] 27 years old, with a limited education (usually grade nine), is unemployed or under-employed, and the sole-support mother to two or three children. She is usually unemployed at the time of she is arrested. She has often left home at an early age to escape violence. She may be forced to sell her body because she needs money and is unable to obtain a job. She is likely to have been subjected to racism, stereotyping and discrimination because of her race and color. However, her experience on the streets becomes violent as she continues to experience sexual, emotional and physical abuse. She is likely to become involved in an abusive relationship.²⁷

These statistics and descriptors of federally sentenced Aboriginal women, themselves products of a colonial government, are indicative of “the utter totality of the experience of violence in Aboriginal women’s lives,” resulting in large part from “the devastation that colonization has wrought on Aboriginal peoples.”²⁸ The persistence of violence against Aboriginal women in Canadian prisons must therefore be understood as symptomatic of a much larger, deeply disturbing trend in Canadian society and in the Canadian legal system, that accepts as “normal” the systematic devaluation of Aboriginal women and continues to overtly ignore discrimination and violence perpetrated against them both in and out of prison.

The “Normalization”of Violence against Aboriginal Women

The Canadian criminal justice system is likely to be experienced by Aboriginal women as a foreign and inappropriate vehicle for the fulfillment of justice in their communities. Aboriginal “understandings of law, of courts, of police, of the judicial system, and of prisons are set by lifetimes defined by racism” and characterized by “institutional neglect,”²⁹ resulting in a “climate of distrust where Aboriginal people see this is not a system of justice, which equally represents them.”³⁰ The present-day criminal justice system is a continuation of the historical colonization of Aboriginal persons, perpetuated by contemporary “spatial strategies of containment. . . and incarceration,”³¹ such that the dehumanizing discrimination against Aboriginal women that occurs in the spaces of prison is not a unique phenomenon, but a modern-day example of a long history of colonial practices that have regarded, and continue to create and regard Aboriginal women’s bodies as “rapable and violable,”³² and invite actors to behave accordingly.³³

Patriarchy, misogyny, and racism are among the tools employed in the colonial project of maintaining the violability Aboriginal women, and indeed these trappings of Canada’s colonial hangover continue to characterize the institutional structure of our prisons, making it little wonder that misogyny and racism run rampant in the prison environment,³⁴ or that the race and gender values associated with patriarchy and racism operate to “deem certain bodies and subjects ... as undeserving of full personhood.”³⁵ Against this backdrop, federally sentenced Aboriginal women are “especially marked in the eyes of the administrations of the prisons where women do time and in the eyes of the staff who guard them.”³⁶ Within the particular colonial space of prison, Aboriginal women are confined, controlled, devalued and dehumanized on the basis of their womanhood and their Aboriginality together.

The dehumanizing of Aboriginal women is made possible by the internalization and normalization of this process within the prison institution and in Canadian society writ large. Spatial analysis reveals that raced and gendered bodies in degenerate spaces, like prisons, may “lose their entitlement to person-hood through a complex process in which the violence that is enacted [upon them] is naturalized.”³⁷ It is a vicious cycle: the normalizing of discriminatory practices results in the dehumanizing of Aboriginal women in prison spaces, and their de-humanization contributes to the willingness of CSC systems and staff to continue to discriminate against them with apparent indifference—if Aboriginal women do not “qualify” as human, “nobody” is being harmed. As “nobodies,” Aboriginal women are deemed valueless and are thus “rapeable,” perpetual victims, instead of being seen as rights-bearing citizens. Aboriginal women thereby occupy a dangerous location in federal prisons, constructed as both invincible—as “nonpersons” they do not suffer the injuries and harms of discrimination— and invisible—because as “nonpersons” they have no rights to infringe or enforce.

A further consequence of the widespread normalization of the dehumanizing of Aboriginal women is that the discrimination and violence they experience is deemed largely acceptable and inevitable, and is thereby not taken seriously by Canadian society or the Canadian government itself. The chronic, systemic construction of Aboriginal women as violable and unworthy of concern contributes to the relative impunity with which violence against them continues to occur in and out of prison spaces. This trend has been ably documented by organizations including Amnesty International, which, in its 2004 report, Stolen Sisters: A Human Rights Response to Discrimination and Violence Against Indigenous Women in Canada,³⁸ documents three decades-worth of stories of Aboriginal women and girls missing or murdered in Canada, and an alarming pattern of police and government disregard for these women and their cases.³⁹ Based on its research, Amnesty International concludes that in “every instance, Canadian authorities could and should have done more to ensure the safety of these women and girls.”⁴⁰ Similarly, the Native Women’s Association of Canada (NWAC) mounted its Sisters in Spirit campaign in 2005 in response to the mysterious deaths and disappearances of more than five hundred Aboriginal women in Canada and the resulting disregard of the Canadian state. NWAC’s main objective in launching this campaign was “to address violence against Aboriginal women, particularly racialized and/or sexualized violence, that is, violence perpetrated against Aboriginal women because of their gender and Aboriginal identity. This type of violence typically occurs in the public sphere, where societal indifference often leaves Aboriginal women at greater risk.”⁴¹

Despite what the deplorable CSC practice and the general lack of police and government concern with discrimination against federally sentenced Aboriginal women indicate, Aboriginal women in prison do, of course, possess human rights, the violations of which must not be trivialized “as either an insignificant infringement of rights, or as an infringement of the rights of people who do not deserve any better. When a right has been granted by law, it is no less important that such right be respected because the person entitled to it is a prisoner.”⁴² Aboriginal women’s rights, both within prison spaces and elsewhere, are embodied in international law in CEDAW.

The Convention On The Elimination Of All Forms Of Discrimination Against Women

CEDAW’S Objectives

CEDAW is “rooted in the broader goals of the United Nations: to reaffirm faith in fundamental human rights, in the dignity, value and worth of the human person, in the equal rights of men and women.”⁴³ The Convention was adopted by the United Nations General Assembly on December 18,1979,⁴⁴ and entered into force as an international treaty on September 3,1981 after the twentieth member state had ratified the document.⁴⁵ Consisting of a Preamble and thirty articles, CEDAW is often described as “an international bill of rights for women,”⁴⁶ providing an agenda for national action to guarantee the enjoyment of women’s rights and equality under three broad umbrellas: civil rights and the legal status of women;⁴⁷ reproductive rights;⁴⁸ and the impact of culture and tradition on gender relations and women’s enjoyment of their fundamental rights.⁴⁹

The CEDAW document recognizes that its ultimate goal of ensuring fundamental rights for women will only be accomplished by putting an end to discrimination based on sex in all spheres of life. In setting the tone guiding the interpretation of CEDAW’s operative articles, the Preamble explicitly acknowledges that “extensive discrimination against women continues to exist,” and emphasizes that such discrimination “violates the principles of equality of rights and respect for human dignity.”⁵⁰ In Article 1, CEDAW defines discrimination against women as:

... any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.⁵¹

Article 2 places responsibility on national governments of states parties to the Convention to “condemn discrimination against women in all its forms, [and] to pursue by all appropriate means and without delay a policy of eliminating discrimination against women...”.⁵² Governments must, under Article 2(d) of CEDAW “refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions . . . act in conformity with this obligation.” In accordance with Article 2(f), CEDAW signatories are required to take measures necessary to “modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women, “including the revocation of all national penal provisions which constitute discrimination against women,” as specified in Article 2(g).

Complementing the mandate of Article 2 to put an end to discrimination, Article 3 of CEDAW requires states parties to take a proactive approach to women’s rights by adopting “all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.”⁵³ Some of the “appropriate measures” anticipated by Articles 2 and 3 are enumerated in the CEDAW document and include the following: the incorporation of the principle of equality of men and women into national legal systems;⁵⁴ the establishment of tribunals and other public institutions to ensure the effective protection of women against discrimination;⁵⁵ and the adoption of temporary special measures aimed at “accelerating de facto equality between men and women.”⁵⁶ At least every four years, state parties must submit a national report to the UN Committee on the Elimination of Discrimination Against Women (the Committee),⁵⁷ demonstrating the measures they have adopted to give effect to the provisions of the Convention.⁵⁸

Canada and CEDAW

Canada was among the first countries to sign on to CEDAW on July 17, 1980, at the World Conference for the United Nations Decade for Women, and it ratified the Convention on December 10, 1981.⁵⁹ Like all states parties to the Convention, Canada is legally bound⁶⁰ to put CEDAW’s provisions, including Articles 1, 2, and 3, noted above, into practice by taking action required to eliminate all forms of discrimination against women, as well as adopting positive steps to ensure that women enjoy the conditions necessary for the enjoyment of their fundamental rights and freedoms. In addition to Canada’s general obligation to fulfill these requirements under CEDAW, CSC in particular has endorsed and made a specific commitment to adhering to all international human rights instruments to which Canada is a party, stating, “... any correctional authority should adhere to both binding and other international human rights instruments that have been approved by the state concerned before the international community. CSC should therefore consider itself bound by such instruments that have been endorsed by the Government of Canada.”⁶¹ Despite this lofty oratory, CSC’s policies and practices indicate that far from enforcing and upholding the values embodied in CEDAW, CSC is routinely responsible for subjecting federally sentenced Aboriginal women to systematic discrimination that violates their human rights—precisely the evil that CEDAW seeks to eliminate.

Discrimination Against Federally Sentenced Aboriginal Women In Violation Of Canada’s CEDAW Obligations

Numerous inquiries, investigations, research, and reports have documented and analyzed CSC policies and practices infringing the rights of federally sentenced women over the past two decades.⁶² While a full consideration of each of these important documents is beyond the scope of the present inquiry, these documents have, individually and taken together, unequivocally established that federally sentenced women are regularly subjected to discrimination that is “an amalgam of: stereotypical views of women; neglect; outright barbarism and well-meaning paternalism,”⁶³ and that such treatment is most certainly captured by CEDAW’s Article 1 definition of discrimination. The current research further demonstrates that Aboriginal women face compounded discrimination on the basis of their sex and their Aboriginality, in part a product of CSC’s ongoing “failure to rigorously consider the structure and impact of the [prison] system on Aboriginal women result[ing] in continued disadvantage and discrimination beyond the travesty of over-representation.”⁶⁴ Consistent among the findings of all existent reports and research is the conclusion that discrimination against federally sentenced Aboriginal women occurs at many levels of their prison experience, three of which I consider here: security classification policies and practices; discriminatory treatment based on race and gender stereotypes; and a lack of gender-sensitive and culturally appropriate programming. Interlocking forms of sex and gender discrimination in each of these areas infringes at least one or all of Articles 1,2, and 3 of CEDAW.

Security Classification Policies

The overrepresentation of Aboriginal women in the federal prison system is most pronounced among prisoners classified as maximum security, where Aboriginal women represent approximately 50 percent of the inmate population.⁶⁵ This fact is neither accidental nor incidental; the Correctional Investigator recently concluded that CSC “routinely classifies First Nations, Métis and Inuit women as higher security risks than non-Aboriginal women in prison.”⁶⁶ Describing their prison experiences, Lana Fox and Fran Sugar state, “security classifications ... were applied to us because as Native women we were seen as a collective, as a war party that posed a risk to the good order of the institution.”⁶⁷ Reports indicate that an Aboriginal woman is likely to be segregated more often during her prison sentence and for longer periods of time than a non-Aboriginal woman,⁶⁸ often with no idea how long she will be there, and no assurances that her needs will be addressed. Justice Louise Arbour’s 1996 investigation of Kingston’s now-inoperative Prison for Women led her to conclude “that prolonged segregation is a devastating experience, particularly when its duration is unknown at the outset and when the inmate feels that she has little control over it.”⁶⁹

In assigning security classifications to inmates, CSC evaluates women with the same assessment tool designed for men. The security evaluation includes an assessment of the level of risk posed to public safety if a given inmate were to escape, despite the fact that generally speaking women pose a near-negligible threat of reoffending, “suggesting that there is actually no need for an assessment of women based on [this] risk.”⁷⁰ An inmate’s social history is also factored into the security classification equation by way of a so-called “needs assessment,” which considers factors related to education and employment, social interaction, marital or family status, history as a victim of violence, sexual habits or preferences, addictions, physical or mental illnesses, disabilities and attitude.⁷¹ Put crudely, a low level of education or employment training combined with past experiences of violence, an addiction, and a non-heterosexual or nonmonogamous sexual history are likely to classify a woman as having “high needs,” and “the greater number of identified needs, the higher the resulting security classification.”⁷²

As outlined briefly in Part II, above, Aboriginal women in Canadian society are disproportionately impoverished, unemployed, and subject to violence at the hands of others, increasing the likelihood that they will be categorized as “high needs” and thereby subject to an increased security classification. Instead of “viewing the needs of these women as critical issues to be addressed, they are seen [by CSC] only as risks leading to more restrictive conditions for confinement.”⁷³ The system of security classification used by CSC is sexist, racist, classist, ableist, and heterosexist, and punishes women who are most disadvantaged, regardless of crime committed, by overclassifying them and subjecting them to overly secure facilities, including segregation.⁷⁴ The “one-size-fits-all” classification system employed by CSC denies the complexity of Aboriginal women’s lives by attempting to dissect them into discrete categories for the purposes of “needs classification,” and problematically rejects any kind of contextual consideration of the impact that the systemic marginalization experienced by Aboriginal women in Canadian society is likely to have on their social histories.

CSC’s security classification system, while perhaps appearing “neutral” on the books, amounts in its effect to discrimination under Article 1 of CEDAW as a “distinction ... or restriction made [in part] on the basis of sex which has the effect... of impairing ... the .. . enjoyment of exercise by women ... of human rights and fundamental freedoms.”⁷⁵ CSC’s discriminatory security classification policy infringes subsections (d) and (f) of Article 2 of CEDAW, which requires state parties to refrain from engaging in any kind of discrimination and to ensure that public authorities and institutions do the same, as well as taking steps to “abolish existing .. . regulations, customs and practices which constitute discrimination against women.”⁷⁶

Treatment of Aboriginal Inmates Based on Stereotypes

Studies and reports to date highlight the cultural inappropriateness of incarceration for Aboriginal women, as confinement “replicates the control and suppression of Aboriginal people by white colonizers from the time of first contact.”⁷⁷ Incarceration subjects Aboriginal women to what are inherently colonial encounters with overwhelmingly non-Aboriginal CSC staff that all too often “offer more white authority that is sexist, racist and violent.”⁷⁸ Studies chronicle a disturbing pattern of federally sentenced Aboriginal women being treated with prejudice and subjected to overt discrimination by CSC staff based on converging sex and race stereotypes and perceptions. One psychologist working within the prison system referred to federally sentenced Aboriginal Women as “animals,”⁷⁹ and incarcerated women report being referred to by CSC staff member as “squaws,” invoking both their Aboriginality and sexuality in a dangerous way.⁸⁰ Treating “Native women as easy or drunken squaws ... feed[s] negative stereotypes that will further enable individuals to abuse Native females,”⁸¹ contributing to the cycle of dehumanization and discrimination against Aboriginal women outlined above. Indeed, derogatory stereotypes breed the conditions within which further violence against Aboriginal women in federal prisons may occur, including physical and sexual harassment and abuse by CSC staff, such as that suffered by Ashley Smith. Many federally sentenced Aboriginal women have similar stories of horrific abuse:

They stripped me down on 8 different occasions. The screws [guards] would restrain me and cut off all my clothes with scissors. Each hand was cuffed to the bed, each foot handcuffed to the bed with my legs spread wide open facing where the screw was sitting. . . . That still bothers me. I don’t like to show my body. Mr. (guard) knows where every birth mark on my body is.⁸²

Evidence indicates that from the outset of their incarceration periods, federally sentenced Aboriginal women are likely to experience harsher treatment at the hands of CSC staff than their non-Aboriginal counterparts.⁸³ This trend should be understood as rooted in violent stereotypes about Aboriginal persons and women in conflict with the law.⁸⁴ As one study reports, “to be a woman and to be seen as violent” is to defy common stereotypes and be “automatically feared, and labelled as in need of special handling.”⁸⁵ The use of this and related stereotypes further contributes to the disproportionate overclassification of women as maximum security prisoners, where they are more likely to be subject to the trauma of indignities like strip searches or body cavity searches than their lower-security counterparts. Several studies document strip searches of women prisoners in times and manners not permitted by law, including strip searches of female prisoners by male CSC staff.⁸⁶

It is readily apparent that the treatment of Aboriginal women prisoners based on stereotypes by CSC qualifies as discrimination under Article 1 of CEDAW and violates the principles of equality and the enjoyment of human rights enshrined in Articles 2 and 3. The fact that such discriminatory behavior takes place at the hands of CSC staff members in a government institution is indefensible, and amounts to a blatant violation of Article 2(e) of CEDAW, which requires Canada to “take all appropriate measures to eliminate discrimination against by women by any person, organization or enterprise.”⁸⁷ Far from guaranteeing women “the exercise and enjoyment of human rights and fundamental freedoms,” ongoing harassment and abuse by prison staff based on stereotypes about Aboriginal women violates their human rights, endangers their physical and emotional safety, and demeans their basic human dignity.⁸⁸

Lack of Appropriate Prison Programming

Respect for the dignity of federally sentenced Aboriginal women is further debased by the lack of appropriate programming designed and delivered in ways that meet the unique needs of incarcerated Aboriginal women. This problem has been extensively documented in studies and reports to date, and may be the most readily addressable issue among the many plaguing CSC’s treatment of federally sentenced Aboriginal women.⁸⁹ Accounts from federally sentenced Aboriginal women confirm that the services available to assist them in healing and rehabilitation, “are delivered in ways that are culturally inappropriate to [Aboriginal women] as women and as Aboriginal people.”⁹⁰ Responding to this reality, many reports express concern about the “adaptation” of services and programs designed for male inmates and non-Aboriginal women and then applied to federally sentenced Aboriginal women, including, for example drug and alcohol abuse rehabilitation programs delivered by CSC staff with little expertise in rehabilitating women generally, and none working with Aboriginal women in particular.⁹¹ This trend in “adapting” services is particularly problematic when delivering psychological and physical health care to Aboriginal women on intimate issues like sexual assault. When such services are provided to Aboriginal women only by white male physicians, psychiatrists, and psychologists, who symbolize the “worst experiences” of Aboriginal women’s pasts, these women cannot, and should not be expected to “surmount the barriers of mistrust that racism has built” to access the services they require for rehabilitation and to ensure their well-being.⁹²

Aboriginal women in federal institutions must have access to programs created and facilitated by people from their cultural communities. CSC has attempted to provide some limited services specifically for Aboriginal women prisoners but in doing so tends to problematically lump all Aboriginal women together.⁹³ Women from different backgrounds require culturally specific programming and access to Elders from their own nations and communities. If the specific nations to which Aboriginal women belong are not taken into account in assessing the programs and services that are required, “Elder services may not reflect accurately the needs of the women. Blackfoot teaching delivered to women housed in Cree territory may not be an appropriate choice.”⁹⁴ Providing access to culturally appropriate services tailored to the needs of a particular woman’s nation-based identity is particularly important when one considers that federally sentenced Aboriginal women are likely to be geographically removed from their families and communities because there are so few options in terms of facilities for their imprisonment.⁹⁵ Some of the most critical services for imprisoned Aboriginal women include access to sweat lodges; Aboriginal, female therapists and counsellors for survivors of sexual abuse; and access to cultural and spiritual items while in prison. Existing reports and studies also identify a uniform need for more contact with nation-appropriate Elders as imperative to the rehabilitation of Aboriginal women.⁹⁶

CSC must accommodate the individual needs of the individual Aboriginal women incarcerated in Canadian prisons. Discrimination in access to resources for rehabilitation and health leads to the further marginalization of Aboriginal women within the prison system because inmate participation in rehabilitation programs increases the likelihood of pre-sentence release. The inability of Aboriginal women to access and participate in programs that meet their needs is seen by the CSC as a “strike” against them, one that reduces their chances of early release. This situation amounts to systemic discrimination against women in direct violation of Article 2(g) of CEDAW. Like the examples presented above, discrimination against federally sentenced Aboriginal women in terms of service provision is a further violation of Articles 2 and 3 of CEDAW, and, again, is particularly egregious because it continues to occur at the hands of a government body despite a plethora of accumulated evidence demonstrating the existence of a problem in the CSC system, and numerous recommendations calling for change. The CSC’s continued failure to effect programming changes to benefit Aboriginal women serves to “reinforce cultural, racial and gendered barriers, which are causally related to over-representation”⁹⁷ in Canadian prisons and which further entrench the devaluation of Aboriginal women in prisons and in Canadian society at large.

Taking Canada To Task On Its CEDAW Violations

The issues addressed here are certainly not exhaustive of the variety of forms of discrimination against federally sentenced Aboriginal women by the CSC, nor the host of ways that such treatment violates the principles of CEDAW. The three examples presented in the previous section are, however, broadly illustrative of Canada’s failure to bring its correctional practices in line with its international commitments under CEDAW in ways that particularly disadvantage federally sentenced Aboriginal women. As catalogued in part above,⁹⁸ there have been numerous task force investigations, research reports, and commissions of inquiry that have identified, assessed, and analyzed the intricacies of the problem of discrimination against federally sentenced women in general, and Aboriginal women in particular, and have presented comprehensive recommendations for change. Without wide-ranging implementation, however, these recommendations are of little practical import—needless to say, Ashley Smith did not benefit from the wealth of largely unexecuted documentation on discrimination against federally sentenced Aboriginal women. The persistence of discriminatory practices by CSC in the face of scrutiny generated by in-depth research and investigations proves just how deeply embedded discriminatory policies and practices are in the prison system. The ongoing nature of discrimination against federally sentenced Aboriinal women is further attributable to the apparent unwillingness of the Canadian government to provide leadership in this area by ordering the comprehensive institutional changes required to combat discrimination be undertaken by CSC.

The obvious and necessary question that follows from the discussion to this point is, quite simply: what to do? The ultimate goal is clear: it is incumbent upon Canada to demand that CSC halt discrimination against Aboriginal women in its custody and ensure that the basic human rights of every incarcerated individual are honored at all times. More bureaucratic studies and analyses of the problem are unnecessary, as existing recommendations for change are myriad and generally coincide in both the concerns raised and their general approaches to the problem.⁹⁹ While these recommendations may not be perfect, nor present an absolute solution to the problem, if implemented in full, they would doubtless contribute to affecting at least some of the necessary overhaul of CSC practices and procedures, and to improving conditions for federally sentenced Aboriginal women. The “what next?,” then, lies neither in furthering our understanding of the problem of discrimination against federally sentenced Aboriginal women, nor in the formulation of mechanisms to tackle the problem, but in the implementation of practical change in the Canadian prison system. In light of the marked lack of political willingness by the Canadian government to confront and take on this challenge, it is necessary to consider strategies to motivate government action on the issue of discrimination against federally sentenced Aboriginal women. One strategy could be to direct international attention to Canada’s breaches of its international obligations under CEDAW though a complaint launched under a new mechanism in the CEDAW Optional Protocol.

The CEDAW Optional Protocol

On October 18, 2002, two decades after ratifying CEDAW, Canada acceded to the Convention’s Optional Protocol,¹⁰⁰ which provides two new mechanisms to enhance oversight of compliance with CEDAW: a communications procedure allowing individual women or groups of women to submit, directly or through a representative, claims of rights violations under CEDAW,¹⁰¹ and an inquiry procedure through which the CEDAW Committee may independently launch an investigation into grave or systemic violations by states parties of rights guaranteed under the Convention.¹⁰² The communications procedure provides a possible new avenue for pursuing a formal complaint to the CEDAW Committee highlighting the ways in which Canada’s treatment of federally sentenced Aboriginal women amounts to multiple breaches of its CEDAW obligations, documenting the Canadian government’s ongoing failure to comprehensively address the problem as a further marginalization of the rights guaranteed by CEDAW, and calling for a remedy that might include, for example, the taking of immediate action by the Canadian government and CSC to implement the recommendations put forward by previous inquiries and investigations into the treatment of federally sentenced Aboriginal women.

Complaint mechanisms such as the Optional Protocol under international human rights instruments provide a valuable means of directing international attention to a given issue, and such international scrutiny can serve as the “spark” required to initiate change at the national level. For example, in 1977 Canadian Sandra Lovelace, a Maliseet woman from the Tobique Reserve in New Brunswick, initiated a complaint¹⁰³ to the UN Human Rights Committee, constituted under the International Covenant on Civil and Political Rights (ICCPR).¹⁰⁴ Her complaint alleged that her rights¹⁰⁵ under the ICCPR had been violated by section 12(1)(b) of Canada’s Indian Act,¹⁰⁶ in accordance with which Ms. Lovelace had lost her “Indian” status and associated rights upon her marriage to a non-Aboriginal man.¹⁰⁷ She claimed that Canada’s Indian Act violated her rights by denying her Indian status and the right to be part of her community and culture. Like the CEDAW Committee, the Human Rights Committee is charged with the responsibility of considering individual complaints of alleged violations of the ICCPR and, after assessing Ms. Lovelace’s claim, the Committee concluded in 1981 that the “the communication of Sandra Lovelace disclosed that Canada had breached the terms of the Covenant.”¹⁰⁸ In deciding in her favor, the Committee found that the Indian Act contravened Article 27 of the ICCPR, which states, “in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”¹⁰⁹ The Lovelace case generated interest both in Canadian society and in the international arena, and following its success, the Canadian government in 1985 repealed section 12(1)(b)¹¹⁰ and reinstated¹¹¹ the Indian status and associated rights of Aboriginal women and their children.¹¹²

Sandra Lovelace’s successful complaint to the UN Human Rights Committee of the ICCPR and the subsequent amendments to the Indian Act adopted by the Canadian government provide an important precedent for assessing the possible impact that a complaint to the CEDAW Committee under the Optional Protocol could have in increasing awareness about the issue of discrimination against federally sentenced Aboriginal women and igniting the beginnings of change in this area.¹¹³ It is notable that Lovelace’s case was one of many initiatives undertaken during decades of legal and political struggle and activism against the Indian Act,¹¹⁴ all of which helped to establish the foundation for the legislative amendment to the Indian Act that followed her complaint. Similarly, there has been important groundwork laid on the issue of discrimination against federally sentenced Aboriginal women, including, for instance, the 2003 human rights complaint by the Canadian Association of Elizabeth Fry Societies (CAEFS), on the treatment of federally sentenced women at the hands of the CSC, and the subsequent investigation and report by the CHRC.¹¹⁵ In 2002, on the occasion of the CEDAW Committee’s review of Canada’s fifth compliance report,¹¹⁶ the Canadian Feminist Alliance for International Action (FAFIA) submitted an alternative report to the CEDAW Committee entitled Canada’s Failure to Act: Women’s Inequality Deepens,¹¹⁷ demonstrating “that many laws, policies and programs necessary to ensure women’s inequality have not been implemented, or alternately, have been eliminated.”¹¹⁸ The FAFIA report included specific reference to CSC’s treatment of federally sentenced Aboriginal women.¹¹⁹ Following its assessment of Canada’s official fifth report, the CEDAW Committee reprimanded Canada for its failure to address the “persistent systematic discrimination faced by aboriginal women in all aspects of their lives.”¹²⁰ These and other initiatives have firmly established the existence of the problem of discrimination against Aboriginal women in Canada, and would provide strong support for a complaint launched pursuant to the CEDAW Optional Protocol.

Is CEDAW Enough?

Sandra Lovelace’s case demonstrates the potential that an international instrument like CEDAW represents as one possible avenue through which Canada’s failure to halt discrimination against federally sentenced Aboriginal women could be brought to light and condemned on the international stage. CEDAW is not, however, a panacea for the complex web of factors that create and sustain discrimination against Aboriginal women both in and out of prison. While it is often championed as the “gold standard” in women’s rights, it is worthwhile to question the principles and presumptions underpinning CEDAW itself, as our “ability to articulate a vision of equality that resonates domestically and internationally to enable full participation and membership of citizens in all societies is particularly pressing in our increasingly interconnected global community.”¹²¹ In light of these considerations, we must then consider whether CEDAW is, in fact, an appropriate tool for addressing discrimination against federally sentenced Aboriginal women.

The first issue that arises in this consideration is whether CEDAW’s overarching objective—equality between men and women—is the kind of equality that we ultimately desire.¹²² The language of CEDAW calls not for women’s equality in its own right, but for women’s equality with men, invoking a comparative approach between men and women by requiring that women be treated the same as men.¹²³ This approach is problematic in that it establishes men as the “norm” and, by requiring simply that women be treated the same as men, relies on a formalistic vision of equality that avoids recognition of the fact that women’s lived realities differ from those of men and are uniquely defined, in part, by their gender. Substantive equality for women requires more than simply gender parity with men and must be protected and promoted in its own right.

CEDAW’s “women = men” approach to equality warrants further critique when one considers that substantive equality for women ultimately calls for systemic change in societies around the world, a goal that CEDAW fails to envisage in the language of its text. By calling only for the realization of formal equality between men and women within the existing confines of our societies, CEDAW fails to “challenge privileged understandings of the world and privileged players’ understandings of themselves.”¹²⁴ CEDAW thereby permits the existing structures of our societies and institutions—and the prevailing norms of gender, race, class, (dis)ability, and sexuality that create and sustain them—to remain the same. It fails to acknowledge that the social, political, economic, and legal systems within which men and women exist are themselves patriarchal, colonial creations that inherently and inevitably disadvantage nondominant groups. Is it possible to truly eradicate sex discrimination within a patriarchal framework? To eliminate racism in a neocolonial society? The failure to recognize or address these questions is a serious limitation of CEDAW and restricts its utility as a tool with which to advocate for fundamental, systemic change.

Finally, CEDAW does little to acknowledge the diversity of interests and needs among different women, and thereby falls prey to the problems of essentialism. At least in terms of its technical language, CEDAW may be poorly equipped to recognize and address the interlocking forms of oppression that create and inform discrimination on the ground of gender, including race, class, disability, and sexual orientation. This is particularly troubling in light of the topic under consideration here. Given that the focus of CEDAW is on women’s rights, recourse to this tool in combating discrimination against federally sentenced Aboriginal women may inappropriately risk marginalizing Aboriginal identities for the sake of women’s rights, such that Aboriginal specificities become lost in the process of a CEDAW complaint.

These limitations beg the question of whether CEDAW is in fact the proper tool with which to advance a complaint on discrimination against federally sentenced Aboriginal women in Canada. Ultimately, the answer to this question lies outside the margins of this or any other research-based endeavor, and lies only with the opinions and perspectives of federally sentenced Aboriginal women themselves. In assessing the suitability of CEDAW as an instrument for fighting for the rights of federally sentenced Aboriginal women, the answer will only come from “listen[ing] seriously to the concerns, priorities, and experiences expressed by [Aboriginal] communities,”¹²⁵ and working cooperatively with them to effect the changes they require. The starting point for action must be “not in abstract discussions but in the experiences of the women themselves,”¹²⁶ so that before any action under CEDAW is undertaken, like that contemplated here, federally sentenced Aboriginal women must decide whether a CEDAW complaint reflects their perspectives, wishes, and choices.

As such, the present inquiry maintains first and foremost that discrimination against federally sentenced Aboriginal women violates CEDAW in multiple ways, but certainly does not advance the proposition that CEDAW is the quintessential, preferable, or one-and-only instrument for dealing with the problem of discrimination against federally sentenced Aboriginal women. It is simply my contention that CEDAW could be considered as a possible measure contributing to the eradication of discrimination against Aboriginal women in Canadian prisons, subject to the needs and desires expressed by federally sentenced Aboriginal women themselves. CEDAW is certainly not the only tool that could or should be employed to this end,¹²⁷ nor is it necessarily the “best” tool, particularly in light of its failure to deal with the interlocking forms of oppression that federally sentenced Aboriginal women face.¹²⁸ It is simply one option that might contribute to the pursuit of the goal of ending discriminatory practices by CSC against federally sentenced Aboriginal women.

Conclusion

Some have characterized Ashley Smith’s treatment while in the custody of CSC as creating “what amounts to an institutional suicide machine.”¹²⁹ The racist, sexist, and ultimately illegal discrimination that characterizes the CSC’s treatment of Aboriginal women is a stark violation of Canada’s international obligations under CEDAW. In light of the foregoing, it is particularly ironic that Canada’s CEDAW commitments have helped the country develop a reputation in the international community as a world leader in women’s human rights.¹³⁰ While the Canadian government establishes itself internationally as a bastion for women’s rights, its own policies and practices at home continue to expose women to discriminatory treatment with consequences that, as in the case of Ashley Smith, include death. Quite simply, the evidence indicates that Canada does not take the treatment of Aboriginal women, in prison and elsewhere, seriously, amounting to a devastating national failure. In light of the persistent refusal of the Canadian government to take steps necessary to halt discrimination against federally sentenced Aboriginal women, this paper has argued that the CEDAW framework represents one possible route through which the government’s failure to act could be exposed to the international community, potentially instigating the beginnings of real change.

Discrimination against Aboriginal women in federal prisons is nothing short of a national crisis that calls for immediate, extraordinary action. It is impossible for the Canadian government to continue to deny or ignore that discrimination against federally sentenced Aboriginal by CSC systems and staff is a grave problem, particularly in the wake of Ashley Smith’s death, nor can the government plead ignorance or uncertainty in how to address the problem in light of the multitude of studies and recommendations that exist. Ashley Smith is not the first, and is unlikely to be the last casualty of Canada’s colonial prison machine,¹³¹ and her story demands that we ask both what is wrong with our prison system,¹³² and, perhaps more fundamentally, what is wrong with ourselves? Why is there no public outrage? Dare we consider how the response might be different if the victims of the CSC’s discrimination were white women or white men? While CEDAW may not provide a full or final answer, it should be regarded as one possible course of action in the fight to end the inhumane treatment of federally sentenced Aboriginal women at the hands of CSC—a fight that warrants and requires the deployment all of the legal, political and social weapons we can muster.