By Megan Capp, Hayli Millar, and Raelyn O’Hara, May 2025

2025 marks the 30^th anniversary of the Beijing Declaration and Platform for Action, a global commitment to achieving gender equality and empowering women by addressing critical areas such as poverty, education, health, violence, and participation in decision making.  It also marks the 15^th anniversary of the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (commonly known as the “Bangkok Rules”).  The Bangkok Rules outline the minimum international human rights standards for justice-involved and imprisoned women and promote non-custodial alternatives to detention and imprisonment. An assessment of international efforts over the past 30 years shows some progress, especially in adapting legal frameworks to be more gender responsive. However, there remains a lack of transformative change and much opportunity for innovation in designing more gender-responsive approaches.

Today, on Mother’s Day, we collectively reflect on the role of mothers and motherhood.  With the lens of leaving no one behind, we especially reflect on the experiences of mothers who are currently involved in the criminal justice system.  Our research and practical work in this area demonstrates that this group of women, a majority of whom are mothers and often sole or primary caregivers, are largely invisibilized and frequently stigmatized and stereotyped – including by the state systems intended to support them.

Our interest in the rights of women and their children are based on our collective decade-long work with the ICCLR on the rights of justice-involved women and their children as independent rights holders. We are guided by existing international frameworks, including the legally binding Convention on the Rights of the Child (CRC), ratified by Canada in 1989. The CRC provides a variety of guidance which, alongside the Bangkok Rules, is deeply relevant to protecting the rights of children when their parents are justice-involved. In particular, the CRC recognizes a child’s right to maintain personal relations with a separated or detained parent unless it is contrary to their best interests. It also emphasizes that children have an independent right to have their best interests considered in criminal matters involving their parents.

Through this work it became evident that women’s experiences with bail and remand in Canada are a vastly understudied area.  In response, on March 8^th, 2025, in honor of International Women’s Day, we released an annotated bibliography that critically explores women’s experiences of bail and remand in Canada.

The bibliography reflects our awareness of the evidence that the proportion of women who are being imprisoned and remanded to custody globally is rapidly increasing at a rate that exceeds that of men. It is also founded on our knowledge that there is almost no primary research on the gendered impacts of women’s pre-trial experiences, nor the collateral consequences for their children.  This gap is particularly concerning amongst increasingly politicized calls to ‘strengthen’ Canada’s bail laws.

In brief, our analysis of the available literature and statistics shows that women’s pathways to criminalization differ from men’s and are symptomatic of deeper structural issues that have not yet been adequately addressed.  Factors such as poverty, histories of family and intimate partner violence, adverse mental health outcomes (including trauma and substance dependence) and housing instability disproportionately affect women’s pathways into crime and through the justice system.

In our annotated bibliography we highlight three key Canadian research findings on the gendered impacts of apparently neutral bail and remand policies and practices for women, and especially mothers with caregiving responsibilities.

• First, women may have less access to bail in relation to the criteria used, the availability of sureties and bail monitoring programs, or in simply accessing legal counsel and exercising their legal rights. In fact, we know from the available research that some women plead guilty to avoid being being remanded to custody and losing custody of their children, their employment and their homes.
• Secondly, unrealistic or overly restrictive bail conditions, such as ‘no contact’ orders, geographic or spatial restrictions like red zones, curfews, or house arrest restrictions can limit women’s access to rehabilitative services and can impede their caregiving obligations.
• Third, an increasing number and proportion of women in Canada are being remanded to custody apparently because there are not enough community-based public health and safety supports. This can have a severely disruptive effect on mothers and their children and a mother’s  ability to maintain their caregiving obligations.

These situations are particularly acute for Indigenous and Black women who are overrepresented across the criminal justice process and where Indigenous and Black children are highly overrepresented in state care systems. At the same time, we know almost nothing about other diverse groups of justice-involved women and their children, including sexually and gender diverse women, women with disabilities, and women living in remote and rural communities.

On Mother’s Day, we ask the question: “How can we support families when gender-neutral criminal justice policies and practices fail to account for their profound gendered impacts on mothers and children, disregarding both international and nationally protected rights?”

To begin answering this question, we join others in offering an initial pathway to more gender responsive bail and remand reforms by calling on various levels of government to:

• Collect gender-disaggregated bail and remand data and ensure these data are readily available to inform effective and equitable criminal justice policy reforms.
• Support primary research on women’s bail and remand experiences to inform gender-responsive bail reforms.
• Address the social determinants (structural or root causes) of women’s criminal justice involvement, especially as those determinants relate to women’s inter-generational and cyclical criminal justice involvement in ways that are highly racialized.
• Reduce the number of women who are being remanded to custody by expanding community-based alternatives, especially in relation to effective public health and safety resources for women and their children.
• Integrate the “best interests of the child” framework into criminal justice decisions by separately considering the internationally protected rights of justice-involved mothers and their children as independent rights holders. This includes through the development of assessment tools at the bail and remand stages to consider the adverse collateral impacts on children and potential support mechanisms.

In 2025, as countries around the world celebrate Mother’s Day, the 30th anniversary of the Beijing Declaration, and the 15th Anniversary of the Bangkok Rules for Women, and as the UN Commission on Crime Prevention and Criminal Justice (CCPCJ) meets this May in Vienna, we are reminded of the progress made and the work that remains to be done in advancing women’s rights. Ongoing political and public pressure to “strengthen” bail laws in Canada offers an opportunity to further embody these global and national human rights commitments by addressing the systemic inequities that disproportionately affect justice-involved women and their children.

A justice system committed to equity, family preservation, child rights and desistance from crime must move beyond increasingly punitive practices and be more gender-responsive.  There is the potential for great value in embracing more holistic, human-centered, and evidence informed approaches that consider and advance the rights of justice-involved mothers and their children.

Photo by Helena Lopes on Unsplash.