Dinardo v Correctional Services Canada [2023]

Case summary

This case is a human rights complaint brought by Nicholas Dinardo (Mx. Dinardo), regarding harassment and discrimination by Correctional Services Canada (CSC) on the grounds of race, colour, national or ethnic origin, religion, gender identity or expression, and disability, contrary to s. 5 and s. 14 of the Canada Human Rights Act (CHRA). Section 5 of the CHRA prohibits discriminatory practices in the provision of goods, services, facilities, or accommodation. Section 14 of the CHRA prohibits harassment of an individual on a prohibited ground of discrimination. The complaint will be heard at the Canadian Human Rights Tribunal beginning in February 2024. 

Mx. Dinardo says that CSC has discriminated against them on the basis of their gender identity, mental health disabilities, Indigenous identity, and religion during their incarceration. In particular, Mx. Dinardo, who is Two-Spirit, alleges several discriminatory practices by CSC, such as subjecting them to an unsafe and traumatizing living environment where they experience isolation; violence and threats; failing to provide gender-affirming clothing; repeatedly misgendering them; subjecting them to strip searches by male staff; denying them gender appropriate placement; and denying them gender-appropriate programming.

The outcome of this case may have significant impact on tackling the correctional practices that harm incarcerated Two-Spirit people and people who are marginalized based on gender. People who are marginalized based on gender experience disproportionate violence and harassment while incarcerated from both fellow inmates and from prison staff as well as from prison systems and structures that exclude them. This case also highlights how CSC’s colonial and binary approach compounds and exacerbates the stigma, discrimination, and harm faced by Two-Spirit people, and all people who are marginalized on the basis of gender.

West Coast LEAF’s involvement

West Coast LEAF, in coalition with the Canadian Association of Elizabeth Fry Societies (CAEFS), has been granted interested party status in this case. West Coast LEAF and CAEFS seek to assist the Canadian Human Rights Tribunal in deciding the legal issues in this case by providing insights on the systemic and intersecting grounds of discrimination experienced by criminalized Two-Spirit people and people who are marginalized based on gender.

CAEFS and West Coast LEAF will argue that human rights law must meaningfully account for the lived experiences of Two-Spirit people and people of marginalized gender identities, and that this requires a robust and intersectional approach to the unique and complex nature of discrimination faced by these groups within the prison system and in human rights cases broadly.

Our arguments will also draw attention to how the prison system’s colonial binary approach to incarcerated people compounds the harms experienced by people at the intersection of Indigeneity, gender identity and expression, and other grounds, and particularly Two-Spirit people. CSC’s use of a prison system based on a gender binary fails to support the needs of people marginalized based on gender including the safe and full expression of gender identities. We’re advocating for systemic changes to support incarcerated people who are marginalized because of their gender, but we also recognize that the prison system is inherently harmful. Those harms compound in unique ways for those of marginalized gender identities and expressions.

We also argue that the Canadian Human Rights Tribunal should reject any submissions that pit the needs of federally-incarcerated cisgender women against those who of people marginalized based on gender or privileges one group’s rights over others. The Tribunal should reject any false choice between the safety of cisgender women and the rights of people marginalized based on gender because the rights, safety, and needs of all groups must be treated as equally important.   

The Native Women’s Association of Canada and the Canadian Human Rights Commission are also participating in the proceedings. 

What’s next

West Coast LEAF and CAEFS, represented by pro bono counsel from Raven Law, will attend hearings in this case.

Case documents

Motion for Interested Party Status by the Coalition, Canadian Association of Elizabeth Fry Societies and West Coast LEAF – Canadian Human Rights Tribunal

Statement of Particulars – Canadian Human Rights Tribunal

Learn more

Check out our issue area of Criminalization for more related work.