Criminal Law

SCC decision a step toward reducing number of Aboriginals in prison


OTTAWA — The Supreme Court of Canada (SCC) says the federal prison service has failed to ensure its psychological assessment tools are fair to Indigenous inmates.

In a 7-2 decision Wednesday, the high court accepted a prisoner’s challenge of five assessment techniques the Correctional Service of Canada uses to gauge the risk of reoffending and potential for violence.

It effectively means the Correctional Service must review the tools to make certain they are free of cultural bias, or stop using them altogether.

“For the correctional system, like the criminal justice system as a whole, to operate fairly and effectively, those administering it must abandon the assumption that all offenders can be treated fairly by being treated the same way,'' a majority of the court said in its reasons.

The man, who identifies as Metis, alleged the techniques were not proven to be reliable for Indigenous inmates because they were developed and tested on predominantly non-Indigenous subjects.

He claimed that reliance on the tools violated the Corrections and Conditional Release Act, which requires the prison service to “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 man, 56, also contended that use of the tools violated constitutional guarantees of equality and liberty.

Born to a Metis mother and a British father, he was adopted as a baby by a Caucasian family in Surrey, B.C.

Court documents describe his adoptive father as an alcoholic, and his adoptive mother as psychologically unstable and abusive. He was subjected to racism and discrimination both at home and at school.

He has been locked up for more than 30 years in maximum- and medium-security institutions, serving two concurrent life sentences for second-degree murder, attempted murder and escape from custody.

The man became eligible for day parole in 1996 and full parole three years later. However, he has waived his right to each parole hearing.

A Federal Court judge found the prison service had breached the Corrections Act and infringed his Charter right to liberty, but the decision was later overturned — prompting his appeal to the Supreme Court.

Toronto criminal lawyer Jill Presser represented one of the interveners in the matter, the Ontario Criminal Lawyers’ Association.

In an interview with, she says the decision represents a step toward decreasing the over-representation of Canada's First Nations in federal penitentiaries.

Presser, principal of Presser Barristers, notes that the decision says that correctional policies, programs, and practices must respect gender, ethnic, cultural and linguistic differences and must be responsive to the special needs of equity-seeking groups, especially Indigenous people.

She says the SCC has also recognized the limitations of one-size-fits-all predictive data tools.

“Tools developed to assess the risk of future dangerousness, by looking at populations of Caucasian men, may indeed not be predictive of risk in other populations,” Presser says.

“Predictive data may suffer from cultural biases, and there is always the built-in limitation that what is true across groups may not be properly predictive when dealing with individuals.

“Many important questions in relation to the applicability of big data and predictive data in the criminal justice system remain. It is to be hoped that the Supreme Court will engage with those issues as they arise going forward.”

– With files from

© 2018 The Canadian Press

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