Prisons were never intended to be nursing homes, hospices, or long-term care facilities. Yet increasingly in Canada, they are being required to fulfill those functions. The proportion of older individuals in federal custody (those 50 years of age and older) is growing. They now account for 25% of the federal prison population (3,534 individuals 50+; 3,432 men and 102 women of a total prison population of 14,004). This demographic has increased by 50% over the last decade alone. Rising correctional health care costs, palliative care, and higher incidence of chronic disease reflect, at least in part, the impacts of a population that is aging behind bars. In some cases, keeping them behind bars is neither necessary, appropriate nor cost-effective. Yet there are currently few community alternatives for this vulnerable segment of the prison population. Many older individuals in federal custody seem to be languishing behind bars. Their sentences are no longer being actively managed, and there are little or no interventions to assist in their rehabilitation and return to the community.
In so far as older individuals in federal custody are concerned, this joint investigation by the Office of the Correctional Investigator (the Office) and the Canadian Human Rights Commission (the Commission) finds a general failure on the part of the Correctional Service of Canada (CSC) to meet the fundamental purposes of the Corrections and Conditional Release Act (CCRA): safe and humane custody and assisting in the rehabilitation and reintegration of offenders into the community.
The conditions of confinement of older individuals in federal custody are lacking in terms of personal safety and dignity, and the prospect of these individuals returning to the community is often neglected and overlooked, all of which jeopardizes the protection of their human rights. The findings of this investigative report show that CSC’s treatment of older individuals in federal custody does not respect their human rights; is not justified in terms of institutional security or public safety; is inconsistent with the administration of lawful sentences imposed by courts, and; is unnecessarily costly to Canadians. CSC is falling short of ensuring that correctional interventions and services meet its obligations to respect and protect the inherent dignity, characteristics, needs and rights of older individuals in federal custody.
Under the Canadian Human Rights Act, the CSC is a service provider with an obligation to provide correctional services that respect people’s characteristics which may require CSC to accommodate their needs related to prohibited grounds of discrimination in the Act, including age and disability, and also the intersection of more than one ground of discrimination (e.g. sex, gender identity or expression, race, national or ethnic origin, disability). This obligation is bolstered by section 4(g) of the CCRA, which requires CSC to ensure that correctional programs, policies and practices respect differences and respond to the special needs of offenders including those related to prohibited grounds of discrimination. CSC must ensure that respect for differences related to prohibited grounds of discrimination is reflected in the design and delivery of correctional services (including correctional policies, programs, practices and facilities). Based on case law from the Supreme Court of Canada, it is clear that CSC has an obligation to not only be aware of differences between federal offenders related to prohibited grounds of discrimination but also to “build conceptions of equality” into correctional services as far as reasonably possible. CSC’s duty to accommodate the needs of older individuals may be limited by considerations of health, safety and cost where those considerations lead to undue hardship, but CSC bears the burden of demonstrating undue hardship.
Read the entire report, and download the PDF, here
Office of the Correctional Investigator
February 28, 2019