Supreme Court finds prison risk assessment tests may be discriminatory

Canada’s prison service is using security tests that may discriminate against Indigenous offenders and keep them behind bars longer and in more restrictive environments, the Supreme Court of Canada has ruled.

In a 7-2 decision, the court found that Correctional Service of Canada failed to take steps to ensure that risk assessment tests used for decisions including penitentiary placement and parole eligibility are valid and accurate for Indigenous offenders.

The case involves Jeffrey Ewert, a Métis inmate who was convicted of the murder and attempted murder of two young women, and said the risk assessment tests were unreliable for Indigenous offenders. He said CSC has been aware of concerns about the tests since 2000, but failed to confirm their validity.

The decision says if CSC wants to continue to use the “impugned tools,” it must conduct research into “whether and to what extent they are subject to cross-cultural variance when applied to Indigenous offenders.”

“Any further action the standard requires will depend on the outcome of that research,” reads the majority decision written by Chief Justice Richard Wagner. “Depending on the extent of any cross-cultural variance that is discovered, the CSC may have to cease using the impugned tools in respect of Indigenous inmates, as it has in fact done with other actuarial tools in the past.”

Record percentage of Indigenous inmates  

The ruling noted the troubled history of Indigenous persons and the criminal justice system, saying numerous government commissions and reports have recognized that Indigenous persons face discrimination, “whether as a result of overtly racist attitudes or culturally inappropriate practices, extends to all parts of the criminal justice system, including the prison system.”

Data from correctional investigator Ivan Zinger’s office shows that Indigenous offenders are less likely to get parole than non-Indigenous inmates, and spend longer portions of their sentences behind bars.

It also showed that the percentage of Indigenous offenders reached a record high of 27.4 per cent of the total inmate population as of August 2017.

Justice Malcolm Rowe, writing in dissent, said that in his view, CSC only needed to keep complete and accurate records of the results of the assessment tools. He said Ewert should have asked the courts to review the specific decisions that CSC made about him using the results of the tools.

The British Columbia Civil Liberties Association and the Union of BC Indian Chiefs intervened in the Ewert case. They argued that a bad risk assessment rating can mean an Indigenous prisoner is less likely to get parole, access to programs, or early or temporary release, and more likely to experience solitary confinement and a maximum security setting.

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