Arrest/Detention – Ontario

In 2012, Toby’s Act, also known as the ‘Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression’, was passed in Ontario. The Act enshrined protection for gender identity and gender expression in the Ontario Human Rights Code. As a result of the passage of Toby’s Act, and calls from community members, Ontario’s Ministry of Community Safety & Correctional Services passed a policy entitled ‘Policy for the Admission, Classification and Placement of Trans Inmates’. It is the first correctional policy of its kind in Canada.

According to the Ministry of Community Safety & Correctional Services website, “[t]he policy recognizes a person’s self-identified gender, preferred name and pronouns, as well as their housing preference. It is prefaced on the understanding that trans inmates’ Human Rights Code-related needs will be assessed and accommodated through a case management process, which will be developed by a multi-disciplinary case management team, including health care, social work, operational staff and community support.”

Please note that while this policy is based on the Human Rights Code amendments, it is not yet law.


Staff Training
To facilitate the proper implementation of this policy, resources and educational opportunities have been made available to corrections staff. The training strategy is being guided by persons of trans lived experiences. A comprehensive training program has been developed, including a Trans-Awareness e-learning course. This training has been incorporated into a broader Human Rights module.


Searches
Under the policy, corrections staff are required to exercise sensitivity when conducting searches of trans inmates. They are also required to provide explanations and allow for the opportunity for inmates to ask questions during the searches. Importantly, trans inmates have the opportunity to choose who will perform the search.

As per the Ministry of Community Safety & Correctional Services website, “[w]here the inmate chooses to have a male and female corrections officer involved in the search, the inmate must be provided the choice of which body parts are searched by whom. The inmate will be offered privacy in which to be searched, including any search of prosthetics.”


Privacy
Any conversations about an inmate’s gender identity or gender expression must take place out of the hearing of other inmates or other parties for which the information is not relevant. An inmate’s gender identity, gender expression, or gender history must only be shared with those who are directly involved with the inmate, or those individuals to whom the information is relevant.

Classification

Correctional Services employs a case management model, under which trans inmates will be consulted as to their care. This model determines the appropriate assessment, placement, and other services needed to ensure that trans inmates’ needs are assessed and accommodated on an individualized basis.

Self-identification is the primary consideration during classification, as the ministry recognizes that a trans inmate’s identity documents may not accurately reflect the individual’s gender identity or gender expression.

Trans inmate’s will be referred to by their preferred name(s) and pronouns, both verbally and in written documents. In rare circumstances exceptions may be made, such as when it is necessary to refer to the person by their legal name for identification purposes.

Previous admissions are not grounds for correctional staff to make assumptions about an inmate’s gender identity or housing preference.

Placement
Unless it can be proven that there are overriding health or safety concerns which cannot be resolved, trans inmates will

  • be placed in an institution which reflects their gender identity or housing preference. The inmate must be involved in the decision-making process, and will be informed as to the reasons for their placement in a specific institution.
  • be integrated, and not isolated, with the general population. Where it is the case that the inmate must be segregated from the general population, programming and social opportunities will be provided as often as possible.
  • be permitted to retain personal items, including prosthetics, which are necessary to express their gender in the institution and while being transferred by Corrections staff.

Trans inmates must be:

  • provided with their preferred institutional clothing and underclothing while in custody and for court appearances and release.
  • offered individual and private access to the shower and toilet for safety and privacy purposes.

Client Conflict Resolution Unit
The Client Conflict Resolution Unit (CCRU) exists to address human rights complaints that affect clients within Correctional Services. If you feel that your human rights or this policy have been violated, you may file a complaint with the CCRU.

The CCRU can be contacted via telephone at: 0-866-535- 0019 from Monday to Friday between 9:00 a.m. and 4:00 p.m.

If you wish to file a written complaint, you may write to the CCRU at the following address:
Client Conflict Resolution Unit at Ministry of Community Safety and Correctional Services
25 Grosvenor Street, 16th Floor
Toronto, ON M7A 1Y6

Please see pages 8-15 of this document for more information about the process that occurs when and after contacting the CRU.

Sources:

  • Toby’s Act, S.O. 2012 C.7;
  • Human Rights Code, R.S.O. 1990, C.H. 19;
  • Ministry of Community Safety & Correctional Services, “Corrections – Trans Inmate Policy” (January 2015), online: <http://www.mcscs.jus.gov.on.ca/english/corr_serv/PoliciesandGuidelines/CS_trans.html>;
  • Ministry of Community Safety & Correctional Services, “Corrections – Trans Inmate Policy” (January 2015), online: <http://www.mcscs.jus.gov.on.ca/english/corr_serv/PoliciesandGuidelines/CS_trans.html>;
  • Ministry of Community Safety & Correctional Services, “Corrections – Trans Inmate Policy” (January 2015), online: <http://www.mcscs.jus.gov.on.ca/english/corr_serv/PoliciesandGuidelines/CS_trans.html>.