Documents show a pattern of human rights abuses against gender diverse prisoners

This is a view of from the men's maximum security unit of the Saskatchewan Penitentiary in Prince Albert, Sask. THE CANADIAN PRESS/Thomas Porter

TORONTO — For gender diverse people in the Canadian prison system, the act of keeping a low profile can be the difference between life and death, but for those who are visibly queer or transgender, the situation is much more volatile, and they have become targets for violence and abuse.

Despite a recent societal shift in attitudes towards LGBTQ2+ people, documents obtained by CTV News show a pattern of human rights abuses against gender diverse prisoners at the hands of prison staff.

To capture the full picture of what’s happening inside these institutions, CTV News has reviewed hundreds of court documents and spoke with several people in the Canadian prison system who are transgender, non-binary and two-spirit. Their accounts contain distressing details of sexual violence and physical attacks that are being revealed for the first time.

PRISONS ABUSING A LEGAL LOOPHOLE

When Erica Wilson was sentenced to 16 years in prison for drug trafficking in 2016, it did not come as much of a shock to her. Wilson had previously served time in Canada and California where she was incarcerated for drug-related crimes. She wasn’t new to the business of selling drugs or serving time, but her experience this time around was dramatically different from her previous stints in jail.

For Wilson, things started changing in 2018 when she was incarcerated at Kent Institution in British Columbia. After decades of suppressing the idea that she might be transgender, Wilson says she decided to begin living her life as the woman she’s always been deep down inside.

The changes were small, but significant. At 49 years old, Wilson was still exploring her gender identity and started to change her physical appearance to look more androgynous. She began by growing out her hair and shaping her eyebrows to appear more feminine. Eventually, with the help of an endocrinologist, Wilson started a course of hormone therapy and felt confident enough to request women’s clothing from the prison.

Wilson’s requests for women’s clothing, personal items and access to health care professionals were all provided, after repeated requests. But when her lawyers asked to have her transferred to a women’s institution, her request was denied.

For Wilson’s lawyers, this came as a surprise because in 2017, Correctional Service Canada (CSC) adopted an interim policy that outlines how federal prisons should manage offenders with gender identity or expression considerations.

Part of the policy states that “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.”

The policy however, includes a caveat; it goes on to say that requests related to gender identity or expression will be accommodated unless there are “overriding health or safety concerns which cannot be resolved.”

Advocates have called for the caveat to be eliminated and say that it is an obscure decision-making process that allows CSC and prison staff to approve or deny requests at their leisure without taking into consideration an offender’s human rights.

“CSC has a legal obligation to accommodate transgender people,” Wilson’s lawyer Alexandra Paquette told CTV News in a phone interview from her office in Montreal, Quebec.

Paquette, who has represented five other transgender clients in the Canadian prison system doesn’t dismiss the potential for health or safety issues, but she is skeptical of the frequency in which CSC uses this exception to the policy.

“With all the transgender clients I’ve represented, CSC has used that special exception,” Paquette explains.

In a statement to CTV News, Marie Pier Lécuyer, a spokesperson for Correctional Service Canada said, “We take this issue extremely seriously. We are committed to ensuring that our institutions are safe and secure as we work to rehabilitate offenders and uphold public safety.”

CSC says they cannot speak to specific cases due to their obligations under the Privacy Act, however, a spokesperson explained that each transfer request is assessed on a case-by-case basis.

“If an offender was previously denied and re-applies for a transfer at a later date, we always re-assess each request to take into account any circumstances that may have changed,” the spokesperson added.

CTV News has obtained a copy of Erica Wilson’s transfer request. According to the assessment, Wilson’s risk factors include: “negative peers, gang affiliations, entrenched criminal values and poor problem solving and decision-making skills.”

It goes on to say that if Wilson were to be transferred to a woman’s institution, “there would be cause for concern for the psychological safety of the current population at EIFW [Edmonton Institution for Women]. Wilson expresses as a man and has no foreseeable plans to alter his [sic] appearance in order to express as a woman once at EIFW. While it is not necessary for an individual to express as their gender, her masculine appearance and deportment pose an imminent risk to the psychological safety of a segment of the population from EIFW.”

The assessment, which was completed in March 2021, also raised concerns about Wilson’s inappropriateness with female staff at the prison and states that she has “manipulative behaviours.”

Wilson has made it known that she began taking hormones in 2018 and has consulted with a psychologist and endocrinologist regarding her physical transition. She wears women’s clothing and prefers to wear her hair pushed back, sitting just a few inches below her shoulders. Regardless of these changes, Wilson and her lawyers maintain that it is within her right to be transferred to a women’s institution and stress that any delay would continue to put her at-risk.

Throughout the six years that Wilson has been incarcerated she says correctional officers have openly called her a “t****y” or “f****t” in front of a cohort of 60 other inmates and that these negative interactions with prison staff have raised tensions and motivated other inmates to make disparaging remarks towards her.

Documents show that Wilson was slashed in the face by another inmate with a homemade weapon at Kent Institution in November 2018 and also detailed another instance where she was attacked and suffered a black-eye in October 2020.

Wilson explains that she has tried speaking with her lawyers to rectify these situations, but will often refrain from making any formal complaints due to a fear of retaliation from correctional officers and other prisoners.

“I’d rather be locked in a cell for 24 hours a day to deal with my journey on my own without any abuse or verbal attacks,” Wilson told CTV News in a phone interview from Saskatchewan Penitentiary. “It’s already scary enough going through this on my own. I should be able to be myself, but I’m afraid and that’s terrible.”

According to CSC, currently less than 1 per cent of offenders in federal custody identify as having what the service deems “gender considerations.” Despite this small population size, others have similar stories of abuse and mistreatment at the hands of prison staff, which some prisoners’ rights advocates say is rooted in a toxic prison culture.

A TOXIC CULTURE AMONG PRISON STAFF

Towards the end of May 2021, Erin Gear received a troubling phone call that sent her into a state of panic late one afternoon.

“They broke my arm,” a voice cried out. “The guards broke my arm.”

At the other end of the phone was Gear’s partner, Nick Dinardo, who at the time was incarcerated at Port-Cartier Institution in Quebec.

Through gritted teeth, Dinardo explained that they had had a mental health crisis the night before, and in the midst of it all they were violently slammed to the ground by correctional officers.

As they were pinned against the cold prison floor, Dinardo says the guards proceeded to hit them repeatedly before twisting and fracturing a fragment of their elbow.

“I just felt myself getting hit in the head and stuff and I got my arm pulled up my back like they're gonna handcuff me and it was getting bent in all these different ways until eventually they stopped, lifted me up and put me in my cell,” Dinardo told CTV News in a phone interview from Millhaven Institution for men in Bath, Ont., where they are currently incarcerated.

“My whole arm was black – like blackish-purple – from the injury,” they lamented. “After eight days a nurse finally looked at my arm, and she's like ‘yeah, you definitely need to go for X-rays.’”

In a statement to CTV News, CSC disputed this claim stating: “Mx. Dinardo was seen and evaluated by professional health services immediately after an incident in May 2021, and provided ongoing care. The privacy of a patient prevents us from being able to disclose any medical information.”

In the weeks that followed, Dinardo, a 29-year-old two-spirit person from Piapot First Nation in Saskatchewan, decided to file what would become their second complaint with the Canadian Human Rights Commission over the abuse and mistreatment they say they have experienced throughout their incarceration.

According to the complaint, Dinardo began serving their third federal prison sentence in November 2018. They have a history of childhood trauma, including sexual abuse and as a result of these experiences they have developed post-traumatic stress disorder, in addition to other mental health issues.

Dinardo first came into federal custody at the young age of 18, after spending six years in juvenile detention. Throughout this time they say the abuse they’ve experienced has only persisted.

“I have seen and experienced a lot of violence, including being assaulted many times by other prisoners,” Dinardo wrote in the complaint. “Guards have used force against me a lot. CSC has not meaningfully helped me with or for the most part even acknowledged the trauma of these experiences.”

They went on to explain that CSC “fails to address my mental health needs and responds to my emotional distress with violence and isolation, which then exacerbates my suffering [...] the distress I feel as a result is compounded by the additional violence, harassment, indignity and lack of safety I have experienced more recently as a result of my gender identity and my placement in institutions designated for men.”

“As a result of policies that do not adequately protect the safety and dignity of gender diverse prisoners and a culture of abuse and antagonism by staff, I am profoundly unsafe,” they added.

Dinardo’s complaints are currently being reviewed by the Canadian Human Rights Commission and a decision is expected later this year.

In a statement provided to CTV News, CSC admits the officers misjudged the situation and that Dinardo posed no particular threat.

An internal investigation later found that prison guards used excessive force that was not proportional to the situation, including unauthorized strikes and kicks, which breached several laws and policies.

Despite these findings – which include video footage of the altercation – crown prosecutors have declined to pursue charges against the officers involved. But advocates agree that the experiences Dinardo describes are systemic issues that are deep-rooted.

“One of the things that we hear about the most when we go into the prisons, is issues around the way that staff treat the prisoners,” Emilie Coyle, executive director of the Canadian Association of Elizabeth Fry Societies, told CTV News. “There just seems to be a really toxic culture.”

Coyle’s organization works to identify issues affecting women, girls and gender diverse people in the justice system and lobbies for legislative changes. She notes that tensions within these institutions can reach a point where the relationship between prisoners and correctional officers becomes eroded and that it can lead to violent treatment.

“Just like in the general population, transphobia exists, and if you couple that with a power imbalance in the prison, it can be really, really detrimental to a person's well-being both mentally and physically,” she explains. “We're dealing with a binary prison system that hasn't caught up to gender considerations.”

As CSC points out, offenders have a number of avenues to report inappropriate behaviour and file grievances whether they are a victim or a witness, but advocates say that individual remedies rarely lead to systemic changes that benefit more than one person at a time.

SWEEPING IT UNDER THE RUG

To this day, when Moka Dawkins hears people shouting, her mind races back to the years she spent at the Toronto South Detention Centre (TSDC) where fighting, yelling and mistreatment were a part of daily life.

Burned into her memory is one afternoon in May 2018 when a verbal exchange commenced between inmates and prison staff. According to court documents, correctional officers began trading insults with prisoners before turning their attention to Dawkins, a transgender woman who was serving an eight-year sentence for manslaughter.

She says midway through the confrontation prison staff started pointing at her and laughing saying “look at that thing” among other slurs and verbal taunts.

Days later Dawkins filed a grievance with the prison, but by that point she said the situation had become too much to handle, and she no longer felt safe.

With the help of her lawyers she was able to file a complaint with the Ontario Human Rights Tribunal where she detailed multiple allegations of discrimination based on her sense of gender and the way she chose to express it while she was incarcerated at the TSDC.

In response, the Ministry of the Solicitor General of Ontario says they investigated the incident and as a result “two correctional officers were disciplined.” While the nature of their punishment was not specified, documents show that the officers were required to review the ministry’s policies for managing gender diverse people and complete an e-learning module about transgender perspectives.

Months later in Oct. 2018, the Deputy Superintendent of Operations at TSDC, Joyliz Nassanga-Sessanga offered Dawkins an apology and assured her that she would not be treated like that again by prison staff.

CTV News has made multiple attempts to reach Nassanga-Sessanga, but calls have not been returned.

For Dawkins, her mistreatment by correctional officers was just the tip of the iceberg. Throughout her four years of incarceration she endured more than a dozen physical attacks in two different Toronto men’s jails, leaving her with cuts, bruises and a scar under her bottom lip.

She says these incidents illustrate how the justice system fails to protect transgender prisoners from violence and discrimination.

“The harassment was an everyday thing from both guards and other inmates,” Dawkins told CTV News in a phone interview. “I always had to watch my back and look over my shoulder. I got into a few incidents where other inmates would just run up and fight me spontaneously with no issue, no prior argument, nothing.”

“It was a violent and traumatizing experience,” she added.

Given that there is no requirement for prisoners to identify their gender identity when submitting a complaint or grievance, experts say it's difficult to understand how pervasive these problems are. However, a 2020 report from the Office of the Correctional Investigator found that LGBTQ2+ individuals behind bars are over represented as victims of sexual assault and coercion.

“There is a considerable amount of transphobia and homophobia among inmates and some staff,” the report notes. “It is clear that CSC needs to develop a specific strategy to protect 2SLGBTQ+ individuals, given their increased vulnerability for sexual victimization and discrimination.”

Records show that in August 2020, Dawkins ultimately agreed to a confidential settlement for $4,000 with the Ministry of the Solicitor General in response to her human rights complaint.

Experts say there are a number of reasons why someone may agree to take a settlement, including: fear of reprisal from prison staff, frustration with the legal system and the need for an immediate remedy. Despite these factors, advocates like Jennifer Metcalfe, the executive director of Prisoners’ Legal Services in B.C., suggest that these settlements are a tactic that is repeatedly used by governments to sweep bad behaviour under the rug.

“I've represented a fairly large number of trans prisoners with human rights complaints, federally and from B.C., and those cases tended not to go to a hearing, and were kind of resolved for individual remedies,” Metcalfe told CTV News in a phone interview.

In order to get policy changes that would benefit more than one person, Prisoners’ Legal Services (PLS) filed a systemic complaint in 2015 that detailed dozens of experiences from transgender prisoners across Canada. Many of the changes PLS requested, like having access to hormone therapy and gendered clothing, or being able to choose whether a strip search will be conducted by a female or male officer, were later implemented in CSC’s 2017 interim policy, but Metcalfe and other advocates say that enforcement is infrequent.

“The policies are not being implemented in accordance with the human rights law, and we’re concerned about that,” Metcalfe explained.

For Dawkins, the light at the end of the tunnel arrived when she was granted parole in November 2019. After four long and violent years behind bars, she now lives freely in Toronto and continues to speak out about the abuse she experienced in prison.

“Prisons have policies and procedures for how people should be treated, but they don’t actually follow them,” Dawkins says. “We’re forced to submit to a system that abuses and discards us.”