Women prisoners in Canada have long endured a system designed and managed for the more than 95% of the prison population that is male (Arbour 1996: 239). Various government reports and commissions of inquiry dating back to 1938 have highlighted the ways in which women have been disadvantaged, treated unfairly, and essentially penalized for their under-representation among those convicted of crime (Arbour 1996: 240-241). Calls for change in recent reports have been prompted in large part by revelations of the shocking and tragic experiences of women prisoners, which, in turn, revealed an equally shocking lack of effective oversight and accountability. Notably, the scathing report of Justice Louise Arbour (1) (1996) into the infamous "certain events at the Prison for Women in Kingston" (the strip-searching of women prisoners by a male Institutional Emergency Response Team in full riot gear, the subsequent illegal and involuntary transfer of women to a segregated unit inside Kingston Penitentiary for men, and further illegal detention in segregation for many months) had as its central focus the lack of independent accountability and oversight that facilitated such seemingly inconceivable events going on as long as they did and (almost successfully) being covered up.
Justice Arbour found a culture of disrespect for the rule of law and "little hope that the Rule of Law will implant itself within the correctional culture without assistance and control from Parliament and the courts" (1996: 182). Among her long list of recommendations, she called for an end to the practice of long-term confinement in administrative segregation (to be facilitated by a recommendation that segregation be subject to judicial supervision) and the expanded jurisdiction of judges to reduce sentences where prisoners have been subjected to "illegalities, gross mismanagement or unfairness in the administration of a sentence" (Arbour 1996: 183). Her report implores that "efforts must be made to bring home to all participants in the correctional enterprise the need to yield to the external power of Parliament and of the courts" (181).
None of Justice Arbour's most substantive recommendations in this regard have been implemented. Ten years after the Arbour Commission, after the building of six new women's prisons to replace the since-closed Kingston facility, the need for meaningful oversight and remedies for illegality and unfair treatment has never been greater. The recent report of the Canadian Human Rights Commission (CHRC 2003) into the discrimination experienced by women prisoners underlines once again the need for effective oversight and accountability mechanisms. There is a very re al concern among women prisoners and their advocates that these most recent recommendations will join those of Arbour and others, gathering dust on a shelf, while token gestures--if any--toward accountability are made. For example, the recent one-off visits to the Grand Valley Institution and the Nova Institution by Her Majesty's Chief Inspector of Prisons for England and Wales, at the invitation of the CSC, are more an evasion than a meaningful response to the recommendations for independent oversight, including an independent Canadian inspectorate of women's prisons.
This article starts from the proposition that report after report has made the case that meaningful, independent accountability and oversight of women's prisons is urgently needed. The question is what forms, structures, or mechanisms will most effectively realize the goal of meaningful, independent oversight and accountability. Ultimately, it is our view that an effective and accessible avenue of judicial review of rights violations, other illegalities, and long-term segregation must be available to prisoners as part of a broader accountability and oversight framework. Other mechanisms such as an independent prison inspectorate and the Office of the Correctional Investigator (with a power to take complaints to a tribunal and/or direct issues to court) are necessary complements to--but not a substitute for--the effective and accessible judicial sanction and remedial scheme that must be made available. …