I wish to acknowledge the assistance of my colleagues, Shannon O’Byrne and Annalise Acorn, who provided valuable assistance in the development of this work. As well, I wish to thank my Research Assistant, Brenda Waddle, who assisted in the collection of data and information relied upon in the paper.

1. Gavigan, S. “Women’s Crime: New Perspectives and Old Theories” in Adelberg & Currie, eds, Too Few to Count: Canadian Women in Conflict with the Law (Vancouve: Press Gang Publishers, 1987) at 61.Google Scholar

2. MacKinnon, C.A. Toward a Feminist Theory of the State (Cambridge, Mass: Harvard University Press, 1989) c. 6.Google Scholar

3. Lombroso, C. &Ferrero, E. The Female Offender (New York: D. Appleton, 1900) at 151.Google Scholar

4. Pollack, 0. The Criminality of Women (New York: A.S. Barnes & Company, Inc., 1950) at 10.Google Scholar

5. Ibid. at 10-11.

6. Adler, F. Sisters in Crime: The Rise of the New Female Criminal (New York: McGraw-Hill Book Co., 1975).Google Scholar

7. Ibid. at at 252.

8. SeeJohnson, H. “Getting the Facts Straight: A Statistical Overview” in Adelberg & Currie, eds, supranote 1 at 26;Google Scholar Smart, C. Women, Crime and Criminology: A Feminist Critique (London: Routledge & Kegan Paul Ltd., 1977) at 72–76.Google Scholar

9. SeeWindschuttle, E. “Women, Crime and Punishment” in Mukherjee, S.K. &Scutt, J.A. eds, Women & Crime (Sydney: George Allen & Unwin Australia Pty. Ltd., 1981).Google ScholarSee also MacKinnon, supra, note 2 at 239.

10. SeeBoyle, C.L.M. et al., A Feminist Review of Criminal Law, Stuart Russell, J. ed., (Ottawa: Minister of Supply and Services Canada, 1985) at 140.Google Scholar

11. Ibid

12. See Pollacksupra, note 4 at 5.

13. See Boylesupra, note 10 at 140-41.

14. See Smart,supra, note 18 at 138.

15. See Boyle,supra, note 10.

16. Ibid. The studies referred to by the authors in this work are from the United States, Australia and the United Kingdom.

17. SeeFaith, K. “Media, Myths and Masculinization: Images of Women in Prison” in Adelberg & Currie, eds,Google Scholar supra, note 1 at 181.

18. Ibid. at 197-98.

19. SeeBenzvy-Miller, S. An Empirical Study of the Use of Mitigating and Aggravating Factors in Sentence Appeals in Alberta and Quebec from 1980 to 1985, (Ottawa: Department of Justice, 1988).Google ScholarThis report indicates that the factors of marital status, role of offender in crime (as follower), and reputation of offender are considered by Appeal Courts in their sentencing decisions. Unfortunately, the study does not assess whether consideration of these factors differ in relation to female and male offenders.

20. Supra, note 2 at 109-10.

21. SeeKmttschnitt, C. &Johnson, C. “Sentencing Recommendations and Women Offenders: the Biopsychological Model and Treatment of Female Offenders” in Mukherjee, S.K. (1984)Google Scholar2 Law and Inequality 97.

22. As reported in Smart, Supra, note 8.

23. See Boyle, Supra, note 10 at 54,

24. See Williams v. Williams (1953) 37 Cr. App. R. 71.

25. Defined as women of status, non-status, or Metis heritage.

26. Jackson, M. “Locking Up Natives in Canada” (1989)Google Scholar23 University of British Columbia Law Review 215 at 218.

27. Report of the Task Force on Federally Sentenced Women: Creating Choices, (Ottawa: Correctional Service Canada, 20 April, 1990) (Co-Chairpersons: Bonnie Diamond & Philps, James A.) at 78. (hereinafter Task Force Report).Google Scholar

28. laid. at 15.

29. Task Force Report,supra, note 27 at 17.

30. SeeWomen in Canada. A Statistical Report, 2nd ed. (Ottawa: Statistics Canada, Minister of Supply and Services Canada 1990) at 163.Google ScholarSee H. Johnson, supra, note 8 at 23.

31. SeeAdult Correctional Services in Canada Report (1987-88) (Ottawa: Statistics Canada, Minister of Supply and Services Canada 1989).Google Scholar Women in Canada. A Statistical Report, supra, note 30 at 171-72.

32. See Boyle,supra. note 10 at 115.

33. See Johnson,supra. note 8 at 34.

34. Canadian Association of Elizabeth Fry Societies, Sentencing in Context “Revealing the Realities of Women in Conflict with the Law” (Consultation Paper, March 1988) at 9. (Hereinafter Elizabeth Fry).

35. See Johnson, supra, note 8 at 26. Johnson states that: “In the experience of correctional workers, women who come into conflict with the criminal justice system tend to be young, poor, undereducated and unskilled. A disproportionate number are Native. Many are addicted to alcohol, drugs or both. Large numbers have been victims of physical and sexual abuse, and many are emotionally or financially dependent on abusive male partners.”

36. See Task Force Report, supra, note 27 at 51; and SeeMacleod, L. Battered But Not Beaten: Preventing Wife Abuse in Canada (Ottawa: Canadian Advisory Council on the Status of Women 1987)Google Scholar

37. See Women in Canada. A Statistical Report, supra, note 30.

38. See Jackson, supra, note 26 at 215-16. See also Johnson, supra, note 8 at 39.

39. SeeLa Prairie, C. “Native Women and Crime in Canada: A Theoretical Model”,Google Scholar in Adelberg & Currie, eds, supra, note 1 at 104. Also note that evidence of substance abuse among federally sentenced aboriginal women is substantiated in the Task Force Report, supra, note 27 at 52.

40. See Task Force Report, supra, note 27 at 51supra, note 27 at 51.

41. Report of the Standing Committee on Justice and Solicitor General on its Review of Sentencing, Conditional Release and Related Aspects of Corrections: Taking Responsibility. (Ottawa: (Ottawa: Queen’s Printer 1988).Google Scholar (Chairman: David Daubney, M.P.) at 237. (hereinafter Daubney Report).

42. See Johnson supra, note 8 at 43-44.

43. Task Force Report, supra, note 27 at 127.

44. Ibid, at 17.

45. See Elizabeth Fry, supra, note 34.

46. Boyle supra, note 10 at 123.

47. Ibid. See also Elizabeth Fry, supra, note 34 at 26, and Johnson, supra, note 8 at 34.

48. Johnsonsupra, note 8 at 25.

49. See Boyle, supra, note 10.

50. See Elizabeth Fry supra, note 34.

51. See Boyle, supra, note 10 at 125.

52. Cooper, S. (Dunn) “The Evolution of the Federal Women’s Prison”,Google Scholar in Adelberg & Currie, eds, supra, note 1 at 127.

53. Task Force Report, supra, note 27 at 35. The Task Force Report refers to the earlier Parliamentary Sub-Committee Report on the Penitentiary System in Canada, (Ottawa: Minister of Supply and Services Canada, 1977) which concluded that: “One area in which women have equality inCanada—without trying—is in the national system of punishment. The nominal equality translates itself into injustice. But lest the injustice fail to be absolute, the equality ends and reverts to outright discrimination when it comes time to provide constructive positives—recreation, programs, basic facilities and space—for women.”

54. SeeAshworth, A. Sentencing and Penal Policy (London: Weidenfeld and Nicholson 1983) at 319.Google Scholar

55. Federally sentenced women are those sentenced to over two years imprisonment, provincially sentenced women are those sentenced to two years or less.

56. See, for example, Elliott, L. &Morris, R. “Behind Prison Doors” in Adelberg & Currie, eds,Google Scholar supra, note 1 at 149. See also the Task Force Report, supra, note 27 at 35-43 which documents earlier studies which have reached similar conclusions.

57. It appears that the most recent call for closure of P4W has been heeded. On September 26, 1990, the Minister of Justice announced that P4W will be closed.

58. Task Force Report, supra, note 27.

59. See Boyle, supra, note 10 at 119.

60. Ibid.

61. See Task Force Report,Ibidnote 27 at 8. As well, four suicides occurred at P4W during the course of the Task Force inquiry.

62. Boylesupra, note 10 at 119-20.

63. Interestingly, most of the Commission’s comments regarding women are also related to Native offenders. The Commission does appear to recognize that both groups suffer similar social and economic disadvantage which brings them into conflict with the law and that both suffer similar disadvantage in the sentencing process.

64. See Report of the Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach, (Ottawa: Minister of Supply and Services Canada, 1987).Google Scholar at 128. (hereinafter Sentencing Commission Report.)

65. Ibid. at 134. Such assessment is relatively meaningless as an indicator of the approach to be adopted in restructuring sentencing theory and practice given that statistical evidence as to achievement of these goals has been inconclusive in most research studies.

66. See Sentencing Commission Report, supra, note 64 at 154.

67. Ibid. at 316-19. The Commission also recommends that guideline prototypes that it has developed be adopted as providing a basis for formulation of a complete set of national numerical sentencing guidelines for Canada.

68. Ibid. at 322.

69. Ibid. at 320.

70. Ibid. at 323.

71. Ibid. at 374-75.

72. Ibid.

73. Ibid. at 376.

74. See Elizabeth Fry,supra. note 34.

75. Supra, note 41.

76. See Task force Report,Supra, note 27 at 123-32.

77. See Johnson,Supra, note 8 at 43. Other authors writing about female offenders have come to similar conclusions. See, for example, Carol La Prairie’s work on aboriginal female offenders: “Selected Criminal Justice and Socio-Demographic Data on Native Women” (1984) 26 Canadian Journal of Criminology 161.

78. See Ashworth,Supranote 54 at 18. Ashworth states that “Punishment is not only permissible but desirable; it is not merely inherent in the idea of law but also socially necessary in order to maintain laws. Society has an interest in crime control—that is, in ensuring that its laws are duly obeyed—and this provides a justification for taking punitive measures against those who have broken the law.” He recognizes, as well, that punishment generally involves the infliction of some deprivation upon a member of society. See also Rupert Cross & Ashworth, A. eds, The English Sentencing System (London: Butterworths 1981)Google Scholar and Thomas, D.A. Principles of Sentencing (London: Heinemann 1979).Google Scholar

79. SeeTong, R. Feminist Thought: A Comprehensive Introduction (Boulder, Colorado: Westview Press Inc.,1989) at 148.Google Scholar Tong states that Clara Thompson, in her rejection of Freudian theories of biological determinism believed that women’s guilt, inferiority, and self-hatred are grounded in culture and the cultural use of biology, not in biology itself.

80. SeeCross, A.R.N. Punishment, Prison and the Public (London: Stevens 1971).Google Scholar

81. See Ashworth,supra, note 54 at 318.

82. SeeRuby, C. Sentencing (Toronto: Butterworths 1987).Google ScholarRuby discusses both the rise of the rehabilitative ideal in 20th century and its recent decline. He concludes, however, that Canadian courts consistently reiterate the theme that imprisonment provides an opportunity for the reform and rehabilitation of the offender.

83. See Ashworth,Supranote 54 at 320. Ashworth concludes that it is wrong to lengthen an offender’s sentence in an attempt to give the prison authorities sufficient time to rehabilitate him, and a fortiori wrong to lengthen all custodial sentences in the hope of rehabilitating a few.

84. SeeSir James, Stephen Liberty, Equality and Fraternity (London: Cambridge University Press 1967,first pub. 1874)Google Scholarat 161-62.

85. See, for example, von Hirsch, A. & Hanrahan, K.J. The Question of Parole: Retention, Reform, or Abolition? (Cambridge, Mass.: Ballinger Publishing Company 1979)Google Scholarat 32.

86. SeeSykes, J.B. ed., The Concise Oxford Dictionary of Current English (Oxford: Clarendon Press 1982).Google Scholar

87. SeeMillett, K. Sexual Politics (Garden City, N.J.: Doubleday 1970).Google Scholar See also Millett, K. “Feminism, Marxism, Method, and the State: An Agenda for Theory” (1982) 7 Signs: Journal of Women in Culture and Society 515.Google Scholar

88. See Tong,Supra, note 79 at 109-10 and at 201. Tong discusses Simone de Beauvoir’s analysis of the control of women through myths designed by men. “Honore de Balzac, summarized man’s attitude toward woman when he wrote: ‘Pay no attention to her murmurs, her cries, her pains; nature has made her for our use and for bearing everything: children, sorrows, blows and pains inflicted by man. Do not accuse yourself of hardness. In all the codes of so-called civilized nations, man has written the laws that ranged woman’s destiny under this bloody epigraph: ‘Vae victis Woe to the weak!’ ”

89. MacKinnon, Supra, note 2 at 249.

90. This approach does not advocate that a separate sentencing regime be applied to men and women, rather that sentencing theory and practice address women’s interests and reflect women's concerns.

91. See MacKinnon, Supra, note 2 at 249.

92. Desert is determined and measured on the basis of the gravity of the offence (as defined by men) and the culpability of the offender (as defined by men).

93. SeeSykes, J.B. Consumerist Criminology (London: Heinemann 1984) at 60–61.Google Scholar

94. This approach has been recognized by the Task Force on Federally Sentenced Women in its recent report. Task Force Report, Supra, note 27 at 125-29.

95. Ibid.

96. One might argue, for example, that the Supreme Court of Canada’s recognition of the admissibility of expert evidence in relation to battered wife’s syndrome illustrates a recognition of the need to reassess the manner in which guilt is to be attributed to an act traditionally defined as deserving of punishment.Lavallee v. R, [1990] 1 S.C.R. 852 (S.C.C.).

97. SeeRe Apsat and Manitoba Human Rights Commission (1985) 23 D.L.R. (4th) 277 (Man. Q.B.)Google Scholar

98. See Task Force Report, supra, note 27 at 127.

99. Ibid. at 131.

100. For example, Judges, Police, Crown counsel, Defence counsel, Correctional Services personnel, Probation officers and Parole officials.

101. See Elizabeth Fry, supra, note 34 at 17.

102. See Task Force Report, supra, note 27 at 35- 40.

103. See Boyle, supra, note 10 at 124. The authors discuss the effectiveness of community sanctions, supporting vocational training programmes and community service orders as the fairest and most beneficial to both the female offender and the community.

104. Such an approach has been adopted in Baltimore where a programme has been initiated whereby released offenders convicted of property-related offences are provided economic subsidies and vocational training while seeking legitimate employment. SeeSechrest, L. White, S. & Brown, E.D. “The Prospects for Rehabilitation” in Travis, L.F. Schwartz, M.D. & Clear, T.R. eds, Corrections: An Issues Approach (Cincinnati, Ohio: Anderson Publishing Company 1983).Google Scholar

105. See Task Force Report, supra, note 27 at 36 and 76.

106. Ibid. note 27 at 102-04.

107. Sechrest, supra, note 104.