Over the span of a week and a half, myself and several of my colleagues in the senate had the privilege and responsibility of visiting with men and women inside three of British Colombia’s federal prisons.

We met with people from all walks of life. We saw women who much like so many of us, missed seeing their children and their families over the past year and a half. We spoke with men who were frustrated with the lack of attention to and acknowledgement of their lived realities both inside and outside prison. We heard from prison staff, many of whom can clearly identify the root systemic issues which prevent prisons from providing rehabilitation but feel afraid, ill-equipped or otherwise unable to address them.

One of the many fundamental institutional flaws which was laid bare during our visits is how the Correctional Service of Canada (CSC) determines the security risk of a prisoner. At the center of this flawed practice is the racial and gendered bias it has been proven to employ.

The security-risk assessment of a prisoner is a process of quantitative testing methods intended to identity who poses the greatest risk to public safety.

According to CSC, an initial Security classification of maximum security is determined based on the prisoner in question:

presenting a high probability of escape and a high risk to the safety of the public in the event of escape, or requiring a high degree of supervision and control within the penitentiary;

Maximum security institutions aim to prepare inmates for medium security. This is done through programs as well as employment and educational activities. [1]

CSC’s mandate also refers to maximum-security as being an avenue whereby prisoners can prepare to cascade down to medium-security, in practice this is an increasingly difficult transition to access.

A medium security placement signals a prisoner is:

presenting a low to moderate probability of escape and a moderate risk to the safety of the public in the event of escape, or requiring a moderate degree of supervision and control within the penitentiary;

Finally, a minimum-security assessment deems the prisoner to be

presenting a low probability of escape and a low risk to the safety of the public in the event of escape requiring a low degree of supervision and control within the penitentiary.

A prisoner’s risk assessment has significant and far-reaching implications for virtually every aspect of their imprisonment. Ranging from where they are imprisoned to which programs and educational opportunities are afforded to them and perhaps most importantly, their chances of becoming eligible for release into the community. In general, the higher the security classification, the fewer programs and educational opportunities available. This is a bit counterintuitive, as completion of said programs are prerequisites to lower security placements.

Nowhere are the failures of this process more evident however than in their application to women and racialized prisoners, especially those who are Black and Indigenous. For these prisoners the chances of ‘earning’ a lower security classification too often range from remote to dismal.

Indeed, according to 2014 findings in reports from CSC’s research development team, the Static Factors Assessment, one of the strategies used to analyze and assess an Indigenous prisoner’s risk, as well as their eligibility for community reintegration, was only slightly more accurate than a coin flip.

Zed Ordman, a parole officer and regional vice-president of the Union of Safety and Justice Employees, underscores this striking sentiment:

“I don’t think these tests were designed for women, Indigenous people or probably other visible minorities,” says Mr. Ordman, who has spent a decade with the CSC at Bowden Institution, a medium-security facility near Red Deer, Alta., where he has administered many of these assessments himself. “They want a rigid tool that would apply to everybody.”

The tests simply can’t account for people’s drastically different experiences and upbringings, he says.

“If you grow up on a reserve with high crime, high fetal alcohol syndrome, high abuse, high historical socio-economic issues – well, maybe the person actually isn’t that bad, right?”[2]

None of these issues are new.

In April of 2000, Mr. Jeffrey Ewert, a Metis man in his 50s who had been imprisoned in Canada since 1984, raised the issue of CSC’s security classification tools being unfair to Indigenous prisoners.

Like so many men and women inside, Mr. Ewert was feeling desolate about his constant and unrelenting classification as a high-security risk, in spite of completing programs and using every resource at his disposal to demonstrate his improved character and behaviour.

Mr. Ewert began by filing grievances, effectively complaints to an internal review body. CSC responded to these grievances and agreed with the argument that such tool’s validity has not been “cross-culturally” proven. CSC went on to commit to seeking a follow-up opinion from an independent outside body. However, CSC failed to both seek the consultation, as well as prove the test’s validity. Five years later, in 2005, when Mr. Ewert followed up his grievance, he was once again told by CSC that it was undertaking a review of the assessment tests being used for prisoner security classifications and as such, could take no further action until the said review was completed.

Unsatisfied with the inaction of CSC on this matter, Mr. Ewert took the matter to the Federal Court – Ewert v Attorney General of Canada and the Commissioner of the Correctional Service of Canada.[3]

The case was dismissed by the Federal Court and the Federal Court of Appeal, but  Mr. Ewert did not give up. By 2015, CSC had still not conducted the research it had committed to undertake during the 2007 Federal Court case. This time, the Federal court was no longer assuaged by CSC’s empty promises to take action in the future and deemed it unacceptable that CSC continued to use tests that were not appropriate for Indigenous prisoners. The presiding judge, Justice Phelan was so adamant about his ruling that he mandated CSC to conduct the research it had long ago agreed to undertake. Further, Justice Phelan forbid CSC from using the risk assessment tools at issue on Ewert until they could prove their validity.

In 2016, the government swiftly and successfully appealed with the Federal Court of Appeals (FCA) on the grounds that Ewert had not provided sufficient evidence that the tests produced false results and conclusions. As result, the rulings to study the tools and to not use them on Mr. Ewert were both overturned.

Effectively, the FCA ruled that Ewert could not sufficiently argue his case until CSC had completed its own study of the very tools he was arguing were invalid.

However, in 2018, in a landmark decision, the 7 of 9 Justices of the Supreme Court of Canada (SCC) rejected the FCA’s ruling. In his written decision, now-Chief Justice Wagner clearly stated that the CSC had not met its Statutory Duty set forth in S. 24(1) of its mandate. In this instance, they had not taken “all reasonable steps” in order to ensure their testing procedure with relation to security classification was accurate, current and complete in its assessment of all prisoners. The decision placed an emphasis on the specific consideration of a prisoner’s “gender, ethnic, cultural, and linguistic differences as well as to the special needs of women, aboriginal peoples, persons requiring mental health care and other groups”[4].

In spite of this ruling and Ewert’s clear victory, the grave injustices of CSC’s security classification tools persist.

Stephen Hart, a professor of clinical forensic psychology at Simon Fraser University and a globally recognized expert on the development of risk assessment tools is unequivocal when he says:

“the CSC has been “willfully blind” to the problems for a very long time. The CSC “knows, has known, and ought to know now that this is a real problem,”

“To this day, it’s still giving excuses about why they’re not doing that work and honouring that commitment,”[5]

I am proud to say that in the Senate, we have been trying to change this. In 2019, the government introduced Bill C-83 An Act to amend the Corrections and Conditional Release Act. Among several of the senate’s amendments to the bill, was one which would have required CSC to implement a new method for classifying prisoners’ security risks, to particularly remedy the manner in which current tools detrimentally impact women, Black, Indigenous and other racialized people. Unfortunately, these amendments were rejected by the government. Consequently, these outdated and unlawful approaches persist.

Just last week, our visits to three prisons provided blatant and graphic reminders of the over-classification as well as the overrepresentation of Indigenous Peoples.

At Fraser Valley Federal Prison for women, 89% of all women in maximum security are Indigenous. At Kent Federal Institution, the only maximum-security prison for men in the Pacific region, 36.6% of men in the prison are Indigenous. Conversely, Indigenous Peoples account for under 5% of the demographic composition in Canada.[6]

In the words of the Correctional Investigator, Ivan Zinger:

“Corrections has to develop tools from the ground up using Indigenous, Black or women’s samples, to make sure the tools they use bring in the factors that are relevant to that population,”

“The Service should’ve done it a long, long time ago.”

Existing security classification tools used by CSC are as inadequate as they are inaccurate. While a total re-imagining of this tool is a necessary step forward in promoting and upholding the rights of all prisoners in Canada, it cannot be the only consideration. Without a fulsome interrogation of the underlying social, political and economic conditions which result in disproportionate numbers of Indigenous and Black men and women in prisons, any real attempt at systemic change will be unsuccessful. Worse yet, history shows us that continued tinkering will not only perpetuate but will likely exacerbate the long-existing and inherent injustices which occur behind prison walls every single day.

[1] https://www.csc-scc.gc.ca/security/001003-1000-eng.shtml

[2] https://www.theglobeandmail.com/canada/article-investigation-racial-bias-in-canadian-prison-risk-assessments/

[3] http://www.thecourt.ca/ewert-v-canada-improving-prison-processes-for-indigenous-peoples/

[4] https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17133/index.do

[5] https://www.theglobeandmail.com/canada/article-investigation-racial-bias-in-canadian-prison-risk-assessments/#c-image-4

[6] https://www.sac-isc.gc.ca/eng/1602010609492/1602010631711