The issues facing women in prison in Canada, including their offending patterns, vulnerabilities and needs mirror those faced by women in prison in the UK. Female offenders from indigenous communities are significantly over-represented in the prison system, making up 42% of the total female prison population. Women from indigenous communities experience additional vulnerabilities.
The prison system in Canada is split between the federal and the provincial systems. The federal system is for prisoners serving sentences of more than two years and typically those who have committed more serious offences. The provincial system is for those serving sentences of a two years less one day, or shorter, together with those held on remand.
The most recently available data indicate that there are 693 female offenders in the federal prison system representing 6% of the total federal prison population.
The total number of female offenders in the provincial prison system is around 6,000, again representing around 5% of the total prison population.
The law on gender recognition
There are two main routes to changing one's legal gender in Canada: the Federal route and the Provincial/Territorial.
The Federal Route:
Individuals can apply to Immigration Refugees and Citizenship Canada using form CIT 0404: Request for a Change of Sex or Gender Identifier.
Once the person's gender is changed with IRCC, the agency will issue a Verification of Status annotated with the person's change of name (if any) and the new gender marker. Minors may also apply for a change of sex/gender with parental consent.
The Provincial Route:
Procedure varies between Provinces. There is no requirement for surgery, although a medical report stating that the applicant’s gender identity does not correspond to that listed on the birth certificate may be required. The applicant must state that they have assumed, identify with and intend to maintain the gender identity that corresponds with the change requested. In some provinces minors may also apply with parental consent.
Gender Identity as a Protected Characteristic
Gender identity is a protected ground in human rights legislation federally and in most, if not all, provinces and territories. For example, the Human Rights Code (Ontario) states:
Every person has a right to equal treatment with respect to services, good, and facilities, without discrimination because of race, ancestry, place of origin, color, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
Gender identity was added to the Canadian Human Rights Act as prohibited grounds for discrimination and to the Criminal Code in two sections, the first dealing with hate speech and hate incitement, and the second regarding sentencing for hate crimes via Bill C-16, which passed in June 2017.
The primary approach adopted by most agencies and institutions is admission on the basis of self-ID reflecting a widespread belief that self-ID is a protected ground in federal and provincial law. The lack of clear definition of ‘gender identity’ in law does nothing to discourage this belief. As a result, trans-inclusive policies in relation to single-sex spaces and services are commonplace.
Case law on admission to single-sex spaces is still relatively undeveloped with the result that there is little to refer to concerning the actual legal obligations in respect of single-sex services and spaces. A notable exception to this is the legal action brought against Vancouver Rape Relief. In 2002 a human rights complaint was brought against Vancouver Rape Relief by Nixon, which Vancouver Rape Relief won on appeal because of an exception built into British Columbia’s human rights legislation which the court read as protecting the right not to associate where the service was directed at a protected group, in this case women. However this exception is unique to British Columbia and cannot be relied upon either federally or in different provinces.
Prisons policy and practice
The current policy for transgender prisoners can be found at https://www.csc-scc.gc.ca/lois-et-reglements/584-pb-en.shtml
As with other agencies and institutions, the Correctional Service of Canada (CSC) operates on the basis of self-ID. Although safety and security criteria are taken into consideration, no consideration is given to anatomy or whether the applicant has gone through the legal process of changing gender. Strip-searching is also conducted on the basis of self-ID with males able to request that only female officers are involved.
CSC has a duty to accommodate based on gender identity or expression, regardless of the person’s anatomy (i.e. sex) or the gender marker on identification documents. This includes placing offenders according to their gender identity in a men’s or women’s institution, Community Correctional Centre or Community-Based Residential Facility, if that is their preference, unless there are overriding health or safety concerns which cannot be resolved. Offenders may also choose whether strip and frisk searches and urinalysis testing are conducted by a male or a female staff member. As well, CSC staff must use offenders’ preferred name and pronoun in oral interaction and written documentation.
In practice, considerations of the safety of female prisoners rarely influence a decision to house a male in the female estate. The CSC does not take into account the reasons for or duration of ‘transition’. This leaves the system wide open to males making applications to the female estate for purely nefarious purposes.
The CSC is responsible for collecting data on the prison population. Official data on the number of males held in the female prison estate is patchy and unreliable. An Access to Information and Privacy Request asking for this data can be made.
Research undertaken by our colleagues in Canada suggests that there are at least 14 males in women’s prisons within the federal system. The number of males held in women’s prisons within the provincial system is not known. According to the Office of the Correctional Investigator, there were around 52 prisoners with gender considerations in March 2018. Most were classified as medium-security (67%), high risk (65%), and low reintegration potential (63%). Nearly two-thirds were held in the male estate.
Data provided by the Ministry of Justice indicates that In the England and Wales a high proportion of male offenders identifying as women have been convicted of sexual offences. We see a similar pattern in Canada. According to the CSC Deputy Commissioner for Women 50% of transfer requests in 2019 came from men convicted of sexual crimes against women and girls. There is no requirement for ‘reassignment’ surgery in order to obtain legal change of gender. There is no requirement for either surgery or hormone treatment in order to transfer to the female estate. This is consistent with the reports from women in prison that the male offenders they are imprisoned with still have fully-functioning and unaltered male bodies.
Steven Lawrence Mehlenbacher has an extensive history of offending including 16 convictions for bank robbery. Most recently he was serving an aggregate sentence of 14 years and 3 days. He is currently on release at a halfway house in Quebec. He was originally imprisoned in the male estate, including at Mountain Institute in British Columbia. Whilst in prison, he ‘transitioned’ in 2018 and was transferred to the female estate at Edmonton Institution for Women and was then moved in around May 2019 to Grand Valley Institute for Women.
GVI is an open campus prison consisting of residential-style small group accommodation houses for minimum and medium-security inmates. There is also a secure unit for maximum-security prisoners. There, Mehlenbacher was able to sexually harass the women he was imprisoned with and engage in sexual exhibitionism. It also appears that three women were required to take the morning-after pill, having participated in sexual activity with him. Mehlenbacher is HIV positive, which puts the women he is imprisoned with at additional and unacceptable risk. In March 2020 he was charged with the sexual assault of a female prisoner.
Frank Colasimone has a lengthy and extensive offending history which includes several convictions for armed robbery and drugs offences. His most recent conviction was in September 2016 when he was sentenced to 14 years and 6 months imprisonment. He was initially sent to the male estate and was held at both Matsqui Prison and Kent Institution. At the time of an appeal against sentence in November 2017 he was still listed as a man.
However, in 2018 or 2019 he began to identify as a woman and was transferred to the female estate at Fraser Valley Institution. Whilst he was there he sexually harassed female prisoners. For a while he was the romantic partner of fellow prisoner, Michael Williams, who was also held at Fraser Valley Institute (see below).
Michael Williams was sentenced to life in prison in 2007 for the first-degree murder and rape of a 13-year old Indigenous girl in 2005. He had lured Nina Courtepatte from a shopping mall before raping, strangling, stabbing and then bludgeoning her to death with a hammer. Although he was 17 when he committed the crime, the judge deemed his actions so serious that he should be tried as an adult. (CBC, 18 October 2007) Williams has a history of violence going back to childhood.
At some point after imprisonment, Williams began identifying as a woman and was transferred to Fraser Valley Institute in the female estate. Whilst at FVI, three accusations of assault were made against him. He had sexual relationships with several women. Williams was transferred back to the male estate and has applied to be transferred back into the female estate because he made allegations against men he was held with that they were drugging him in order to rape him. These allegations were found to be groundless. He has been supported in his attempts to be moved back to the female estate by Morgane Oger. (Brad Hunter, Toronto Sun, 1 February 2020 / Karen Finlay, Women are Human, 3 February 2020)
Jean-Paul Aubee was sentenced to life in 2003 for first-degree murder in a gang-related contract-killing that took place in Saskatchewan about ten years earlier. Aubee killed a key witness who was testifying in a murder trial. He was sent to the male estate.
During his incarceration he identified as a woman and changed his name to Fallon. In 2017 became the first prisoner, as a fully intact and unaltered male, to be transferred to the female estate on the basis of gender identity alone. (Kathleen Harris, CBC, 21 July 2017) He is being held at Fraser Valley Institution. Aubee acknowledged that some female prisons might be hesitant about accepting him, stating that there was a stigma attached to being ‘pre-op’. Nevertheless he remained optimistic, "I want to be able to defuse that [stigma] with my character, my attitude, my generosity, so they say, 'Wait a minute, she's just one of the girls.'"
Other males who have been held in the female estate include:
Patrick Pearsall AKA Tara Pearsall, a serial sexual offender and internet predator of underage girls. (Rosie DiManno, Toronto Star, 28 May 2018)
Jamie Boulachanis, who brought a legal case challenging the CSC’s refusal to transfer him to the female estate on the grounds that the risk posed by Boulanchis was too great to be managed in the female estate. The Judge found that the refusal to transfer him constituted discrimination on the grounds of gender identity or expression and that the harm caused to Boulachanis of continuing to hold him in the male estate was greater than the ‘inconvenience’ that could result from transfer to a women’s prison. The risk posed to women in prison was not taken into consideration by the court.
How can I help?
You can help by writing to the following:
Your Member of Parliament. You can find out who your MP is here.
Angela Arnet Connidis, Deputy Commissioner of Women Offenders Correctional Service Canada,
Address: 340 Laurier Avenue West Ottawa, Ontario K1A 0P9 Canada
Phone: 613-992-6067 Alternate phone (National Headquarters): 613-992-5821
Please let us know if you get a response and if you would like any support from our colleagues in Canada.
Further information and resources
Follow Heather Mason, Canadian feminist activist and campaigner for the rights of women in prison on Twitter: