Experiences as accused/offenders

Pathways to crime are the experiences that lead individuals to engage in criminal behaviour (Hackett 2013). Targeting crime-prevention interventions, and developing policies aimed at the fair and rehabilitative treatment of offenders, requires a good understanding of these different pathways. For women offenders, this can only be achieved by recognizing that the experiences that lead women and men to engage in criminal behaviour are often different, and their needs once they have entered the system are also different (Hannah-Moffat 2017; Hannah-Moffat and Shaw 2001).

The literature on pathways to crime has often connected women’s involvement in criminal activity to their personal experiences of violence and victimization, also known as the victimization-criminalization continuum (Faith 1993). Many of the strategies used to cope with victimization can move women along the continuum, increasing their risk of criminal behaviour (Gilfus 2002; Pollack 2007). Other types of experiences may also contribute to criminal behaviour. For example, most women accused/offenders have experienced social exclusion caused by physical or sexual abuse, mental illness, poverty, homelessness, racism and/or a history of trauma (Balfour and Comack 2006). Indigenous accused/offenders, in particular, continue to experience the traumatic legacy of colonialism, including the intergenerational impacts of residential schools and socio-economic marginalization (Clark 2019). Criminalized women also often report histories of substance use and addiction issues, self-injury, or attempted suicide (Auditor General 2017). Substance use and addiction is a major factor that influences women’s involvement with crime. In fact, many women commit crimes such as theft and property offences to financially support their addiction (Canadian Human Rights Commission 2003).

Although some pathways are similar among men and women, many social and economic conditions affect women more than men, such as single parenting, lack of access to affordable child care, living in poverty, lack of employment opportunities and unstable housing (see for example Kruttschnitt 2013; Pollack 2007).

Police

Compared with men, women represent a small proportion of those accused of police-reported crime (Savage 2019). Women also tend to be arrested and convicted for less serious crimes than men (Gartner and Jung 2014; Hannah-Moffat 2017; Mahony 2015; Savage 2019) and are less likely to engage in violence (Balfour 2020; Bloom et al. 2003; Hannah-Moffat 2017).

In 2019, nearly one million (849,039) individuals ages 12 and over were accused of committing at least one Criminal Code offence (excluding traffic violations), with females comprising one-quarter (26%) of accused (Uniform Crime Reporting Survey, Statistics Canada, special request). Violent crimes accounted for a smaller proportion of crimes with a female accused (27%), than for crimes with a male accused (32%; see Chart 6). In contrast, property crimes made up a larger proportion of crimes with a female accused (39%) than for crimes with a male accused (32%) (ibid; Hannah-Moffat 2017; Savage 2019). Shoplifting was the most common property offence for females (49%), a proportion much higher than that observed among males (35%) (Uniform Crime Reporting Survey, Statistics Canada, special request).

Chart 6. Police-reported offences, by gender of accused and category of offence (as a percentage of all police-reported offences for each gender), 2019.

Text version

% of all police-reported offences

	Female Accused	Male Accused
Violent Crime	27%	32%
Property Crime	39%	32%
Drug Offences	5%	6%
Other Criminal Code Offences	34%	36%
Other Federal Statute Violations	3%	2%

Source: Uniform Crime Reporting Survey, Statistics Canada, special request.

Administration of justice offences (AOJOs), such as breaching conditions of release or failure to appear in court,54 are one of the most common Criminal Code offence categories, accounting for 10% of all police-reported crimes in 2019 (Statistics Canada, Table 35-10-0177-01) and one-fifth (22%) of all adult criminal court cases in 2018/2019 (Statistics Canada, Table 35-10-0027-01). AOJOs have been identified as contributing to delays and acting as a “revolving door” for many involved in the CJS, especially Indigenous individuals and vulnerable and marginalized populations. A Report to Parliament of the Standing Committee on Public Safety and National Security (House of Commons 2014) explored justice system spending and identified AOJOs as an area of potential inefficiency. Between 2014/2015 and 2018/2019, approximately 20% of adults in criminal courts had an AOJO. The proportion of women with an AOJO was similar to that of men, with little change over time (Statistics Canada, Table 35-10-0027-01).55

Women make up a minority of adults accused of homicide (12% in 2019), with both Indigenous and non-Indigenous women being less likely than their male counterparts to be accused of this crime (Uniform Crime Reporting Survey, Statistics Canada, special request). Indigenous women are, however, overrepresented among women accused of homicide. Despite making up only 4% of the adult female population in Canada (Statistics Canada 2018), Indigenous women made up 39% of women accused of homicide in 2019 (Homicide Survey, Statistics Canada, special request). In 2019, Indigenous women were accused of homicide at a rate of 2.82 per 100,000 population, 14 times higher than the rate for non-Indigenous women (0.20 per 100,000).56

The rate for Indigenous women is also higher than that for non-Indigenous men (1.80 per 100,000) but lower than the rate for Indigenous men (18.59 per 100,000) (Homicide Survey, Statistics Canada, special request). Women accused of violent offences often commit the offence in the context of family violence or intimate partner violence (IPV) and act in self-defence or in defence of their children (Canadian Human Rights Commission 2003; Hannah-Moffat 2017; Savage 2019).

Courts

Women are not only less likely than men to be accused in police-reported criminal incidents (26% of all incidents in 2019 involved a female accused), they also comprise a much smaller proportion of accused in court cases. In 2018/2019, only one-fifth (19%) of cases completed in adult criminal court involved a female accused. Among those accused of violent and property crimes, women were less likely than men to be found guilty (38% and 50% respectively, compared with 50% and 64% for men) (Statistics Canada, Table 35-10-0027-01). When they did receive a guilty decision for a violent offence, women were less likely to be sentenced to custody (22% compared with 39% for men) (Statistics Canada, Table 35-10-0030-01).

Specialized Courts and Programs

The relationship between substance use and criminal behaviour is well established. Statistics Canada (STC) has estimated that approximately one in five contacts with the police involves someone with a mental health or substance use disorder (Boyce et al. 2015).57 In the federal correctional system,58 it is estimated that as many as four-in-five women have a substance use problem (Farrell MacDonald et al. 2015). Other studies have reported similar estimates for men (between 70% and 80%) (Kelly and Farrell MacDonald 2015a, 2015b). Despite these estimates, there is a gap in knowledge regarding the prevalence of substance use among those in contact with the CJS. Drug Treatment Courts (DTCs) can be an effective tool in providing accused persons appropriate treatment and support that may address the underlying substance use and addiction issues that bring them to court. DTCs primarily admit clients who are at a high risk of re-offending. While the program offers specialized programming to address the unique needs of women, DTCs experience difficulties reaching and retaining this population. Women participants have noted factors that might impact their participation such as discomfort or fear of disclosing personal issues during the program. Women might also require further incentives to participate such as receiving supports and services including childcare and housing (Department of Justice Canada 2015).

The Indigenous Courtwork Program (ICWP) assists Indigenous individuals involved in the CJS in obtaining fair, just, equitable, and culturally-relevant treatment. Services include: providing information to accused persons and their families; referrals to resources and services; providing assistance to victims/survivors; supporting witnesses and family members; promoting and facilitating practical, community-based justice initiatives; and advocating for Indigenous individuals. Of those clients served by the ICWP who are charged with an offence, over one-third (34%) are women. These proportions remained relatively stable from 2012/2013 to 2016/2017 (Department of Justice Canada internal database).59 According to the 2018 Evaluation of the ICWP (Department of Justice Canada 2018b), there were no significant differences between women and men in regards to the types of courtworker services60 required. However, there were a few differences in the types of charges and the clients’ circumstances, which ultimately affects the specific programming needs for women and men. For example, the 2018 Evaluation of the ICWP identified anger management programs, as well as programs targeting domestic violence, as programming gaps for women offenders.61

Remand

Remand is the temporary detention of accused persons in provincial or territorial custody who are awaiting trial or sentencing.62 An accused person can be detained in remand for three reasons: to ensure attendance in court; for protection of the public; and to maintain public confidence in the justice system. The average number of adults in remand has outnumbered the population of adults who are in provincial/territorial sentenced custody every year since 2004/2005 (Correctional Services Program 2017). Women tend to spend shorter amounts of time in remand than men. In 2017/2018, 59% of women in remand spent one week or less there, compared with half (50%) of men. Only 17% of women spent more than one month in remand, compared with over one-quarter (26%) of men (Malakieh 2019). Women’s shorter remand time may partially be explained by the less serious nature of their crimes; less complex cases and fewer court appearances (Department of Justice Canada 2011).

Detaining accused individuals in remand is financially costly to the justice system (Correctional Services Program 2017; Johnson 2003). Remand may also pose significant challenges related to legal rights (e.g., access to justice, presumption of innocence), human rights (e.g., poor conditions, overcrowding, lack of correctional programming) and the CJS’s disproportionate impact on vulnerable and marginalized people. In addition to the potential loss of employment and housing, there are impacts of remand that may affect women more severely than men. Women are more likely than men to be lone parents (Statistics Canada 2017b) and primary caregivers to family members or friends (Statistics Canada 2020), and so are more likely to be negatively impacted by separation from family  (Canadian Civil Liberties Association 2014; Correctional Services Program 2017). There are also documented negative psychological, physical, and social impacts of remand on pregnant women (Knight and Plugge 2005; Mukherjee et al. 2014; Shaw et al. 2015). In some legal cases, the use of remand for pregnant women has been found to be unjustified (see for example R. vs. D [A.] 2003 and R. vs. Grewal 2008).

Case processing time

The length of time it takes to process a case through the courts (i.e., case processing time) is another important measure of court efficiency and, by extension, an important measure of fairness and accessibility. Court delays increase costs of the CJS, impact the rights of the accused, and may negatively affect victims/survivors of crime. The Canadian Charter of Rights and Freedoms outlines the right of an accused to a trial within a reasonable time (Section 11(b)). The Supreme Court of Canada’s (SCC) decision in R. vs. Jordan(2016) established a new framework for determining unreasonable delay and provided presumptive ceilings on the time between the accused person’s charge date and the end of trial (i.e., 18 or 30 months, depending on the specifics of the case).63

The median number of days to complete a case was at least ten days lower for women than for men every year from 2014/2015 to 2017/2018, with a slightly smaller difference in 2018/2019 (8 days or 133 days vs. 141 days).64 Since 2014/2015, case processing time has increased for both women and men, however the increase was slightly greater for women (18% vs. 14% for men) (Statistics Canada, Table 35-10-0029-01). The reason for the greater increase in case processing time for women is not clear, though it may be related to changes in women’s offending over time (Savage 2019).

Corrections

In Canada, correctional populations are counted in a number of ways including incarceration rates,65 admissions to custody,66 and total offender population.67

Incarceration rates

The overall provincial/territorial incarceration rate68 remained relatively stable between 2014/2015 and 2017/2018 (between 84 and 88 adults per 100,000 population) but decreased in 2018/2019 (79.57 per 100,000) (Statistics Canada, Table 35-10-0154-01). The overall federal incarceration69 rate steadily decreased from 53.0 per 100,000 in 2014/2015 to 47.08 per 100,000 in 2018/2019 (Statistics Canada, Table 35-10-0155-01). However, the changes in rates of incarcerated women do not follow the broader trends. An examination of the trends in adult federal custody populations based on the data points for the last three census years (2006, 2011, and 2016) show that the federal incarceration rate increased by 16% for Indigenous women (from 35.7 per 100,000 in 2006 to 41.4 per 100,000 in 2016) and by 32% for non-Indigenous women (from 2.5 per 100,000 in 2006 to 3.3 per 100,000 in 2016) (Department of Justice Canada 2018c).

Admissions to provincial/territorial and federal custody

Women make up a minority of admissions to provincial/territorial custody. In 2018/2019, only 15% of provincial/territorial admissions to custody were women, a proportion that has slightly increased from 2014/2015 (13%) (Statistics Canada, Table 35-10-0015-01). Despite representing only 4% of all women in Canada, Indigenous women made up 42% of women’s admissions to provincial/territorial custody. In comparison, Indigenous men made up a smaller share of the total population of men admitted into provincial/territorial custody (28%).70 Since 2007/2008, the number of Indigenous women admitted to provincial/territorial custody has increased dramatically, by 66%, compared to a decrease of 8% for non-Indigenous women. In comparison, the number of Indigenous men admitted to provincial/territorial custody has increased by 28% while the number of non-Indigenous men decreased by 17% (Malakieh 2019).

The story is similar for women in the federal correctional system. In 2018/2019, women comprised 8% of admissions to federal custody. However, over the last ten years, while the overall number of admissions to federal custody has decreased by 8%, the number of women admissions has increased by 16% (Public Safety Canada 2020). In 2018/2019, of all women admitted to federal custody, two-fifths (41%) were Indigenous. Indigenous men comprised over one-quarter (29%) of men’s admissions (Correctional Services Survey, Statistics Canada, special request). Similar to their representation in the general population (see Text Box 2), Indigenous offenders admitted to federal custody tend to be younger than their non-Indigenous counterparts. Specifically, 42% of Indigenous offenders are under the age of 30 at admission, compared with 32% of non-Indigenous offenders. Indigenous women have a median age of 32 at admission, compared with 34 for non-Indigenous women71 (Public Safety Canada 2020).

Total offender population

The total federal offender population is measured by the number of individuals in custody and under community supervision at the end of each fiscal year.72 Overall, women represent a small proportion (6% in 2018/2019) of the total federal offender population. However, the number of women in federal corrections has increased by 20% since 2014/2015, despite the total number of offenders changing very little (+0.3%). The reality is even more concerning for Indigenous women, whose numbers have increased by 38% compared with 13% for non-Indigenous women (Public Safety Canada 2019; Public Safety Canada 2020). Of all women in federal corrections in 2016/2017, almost one-quarter (23%) identified as First Nations, 8% identified as Métis, and less than 1% identified as Inuit while 68% identified as non-Indigenous (Correctional Service of Canada, Offender Management System, special request). In comparison, of Canada’s total population of women aged 15 or older, 2% identified as First Nations, 2% as Métis, and less than 1% as Inuit in the 2016 Census (Statistics Canada 2018).

The trends for men differ, and show an increase of 17% for Indigenous men and a decrease of 3% for non-Indigenous men over the same time period. Similar to the proportions for federal admissions, Indigenous women represented one-third (34%) of all women in federal corrections in 2018/2019, compared with less than one-quarter (25%) of Indigenous men (Public Safety Canada 2020). These proportions are increasing at an alarming pace especially in comparison to their trends in the general population. In 2016, Indigenous individuals accounted for 5% of the total Canadian population, up from 4% in 2006 and 3% in 1996 (Statistics Canada, Census data). If the trends persist, the proportional representation of women, particularly Indigenous women, in federal corrections will continue to increase.

Chart 7. Indigenous individuals among the total federal offender population, by sex, 2014/2015 to 2018/2019.

Text version

% among total federal offender population

	Indigenous women	Non-Indigenous women	Indigenous men	Non-Indigenous men
2014/2015	30%	70%	21%	79%
2015/2016	31%	69%	22%	78%
2016/2017	31%	69%	23%	77%
2017/2018	33%	67%	23%	77%
2018/2019	34%	66%	25%	75%

Source: CSC with custom tabulations from JUS.

In 2018/2019, women in the federal correctional system were more likely than men to be supervised in the community (51% vs. 39%, respectively) rather than held in custody (49% vs. 61%, respectively). The proportion of federal offenders supervised in the community has increased in the last five years for both women and men (43% and 35%, respectively in 2014/2015) (Public Safety Canada 2019; Public Safety Canada 2020).  In 2018/2019, the majority of Indigenous women in federal corrections were in custody (60%)  rather than supervised in the community (40%). The opposite was true among non-Indigenous women in federal corrections, with 44% in custody and 56% supervised in the community. The proportions of both Indigenous and non-Indigenous women being held in custody, as opposed to supervised in the community, have decreased since 2014/2015 (68% and 53%, respectively). Indigenous men were least likely to be under community supervision in 2018/2019 (72% were in custody) (Public Safety Canada 2020).

In 2018/2019, Indigenous individuals accounted for over one-third (35%) of all people identified as a dangerous offender (DO).73 This increased from 30% in 2014/2015. Very few women are designated as DOs and, therefore, an analysis by sex and Indigenous identity cannot be made. (Correctional Service of Canada, special request).

To successfully reintegrate into the community, women offenders must be given the opportunity to work on their criminogenic needs, especially within the prison context or through community-based programs (Hannah-Moffat 2010). These needs must be appropriately addressed via trauma- and violence-informed, as well as gender-responsive approaches,74 programming and/or treatment to reduce the likelihood of re-offending (Bloom, Owen and Covington 2008).75 In most criminogenic domains, incarcerated women are more likely to have a moderate/high need than incarcerated men. For example, incarcerated women are more likely to have an incomplete high school education and be unemployed at the time of arrest compared with their male counterparts (Ferguson 2016; Zinger 2014). In addition, many incarcerated women have children or dependents at home, which can lead to increased anxieties when separated from them (Hackett 2013). A disproportionately high number of incarcerated women have mental health and addiction issues compared with the general population, and with incarcerated men. Many federally incarcerated women meet the criteria for a mental health disorder, have low psychological and social functioning, and some have been hospitalized for psychiatric reasons prior to incarceration (Brown et al. 2018a; Brown et al. 2018b; Sapers 2012).

Women with an identified criminogenic need are more likely than men to complete a correctional program. In 2018/2019, for example, 86% of federally incarcerated women with an identified criminogenic need completed a correctional program compared with 49% of men. While the percentage of women completing correctional programs has increased from 80% in 2014/2015, the completion rate for men has decreased from 64% (Correctional Service of Canada, special request).

Correctional Service of Canada (CSC) also provides educational programs to incarcerated offenders designed to provide literacy, academic, and personal development skills that lead to formal recognition, certification or accreditation from an educational authority.76 Similar to the correctional program data noted above, women with an identified need are more likely than men to complete an educational program, regardless of other identity factors, such as Indigenous identity and identification as a visible minority. In 2018/2019, for example, 81% of federally incarcerated women with an identified need completed an educational program compared with 57% of men. While the percentage of women completing an educational program has increased from 63% in 2014/2015, the completion rate for men stayed relatively stable (55%) (Correctional Service of Canada, special request).

The Office of the Correctional Investigator (OCI) is mandated by the Corrections and Conditional Release Act to act as an Ombudsman for federal offenders. The OCI provides independent oversight of CSC by providing accessible, impartial, and timely investigation of individual and systemic concerns. Federally sentenced individuals may file complaints with the OCI related to decisions, recommendations, acts or omissions by CSC, and it is the Office’s responsibility to investigate and resolve them. In the SOCJS Framework, complaints to the OCI are a measure of fairness, where a decrease in complaints over time could suggest an increase in fairness in the federal correctional system. Data shows that the proportion of complainants77 who are women increased slightly from 8% in 2013/2014 to 12% in 2018/2019. Similar to their composition in the women’s federal offender population, Indigenous women complainants make up almost one-third (32%) of women complainants. Overall, compared with their representation in federal corrections (6%), women make up a higher proportion of complainants to the OCI (Office of the Correctional Investigator, special request).78

Release

Women released from prison do not usually pose a significant risk to the community. They tend to have low levels of recidivism and when they do re-offend, their crimes typically do not increase in severity (Hannah-Moffat 2017; Kong and AuCoin 2008). Advocacy groups such as the Canadian Association of Elizabeth Fry Societies have argued that this low risk of re-offending should be considered when planning for the release of criminalized women.

Early release from prison can help women successfully reintegrate into the community. However, many incarcerated women are on waitlists for correctional programming and community housing plans, which ultimately affects their eligibility for parole (Auditor General 2017). Other barriers to a successful community reintegration include:

• meeting numerous and strict parole conditions;
• finding housing and employment;
• obtaining health and mental health care;
• obtaining treatment for substance use issues;
• obtaining social assistance and/or having financial stability;
• difficulty reuniting with children and families; and,
• dealing with the stigma of their criminalized status (Correction Service of Canada 2014; Maidment 2006; Richie 2001; Shaw et al. 1991; Turnbull and Hannah-Moffat 2009; Zinger 2018).

Leaving these issues unaddressed can result in women living in unsafe situations and can increase their risk for victimization and re-offending. Therefore, it is important for women to have access to gender-responsive and culturally-relevant resources and programs to address barriers to successful reintegration.

Research has shown that obtaining employment is one of the best predictors of successful reintegration and a lowered risk of recidivism (Wilson et al. 2000). CSC provides employment and employability skills training to federal offenders to ensure that they have the skills and training required to obtain and keep employment upon release.

Overall, a relatively high proportion of individuals under federal correctional supervision secure employment before the end of their sentence (75% in 2017/2018) and this has been slowly increasing since 2013/2014 (72%). In 2017/2018, women were slightly less likely than men to secure employment (72% vs. 75%). Additionally, Indigenous and visible minority women were less likely than other women to secure employment (57% and 78% respectively, compared with 81%) (Correctional Service of Canada, special request). Indigenous individuals who return to an urban setting may face social marginalization and systemic barriers to employment, while those who return to rural communities or reserves may be contending with not only lack of employment opportunities, but also inadequate access to basic needs such as clean drinking water or housing (Wesley 2012). Data on type of employment obtained and length of employment post-release would further assist in understanding the challenges faced by women released from prison.

Between 2014/2015 and 2018/2019, the proportion of offenders in federal corrections who applied and were granted day parole by the Parole Board of Canada (PBC) increased from 71% to 80%, while full parole grant rates increased from 30% to 38%.79 Women were more likely than men to be granted both day and full parole, and those proportions increased over the five-year timeframe, from 85% to 94% for day parole and from 45% to 47% for full parole (Public Safety Canada 2020).

Section 84 (s. 84) of the Corrections and Conditional Release Act requires CSC to involve Indigenous communities in planning for the release of Indigenous individuals to their community. Overall, the proportion of Indigenous individuals released from federal custody with a s. 84 plan increased from 26% in 2013/2014 to 31% in 2017/2018. However, the reality for women is hidden in the broader trend  which is driven by men. While Indigenous women released from custody were more likely to have a s. 84 plan than Indigenous men (43% vs. 30% respectively in 2017/2018), the relative proportion has actually decreased since 2013/2014, when 54% of Indigenous women had a s. 84 release plan. Comparatively, the proportion of Indigenous men with a s. 84 release plan increased from 24% in 2013/2014 (Correctional Service of Canada, special request).