Proposed class-action suit against Ottawa suggests inmates face systemic bias in risk assessments

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The federal government is facing a proposed class-action lawsuit on behalf of tens of thousands of inmates over systemic bias in its security classifications, which affect inmates’ living arrangements, access to treatment programs and likelihood of getting parole.

Filed on Monday in Federal Court, the proposed suit concerns the Custody Rating Scale, a 12-question risk assessment tool developed by Correctional Service Canada (CSC) in the 1980s and in widespread use since the 1990s.

That test is administered to all inmates when they are first taken into federal custody, and results in a minimum, medium or maximum security score, though it can be overridden by parole officers. Last year, a Globe and Mail investigation found the scores derived from some of Correctional Service Canada’s most important risk tools, including the Custody Rating Scale, were systemically biased against racialized and female inmates.

The statement of claim’s allegations, which have not yet been proven in court, argue the federal government violated both the Corrections and Conditional Release Act and inmates’ rights under the Charter of Rights and Freedoms by using a risk tool it knew to be flawed to classify inmates, leading to harsher security ratings than they would have otherwise received.

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“CSC’s ongoing use of [the Custody Rating Scale] on Indigenous inmates must be recognized as the product of deliberate and conscious race-based discriminatory treatment of Indigenous inmates that resulted in, and continues to result in, longer and harsher prison sentences for Indigenous people, especially Indigenous women,” the statement of claim reads in part.

Security classifications have far-reaching consequences for an inmate’s experience in custody. Depending on their score, inmates can expect decreased movement privileges, less access to treatment programs and difficulty getting paroled.

In brief statements, CSC and Public Safety Canada spokespeople Marie Pier Lécuyer and Mary-Liz Power said the agencies could not comment on the lawsuit because it was before the courts. The Department of Justice, meanwhile, deferred to CSC.

The Globe’s investigation, which controlled for variables such as age, inmates’ criminal history and the severity of their offence, found Black men were about 24 per cent more likely than white men to receive the worst possible security scores at admission. Indigenous men, meanwhile, were roughly 30 per cent more likely than white men to receive the worst reintegration potential score at any point during their sentence, a risk level that plays a large role in parole determinations. The House of Commons public safety committee has since announced a study into bias in prison risk assessments.

The investigation also found Indigenous women were roughly 64 per cent more likely than white women to end up with a maximum security level at admission, and that they were also 42 per cent more likely to end up with the poorest reintegration score.

CSC has stood by its risk tools in previous statements to The Globe and said it regularly conducts research to ensure they’re still reliable.

For close to two decades, reports by federal agencies and academics have raised concerns about racial and gender bias in CSC’s risk assessment tools.

In 2004, researchers at Public Safety Canada were commissioned by the head of CSC to look at whether the Custody Rating Scale was reliable for women. Their report – made public last week by The Globe – lambasted the tool, saying it seemed systemically biased against Indigenous women, and women in general, and that it was not clear the tool worked for men, either.

The proposed class-action lawsuit lists Martha Kahnapace, a 63-year-old Indigenous former inmate, as its representative plaintiff. After being charged in 2005 with second-degree murder after stabbing her then-partner Donald Wall, Ms. Kahnapace spent years in and out of court because of a series of complex appeals before being acquitted of second-degree murder, convicted of manslaughter and sentenced to time served at her third trial in 2014. In between her appeals, Ms. Kahnapace spent extensive periods in medium- or maximum-security facilities because of her overclassification by the Custody Rating Scale, the suit argues.

Vancouver-based civil-rights lawyer Jason Gratl, who filed the class action, will be representing Ms. Kahnapace, who is a member of the Pasqua First Nation in Saskatchewan.

“The essence of the claim,” Mr. Gratl said in an interview, “is that the Custody Rating Scale fails to provide appropriate security classifications for all inmates.”

Mr. Gratl is no stranger to litigating risk assessments – he previously represented Jeffrey Ewert, a federal inmate who challenged the validity of psychological tests used by CSC at the Supreme Court in 2018. During that case, Mr. Ewert successfully argued that several psychological risk tools had not been shown to be reliable with Indigenous inmates. At the time, the Supreme Court ordered CSC to study the issue.

The suit proposes four classes of inmates, all of whom were classified as medium or maximum security by the Custody Rating Scale: female Indigenous inmates, female inmates generally, Indigenous inmates generally and all inmates. Before the suit can proceed, a judge will have to certify the proposed classes.

Given the volume of people assigned a medium or maximum security at admission, the class action could ultimately represent tens of thousands of inmates, Mr. Gratl said. According to CSC data obtained by The Globe through a freedom of information request, from 2013 to 2018, the prison agency admitted an average of 59 Indigenous women each year with medium or maximum security classifications, 140 women, 704 Indigenous people and 2,552 people overall.

Despite many warnings over the years from government agencies and academics, the Custody Rating Scale has not changed in two decades, a fact that points to a “problem of political inaction,” Mr. Gratl said.

A class-action lawsuit and trial could take years, but Mr. Gratl said he is looking to have CSC stop the use of its Custody Rating Scale immediately.

In a letter addressed to CSC commissioner Anne Kelly, Mr. Gratl gave the federal government a deadline of Jan. 25 to stop using the tool on incarcerated Indigenous women. “Should [CSC] refuse this request,” the letter reads, “I am instructed to bring application for injunctive relief.”

“We want to see the system change,” Mr. Gratl told The Globe. “We don’t believe that the Correctional Service Canada will change its behaviour unless it’s compelled to do so by a court of law.”

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