Discriminatory inmate risk assessments in Canada's criminal justice system
Forum: Supreme Court of Canada
This case concerned a legal battle that lasted nearly two decades, challenging the use of certain needs and risk assessment tools in the Canadian criminal justice system.
Mr. Ewert challenged the use of five psychological and actuarial risk assessment tools used by the Correctional Service of Canada (CSC) to assess an offender’s psychopathy and risk of recidivism.
These tools were reportedly developed and tested on predominantly non-Indigenous populations and, despite concerns raised as to their potential cultural bias, no research had ever been conducted to confirm that they were valid when applied to Indigenous persons.
Mr. Ewert was concerned that, because of his Indigenous identity, these tools were incorrectly classifying him as having psychopathic personality disorder or overestimating his risk of reoffending. Therefore, these tools were another example of long-standing discrimination against Indigenous people in the Canadian criminal justice system.
Mr. Ewert argued that the Correctional Service of Canada breached its legal obligation to “take all reasonable steps to ensure that any information about an offender that it uses is accurate, up to date and complete as possible.”
The Supreme Court of Canada agreed, and held that the Correctional Service of Canada did not take reasonable steps to ensure that the tools were free from cultural bias.
In Canada, those who are sentenced for a term of imprisonment of over two years or longer become an inmate of Canada’s federal correctional system. This system seeks to carry out sentences through safe and humane custody, while assisting with rehabilitation and reintegration of offenders into society. In order to carry out this purpose, the Correctional Service of Canada has to make a number of decisions in relation to inmates.
For example, the Correctional Service of Canada assigns offenders with a security classification based on an individual’s risk to public safety, likelihood of escape, and institutional supervision needs. It also develops correctional plans for each inmate in order to ensure they receive the most effective programs to rehabilitate and reintegrate them upon release. Furthermore, it decides whether to recommend an inmate for parole.
Given the central role these decisions play in the Correctional Service of Canada performing its function and effectively assisting inmates, Canadian law had established a legal obligation on them to “take all reasonable steps to ensure that any information about an offender that it uses is accurate, up to date and complete as possible.” (section 24(1) of the Corrections and Conditional Release Act)
In Canada, there has been long-term and widespread concern over systemic discrimination experienced by Indigenous people in the correctional system. For example, Indigenous offenders are more likely to receive higher security classifications, to spend more time in segregation, to serve more of their sentence behind bars before first release, to be under-represented in community supervision populations, and to return to prison on revocation of parole.
This forms the backdrop to this case. Mr. Ewert, who identified as Métis, was convicted of murder and attempted murder for sexually assaulting and strangling two women. He had been serving two consecutive life sentences at the time of the case.
He challenged the use of five psychological and actuarial risk assessment tools used by the Correctional Service of Canada:
Hare Psychopathy Checklist-Revised: a tool used to assess presence of psychopathy, but also used to assess risk of recidivism;
Violence Risk Appraisal Guide: an actuarial tool designed to assess risk of violent recidivism;
Sex Offender Risk Appraisal Guide: an actuarial tool designed to assess sex offender risk of recidivism;
Static-99: actuarial tool designed to estimate the probability of sexual and violent recidivism;
Violence Risk Scale – Sex Offender: a rating scale designed to assess the risk of sexual recidivism used in the context of sex offender treatment.
These tools had been used to make a number of decisions in relation to Mr. Ewert, including whether he should be recommended for parole, his security classification and in denying requests for escorted leave from incarceration. He raised concerns that the validity of these tools, when applied to Indigenous offenders, had not been established through empirical research. He was concerned that, as a result of cultural bias, these tools incorrectly identified him as having psychopathic personality disorder or overestimated his risk of reoffending.
The Correctional Service of Canada had been aware of such concerns since 2000, but never conducted research into them.
Therefore, he argued, the Correctional Service of Canada was in breach of its obligation under section 24(1) of the Corrections and Conditional Release Act.
Section 24(1) of the Corrections and Conditional Release Act
The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible.
The Supreme Court of Canada had to consider two things:
1. whether results generated by the tools were the type of information (i.e. “any information about an offender”) covered by section 24(1) of the CCRA, and
2. whether the Correctional Service of Canada took sufficient steps to ensure the accuracy of that information.
“Any information about an offender”
The government tried to argue that the provision should only apply to information collected and recorded about an offender, not the output of the tools. However, the Supreme Court noted that the outputs of the tools were themselves “information about the offender.” Furthermore, the Correctional Service of Canada used these outputs to make various decisions in relation to the offender.
The Supreme Court not only took into account the explicit wording of the provision in deciding that the outputs of the tools fell within the definition, it also looked at the context and purpose of the law.
It noted that having accurate information about an offender’s psychological needs and the risk they pose, which were what the outputs related to, was important for the Correctional Service of Canada to carry out its purpose and to protect society.
The court noted the government’s claim that the tools were important because the “information derived from them is objective and thus mitigates for bias in subjective clinical assessments.” The court reasoned that if they are considered useful because they are scientifically validated, this only made it more vital that the Correctional Service of Canada took reasonable steps to ensure that the information produced was accurate.
The government also tried to argue that the terms “accurate” or “inaccurate” cannot be used to describe the results produced by these tools. Instead they have “different levels of predictive validity, in the sense that they predict poorly, moderately well or strongly.” The court reasoned that the obligation under section 24(1) was worded in a general, rather than technical, way. Therefore “as accurate… as possible” may be understood in this context to mean that the Correctional Service of Canada should take steps to ensure that they relied on test scores that predict risks strongly rather than those that do so poorly.
All reasonable steps to ensure accuracy
To demonstrate a breach of the obligation under section 24(1), Mr. Ewert did not have to prove that the tools themselves produced inaccurate results. Instead, the question was whether the Correctional Service of Canada took “all reasonable steps” to ensure the accuracy, currency and completeness of the information it had. The court reasoned that this may require showing that there was some reason for the Correctional Service of Canada to doubt the accuracy of information in their possession about an offender, but it did not require proof of actual inaccuracy.
The court noted that what constitutes “all reasonable steps” can vary from context to context. However, in this particular case, despite being aware of concerns regarding the tools exhibiting cultural bias, the Correctional Service of Canada did not take any action to confirm the validity of the tools. Furthermore, it had continued to use them in relation to Indigenous offenders.
The Supreme Court recognised that correctional policies, programs and practices must respect cultural differences and be responsive to the special needs of Indigenous peoples. In fact, it was a guiding principle applicable to the Correctional Service of Canada under law that they ensure “correctional policies, programs and practices respect gender, ethnic, cultural and linguistic differences and are responsive to the special needs of women, aboriginal peoples, persons requiring mental health care and other groups.”
According to the Supreme Court, to meet this guiding principle, the Correctional Service of Canada, at a minimum, had to address the “long-standing, and credible, concern that continuing to use the impugned risk assessments in evaluating Indigenous inmates perpetuates discrimination and contributes to the disparity in correctional outcomes between Indigenous and non-Indigenous offenders.” In fact, such steps had to be taken regardless of how neutral these tools may have appeared to be.
The Supreme Court found that the Correctional Service of Canada breached its obligations under the law by failing to take all reasonable steps to ensure the accuracy of the results generated by the impugned tools when applied to Indigenous offenders. In reaching this conclusion, it took account of the fact that they failed to inquire into the validity of the tools despite credible concerns raised, and the fact the tools were used for a variety of purposes and in particular areas in which Indigenous inmates faced discrimination (e.g. security classifications).
The Supreme Court did not define with precision what steps would have to be taken in relation to the tools to comply with section 24(1) of the Corrections and Conditional Release Act. Nonetheless, it noted that, at a minimum, it required research into whether and to what extent the tools were subject to cross-cultural variance when applied to Indigenous offenders. Depending on the outcome of that research, it may have been necessary to cease using the tools. Alternatively, the use of the tools would have had to have been qualified or modified in a way that ensured that Indigenous inmates were not prejudiced.
A declaration that the Correctional Service of Canada breached its obligations under s 24(1) of the Corrections and Conditional Release Act.