Kahnapace v. Canada (Attorney General)

Kahnapace v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2023-01-11
Neutral citation
2023 FC 32
File numbers
T-88-21
Decision Content
Date: 20230111
Docket: T-88-21
Citation: 2023 FC 32
Ottawa, Ontario, January 11, 2023
PRESENT: The Honourable Madam Justice Aylen
PROPOSED CLASS PROCEEDING
BETWEEN:
MARTHA KAHNAPACE AND AILEEN MICHEL
Plaintiffs
and
THE ATTORNEY GENERAL OF CANADA
Defendant
ORDER
[1] The Court has before it a motion brought by the Plaintiffs pursuant to section 334.12 of the Federal Courts Rules, SOR/98-106, seeking certification of the present action as a class action and the appointment of the Plaintiffs as the representative plaintiffs.
[2] The Plaintiffs advance this proposed class action on behalf of all Indigenous female offenders who are or have been in the custody of the Correctional Service of Canada [CSC] since 1991. The Plaintiffs allege that CSC employs a tool called the Custody Rating Scale [CRS] to determine the security classification of inmates (minimum, medium or maximum security) that improperly overclassifies Indigenous female offenders into higher security classifications than otherwise warranted. This in turn results in a deprivation of residual liberty and ineligibility for discretionary release and parole. The Plaintiffs assert that CSC has been aware since as early as 2004 that the CRS overclassifies certain inmates, but continues to use the CRS in breach of various provisions of the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA] and sections 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11 [Charter].
[3] The Plaintiffs also assert that use of other tools (the Static Factor Assessment [SFA], the Dynamic Factor Identification and Analysis - Revised [DFIA-R] and the Reintegration Potential [RP]) in the offender intake assessment [OIA] process (which process is used to assess and gather information regarding an offender before determining their security classification and penitentiary placement) breaches section 79.1 of the CCRA by: (a) incorporating factors that relate to historical and colonial oppression of Indigenous people in Canada (also known as Indigenous social history factors or Gladue factors); and (b) improperly causing the scoring of such factors to be used in a manner that increases an offender’s risk and resulting security classification.
[4] The Plaintiffs seek general damages, special damages, exemplary and punitive damages and Charter damages, together with various forms of declaratory relief (including declarations that CSC’s use of the CRS, SFA, DFIA-R and RP is contrary to section 79.1 of the CCRA) and an injunction preventing CSC from using the CRS, SFA, DFIA-R and RP tools in respect of prospective class members.
[5] The Defendant opposes the motion in its entirety, asserting that the Plaintiffs have failed to meet all five criteria required for certification as prescribed by Rule 334.16 of the Federal Courts Rules.
[6] The crux of the Defendant’s position is that the Plaintiffs’ case rests on a misapprehension of the challenged tools and assessments and the role that they play in initial security classification decisions and correctional planning. The Defendant asserts that the evidence clearly demonstrates that the recommendation generated by the CRS is not determinative of the offender’s security classification. Rather, the OIA process, which culminates in a security classification and penitentiary placement decision, is a multifactorial and highly individualized process involving assessments and test results, the exercise of discretion and the reliance on clinical and professional judgment. While parole officers conducting the assessment are given structured guidance as to what information to collect about offenders and how to administer standardized tools (which includes the CRS), the Defendant asserts that the parole officers and thereafter the Warden (who is the ultimate decision maker) also exercise their professional judgement, taking into consideration the totality of the information collected in making their respective security classification recommendations and decisions that are responsive to the history, circumstances, needs and risks posed by each individual offender.
[7] Moreover, the Defendant asserts that while the SFA, DFIA-R and RP assessments form part of the information gathered in the OIA process, they are primarily used to determine the appropriate interventions, not security classification. The Defendant further denies that the presence of Indigenous social history factors impacts these assessments, resulting in higher security classifications contrary to section 79.1 of the CCRA.
[8] With respect to the test for certification, the Defendant asserts that: (a) the Plaintiffs have failed to plead any reasonable cause of action; (b) the proposed class and subclasses are overly broad, include time-barred claims and are not rationally connected to genuinely common issues; (c) the proposed common issues regarding the CRS and other tools cannot be determined on a class-wide basis, as each offender’s security classification would have to be individually examined to determine the basis for the classification and whether the use of the challenged tools resulted in a breach of the offender’s Charter rights entitling them to a remedy; (d) as the issues inevitably require individual examination, a class proceeding is not an efficient or manageable way to adjudicate the issues; and (e) Ms. Kahnapace does not meet the test for an appropriate representative and the proposed litigation plan has significant deficiencies.
[9] For the reasons that follow, I find that: (a) the Third Amended Statement of Claim does not disclose a reasonable cause of action; (b) numerous individual issues overwhelm the common issues and the common issues are intrinsically individualistic; (c) a class proceeding is not the preferable procedure for the just and efficient resolution of the common questions; (d) Ms. Kahnapace would not fairly and adequately represent the interests of the class and subclasses; and (e) the Plaintiffs have not prepared a plan for the proceeding that sets out a workable method of advancing the action. Accordingly, the certification motion shall be dismissed.
I. Background
A. Evidence on the Motion
[10] The evidentiary record before the Court on this motion was extensive. The Plaintiffs filed the following affidavits in support of their motion:
Affidavit of Ms. Kahnapace affirmed September 30, 2021;
Affidavit of Ms. Michel affirmed August 8, 2022;
Affidavit of Dr. R. Karl Hanson affirmed May 21, 2021;
Affidavit of Dr. Stephen Hart affirmed May 27, 2021 (expert opinion);
Affidavit of Dr. Stephen Hart affirmed August 23, 2021 (expert opinion);
Affidavit No. 1 of Jodi Kaldestad, paralegal to counsel for the Plaintiffs, affirmed May 27, 2021;
Affidavit No. 2 of Jodi Kaldestad affirmed May 27, 2021;
Affidavit No. 3 of Jodi Kaldestad affirmed May 27, 2021;
Affidavit No. 4 of Jodi Kaldestad affirmed September 30, 2021;
Affidavit No. 1 of Shauna Stewart, paralegal to counsel for the Plaintiffs, affirmed April 8, 2022; and
Affidavit No. 2 of Shauna Stewart affirmed June 17, 2022.
[11] The Defendant filed the following affidavits in response to the motion:
Affidavit of Katherine Belhumeur, Director of the Reintegration Operations Division within the Correctional Operations and Programs Sector for CSC, sworn July 21, 2021;
Affidavit of Dr. Larry Motiuk, Assistant Commissioner Policy with CSC, affirmed July 21, 2021;
Affidavit of Dr. Larry Motiuk sworn January 26, 2022;
Affidavit of Michael Hayden, Manager, Statistical Analysis in the Policy Sector of CSC, affirmed July 21, 2021;
Affidavit of Michael Hayden affirmed September 28, 2021;
Affidavit of Dr. Mark Olver (expert report) affirmed July 22, 2021;
Affidavit of Dr. Mark Olver (expert report) affirmed October 19, 2021;
Affidavit of Marty Maltby, Acting Director General, Indigenous Initiatives Directorate at CSC, affirmed July 21, 2021;
Affidavit of Brigitte Bouchard, Acting Director General of the Women Offender Sector and Director of the Montreal Metropolitan District for CSC, sworn January 27, 2022;
Affidavit No. 1 of Attila Turi, Acting Warden for Fraser Valley Institute for Women operated by CSC, affirmed January 27, 2022;
Affidavit No. 2 of Attila Turi affirmed January 27, 2022;
Affidavit No. 3 of Attila Turi affirmed May 18, 2022; and
Affidavit of Ariyana Pirmohamed, legal assistant to counsel for the Defendant, sworn October 7, 2022.
[12] Extensive documentation was filed in relation to each of the proposed representative plaintiffs, Ms. Kahnapace and Ms. Michel. In relation to Ms. Kahnapace, the Court had before it, in addition to her affidavit, the following documentation related to her incarceration and her security classification determinations:
Indictment dated July 31, 2007;
Warrant Remanding a Prisoner dated September 26, 2007;
Sentencing transcript from September 2007;
Warrant of Committal upon Conviction dated September 27, 2007;
Preliminary Assessment Report dated October 3, 2007;
Custody Rating Scale dated October 4, 2007;
Offender Admission Form dated October 16, 2007;
Letter dated assigning Ms. Kahnapace’s case management team dated October 17, 2007;
Community Assessment dated October 26, 2007;
Family Violence Risk Assessment dated December 11, 2007;
Criminal Profile Report dated January 14, 2008;
Correctional Plan Report dated January 14, 2008;
Assessment for Decision – Offender Security Level dated January 14, 2008;
Intake Assessment dated February 4, 2008;
Referral for Decision – Offender Security Level dated March 4, 2008;
Final Security Classification Decision made by the Regional Deputy Commissioner dated March 4, 2008;
Warden’s memo to file re: security classification dated March 6, 2008;
First level maximum security classification grievance dated July 9, 2008 and response thereto;
Third level security classification grievance dated July 21, 2008 and response thereto;
Grievance coordinator’s letter dated July 23, 2008;
Notice of Application for Judicial Review in T-89-09 regarding her security classification grievance decision;
Individual Education Plan dated November 10, 2008;
Offender Grievance Response dated November 14, 2008;
Kahnapace v AGC, 2009 FC 1246;
First level two-year review grievance presentation and response thereto dated October 2009;
Second level two-year review grievance and response thereto;
Security Reclassification Scale for Women dated January 5, 2010;
Assessment for Decision – Offender Security Level dated January 7, 2010;
Referral Decision Sheet dated February 25, 2010;
Classification Decision dated February 25, 2010;
2010 decision of the British Columbia Court of Appeal;
Notice of Inmate’s Release dated May 20, 2010;
Kahnapace v Canada (Attorney General), 2010 FCA 281;
Indictment dated March 18, 2011;
Sentencing transcript dated June 29, 2011;
Warrant of Committal Upon Conviction dated June 29, 2011;
Preliminary Assessment Report dated July 5, 2011;
Custody Rating Scale dated July 5, 2011;
Inmate complaint presentation to reinstate her 2009 two-year grievance dated July 18, 2011;
Offender Admission Form dated July 21, 2011;
Substance Abuse Assessment Summary completed July 21, 2011;
Third level grievance dated July 27, 2011 and response thereto;
Individual Education Plan dated July 29, 2011;
Assessment for Decision – Offender Security Level dated August 18, 2011;
Referral Decision Sheet for Offender Security Level dated August 22, 2011;
Approval for the Pathways Unit as of August 23, 2011;
Elder Review Report dated August 25, 2011;
Static Factor Assessment Report dated August 30, 2011;
Dynamic Factor Assessment Report dated August 31, 2011;
Criminal Profile dated September 2, 2011;
Correctional Plan dated September 2, 2011;
Sentencing Transcript dated September 27, 2011;
BC Court of Appeal Order for Release pending appeal dated June 14, 2012;
Notice of Inmate Release dated June 15, 2012;
Sentencing decision dated January 2013;
R v Kahnapace, 2014 BCSC 2410; and
Sentencing transcript dated March 20, 2014.
[13] In relation to Ms. Michel, the Court had before it, in addition to her affidavit, the following documentation related to her incarceration and her security classification determinations:
Amended Warrant of Committal Upon Conviction dated November 8, 2022;
Indictment dated August 10, 2000;
British Columbia Superior Court Oral Reasons for Judgment dated March 2, 2001;
Warrant of Committal Upon Conviction dated March 2, 2001;
Custody Rating Scale dated February 18, 2003;
Assessment for Decision – Offender Security Level dated March 6, 2003;
Correctional Plan dated March 6, 2003;
Intake Assessment dated March 6, 2003;
Offender Security Level – Referral Decision Sheet dated March 6, 2003;
Correctional Plan Progress Report No. 1 dated October 6, 2003;
Assessment for Decision – Offender Security level dated November 26, 2003;
Offender Security Level – Referral Decision Sheet dated March 1, 2003;
Assessment for Decision – Offender Security Level dated February 4, 2005;
Offender Security Level – Referral Decision Sheet dated February 25, 2005;
Correctional Plan Progress Report No. 5 dated October 14, 2005;
Assessment for Decision – Offender Security Level dated March 27, 2006;
Offender Security Level – Referral for Decision Sheet dated March 30, 2006;
National Parole Board Decision dated May 25, 2006;
Correctional Plan Progress Report No. 10 dated November 2, 2006;
Correctional Plan Progress Report No. 11 dated December 1, 2006;
National Parole Board Decision dated January 8, 2007;
National Parole Board Decision dated January 24, 2007;
Correctional Plan Progress Report No. 12 dated April 17, 2007;
Correctional Plan Progress Report No. 13 dated May 14, 2007;
Assessment for Decision – Offender Security Level dated June 8, 2007;
Referral Decision Sheet – Offender Security Level dated June 27, 2007;
National Parole Board Decision dated September 28, 2007;
National Parole Board Decision dated March 20, 2008;
Correctional Plan Progress Report No. 14 dated June 13, 2008;
Assessment for Decision – Offender Security level dated July 4, 2008;
Custody Rating Scale dated July 7, 2008;
Referral Decision Sheet – Offender Security level dated July 7, 2008;
Assessment for Decision – Offender Security Level dated November 26, 2008;
Referral Decision Sheet – Offender Security level dated December 11, 2008;
Correctional Plan Progress Report No. 15 dated September 10, 2009;
Correctional Plan Progress report No. 16 dated October 9, 2009;
National Parole Board Decision dated November 27, 2009;
Correctional Plan Update dated June 30, 2010;
National Parole Board Decision dated December 1, 2010;
National Parole Board Decision dated May 19, 2011;
National Parole Board Decision dated November 10, 2011;
National Parole Board Decision dated May 24, 2012;
Correctional Plan Updated dated July 20, 2012;
Parole Board of Canada Decision dated November 20, 2012;
Correctional Plan Updated dated February 20, 2013;
Parole Board of Canada Decision dated May 31, 2013;
Assessment for Decision – Offender Security Level dated July 26, 2013;
Custody Rating Scale dated July 26, 2013;
Referral Decision Sheet – Offender Security Level dated July 30, 2013;
Parole Board of Canada Decision dated October 17, 2013;
Correctional Plan Updated dated October 25, 2013;
Correctional Plan Updated dated November 12, 2013;
Custody Rating Scale dated December 31, 2013;
Referral Decision Sheet – Offender Security Level dated January 8, 2014;
Parole Board of Canada Decision dated April 2, 2014;
Assessment for Decision – Offender Security Level dated May 18, 2015;
Referral Decision Sheet – Offender Security Level dated June 4, 2015;
Parole Board of Canada Decision dated September 24, 2015;
Correctional Plan Updated dated February 16, 2016;
Parole Board of Canada Decision dated March 2016;
Correctional Plan Updated dated July 22, 2016;
Parole Board of Canada Decision dated August 30, 2016;
Correctional Plan Updated dated November 24, 2016;
Custody Rating Scale dated September 18, 2017;
Assessment for Decision – Offender Security Level dated September 25, 2017;
Referral Decision Sheet – Offender Security Level dated September 25, 2017;
Correctional Plan Updated dated May 4, 2018;
Parole Board of Canada Decision dated June 7, 2018;
Correctional Plan Updated dated June 18, 2018;
Custody Rating Scale dated November 14, 2018;
Assessment for Decision – Offender Security Level dated November 16, 2018;
Referral Decision Sheet – Offender Security Level dated November 19, 2018;
Parole Board of Canada Decision dated February 12, 2019;
Assessment for Decision – Offender Security Level dated July 9, 2019;
Referral Decision Sheet – Offender Security Level dated July 30, 2019;
Parole Appeal Decision dated August 9, 2019;
Correctional Plan Updated dated December 20, 2019;
Parole Board of Canada Decision dated February 21, 2020;
Correctional Plan Updated dated December 8, 2020;
Parole Board of Canada Decision dated January 29, 2021;
Parole Board of Canada Decision dated May 27, 2021;
Correctional Plan Updated dated July 6, 2021;
Parole Board of Canada Decision dated August 5, 2021;
Full Parole Certificate dated February 18, 2022; and
Parole Board of Canada Decision dated February 18, 2022.
[14] The parties rely on a number of articles and reports related to the CRS and its predictive validity (or lack thereof) for various segments of the offender population, including Indigenous female offenders. These articles and reports included the following:
An article entitled “Classification without Validity or Equity: An Empirical Examination of the Custody Rating Scale for Federally Sentenced Women Offenders in Canada” by Cheryl Marie Webster and Anthony N. Doob published in the Canadian Journal of Criminology and Criminal Justice in July 2004;
An article entitled “Taking Down the Straw Man or Building a House of Straw? Validity, Equity, and the Custody Rating Scale” by Cheryl Marie Webster and Anthony N. Doob published in the Canadian Journal of Criminology and Criminal Justice in October 2004;
An article entitled “Taking Down the Straw Man: A Reply to Webster and Doob” by Kelley Blanchette and Dr. Motiuk published in the Canadian Journal of Criminology and Criminal Justice in October 2004;
Classification for Correctional Programming: The Offender Intake Assessment (OIA) Process;
Report by Frank Porporino, Fred Luciano and Dr. Motiuk entitled “Pilot Implementation of a Custody Rating Scale: Interim Report”;
Report by Joseph Johnston and Dr. Motiuk entitled “Factors Related to Unlawful Walkaways from Minimum Security Institutions”;
Report by Joseph Johnston and Dr. Motiuk entitled “Unlawful Departures from Minimum Security Institutions: A Comparative Investigation”;
Report by Fred Luciani, Dr. Motiuk and Mark Nafekh entitled “An Operational Review of the Custody Rating Scale: Reliability, Validity and Practical Utility”;
Report by Fred Luciani entitled “Tried and True: Proof that the Custody Rating Scale is still reliable and valid”;
Report by Brian Grant and Fred Luciani entitled “Security Classification Using the Custody Rating Scale”;
Report by Fred Luciani entitled “Initiating safe reintegration: A decade of Custodial Rating Scale results”;
Report by Kelley Blanchette, Paul Verbrugge and Cherami Wichmann entitled “The Custody Rating Scale, Initial Security Level Placement, and Women Offenders”;
Report by Renee Gobeil entitled “Use of the Custody Rating Scale with Male Offenders”;
Report by Geoffrey Barnum and Renee Gobeil entitled “Revalidation of the Custody Rating Scale for Aboriginal and non-Aboriginal Women Offenders”;
Report by Sara Rubenfeld entitled “An Examination of a Reweighted Custody Rating Scale for Women”;
Report by Kayla Wanamaker entitled “Risk Factors Related to the Initial Security Classification of Women Offenders: A literature Review”;
CSC Publications RIB-21-03, RIB-21-04, RIB-21-05, and RIB-21-09;
CSC research report entitled “A comprehensive study of recidivism rates among federal offenders”;
Forensic Risk Assessment with Indigenous Peoples: A Systemic Literature Review and Synthesis; and
Forensic Risk Assessment with Indigenous Peoples: A Systemic Literature Review and Synthesis (updated).
[15] The parties placed before the Court numerous Commissioner’s Directives [CD], Policy Bulletins and Guidelines, including:
CD 081 – Offender Complaints and Grievances;
CD 578 – Intensive Intervention Strategy in Women Offender Institutions/Units;
CD 702 – Aboriginal Offenders;
CD 705 – Intake Assessment Process and Correctional Plan Framework;
CD 705-1 – Preliminary Assessments and Post-Sentence Community Assessments;
CD 705-2 – Information Collection;
CD 705-3 – Immediate Needs Identification and Admission Interviews;
CD 705-4 – Orientation;
CD 705-5 – Supplementary Assessments;
CD 705-6 – Correctional Planning and Criminal Profile;
CD 705-7 – Security Classification and Penitentiary Placement;
CD 706 – Classification of Institutions;
CD 710-3 – Temporary Absences;
CD 710-6 – Review of Inmate Security Classification;
CD 726 – Correctional Programs;
CD 70502 - Supplementary Intake Assessments;
Guideline 702-1 – Establishment and Operation of Pathways Initiatives;
Guideline 710-2-1 – CCRA Section 81: Transfers;
Policy Bulletin 107 entitled Security Classification of Offenders Serving a Minimum Life Sentence for First or Second Degree Murder;
December 10, 2007 memorandum from the Assistant Commissioner, Correctional Operations and Programs, Ross Toller, to the Regional Deputy Commissioner regarding initial penitentiary placement of inmates serving a minimum life sentence for first or second degree murder;
Policy Bulletins and Interim Policy Bulletins 194, 202, 607, 648, 650 and 677; and
Standard Operating Practices 700-14.
[16] A number of affiants were cross-examined, some over multiple days or on multiple occasions. The Court had before it the following transcripts:
Cross-examination of Katherine Belhumeur on October 20, 2021;
Cross-examination of Dr. Motiuk held October 21, 2021 and exhibits 1-3 thereto;
Continuation of the cross-examination of Dr. Motiuk held November 4, 2021 and exhibit 4 thereto;
Cross-examination of Michael Hayden held October 22, 2021;
Cross-examination of Marty Malby held October 22, 2021 and exhibits 1-4 thereto;
Cross-examination of Dr. Hanson held October 25, 2001 and exhibit 1 and A thereto;
Cross-examination of Dr. Olver held October 26, 2021 and exhibit 1 thereto, together with the amended transcript;
Continuation of the cross-examination of Dr. Olver held October 27, 2021 and exhibit 2 thereto, together with the amended transcript;
Cross-examination of Dr. Hart held November 2, 2021 and exhibits 2-3 thereto;
Cross-examination of Brigitte Bouchard held March 3, 2022;
Cross-examination of Dr. Motiuk held March 9, 2022;
Cross-examination of Attila Turi on March 11, 2022;
Cross-examination of Attila Turi on May 27, 2022;
Cross-examination of Ms. Kahnapace held March 30, 2022; and
Cross-examination of Ms. Michel held October 5, 2022.
[17] The Plaintiffs also placed before the Court the following reports, publications and bulletins:
2016 Fall Report of the Auditor General of Canada: Report 3 – Preparing Indigenous Offenders for Release – Correctional Service of Canada;
Report of the House of Common Standing Committee on the Status of Women released June 2018 entitled “A Call to Action: Reconciliation with Indigenous Women in the Federal Justice and Correctional Systems”;
Report of the House of Commons Standing Committee on Public Safety and National Security released June 2018 entitled “Indigenous People in the Federal Correctional System”;
Publication of Public Safety Canada entitled “Corrections and Conditional Release Statistical Overview 2019 Annual Report: Building a Safe and Resilient Canada”;
Report published by CSC (Evaluation Division, Policy Sector) in November 2012 entitled “Evaluation Report: The Strategic Plan for Aboriginal Corrections”;
Bulletin published by CSC in September 2017 entitled “Indigenous Offenders: Major Findings from the DFIA-R Research Studies”;
Print out of interlinked web pages published by CSC entitled “Indigenous Corrections”; and
Document published by CSC entitled “Response to the 46th Annual Report of the Correctional Investigator 2018-2019”.
[18] For the purpose of this motion, I do not need to determine the weight or credibility of any of the evidence and no admissibility issues were raised regarding the expert evidence.
[19] The Defendant did raise an issue regarding the admissibility of the report from the Auditor General, the House of Commons Standing committee reports and a CSC response to a report from the Correctional Investigator. The Defendant asserts that these reports are not admissible for the truth of their content and cannot be used to demonstrate that any cause of action asserted by the Plaintiffs is reasonable. Rather, the Defendants assert that these reports can only be used for the limited purpose of putting the facts pleaded into context. The Plaintiffs did not make any submissions on this issue.
[20] I am satisfied that nothing on this motion turns on the contested reports. Moreover, the Court’s consideration of whether the Third Amended Statement of Claim discloses a reasonable cause of action is limited to a consideration of the pleading alone.
B. Relevant Statutory Provisions
[21] Section 3 of the CCRA provides:
The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and
(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
Le système correctionnel vise à contribuer au maintien d’une société juste, vivant en paix et en sécurité, d’une part, en assurant l’exécution des peines par des mesures de garde et de surveillance sécuritaires et humaines, et d’autre part, en aidant au moyen de programmes appropriés dans les pénitenciers ou dans la collectivité, à la réadaptation des délinquants et à leur réinsertion sociale à titre de citoyens respectueux des lois.
[22] Parliament directs CSC to achieve the purposes set out in section 3 through the principles set out in sections 3.1 and 4, which include the principles that: (a) the protection of society be the paramount consideration in the corrections process; (b) CSC use the least restrictive measures consistent with the protection of the public, staff members and offenders; (c) CSC ensure the effective delivery of programs to offenders, including correctional, educational, vocational training and volunteer programs, with a view to improving access to alternatives to custody in a penitentiary and to promoting rehabilitation; and (d) correctional policies, programs and practices respect gender, ethnic, cultural, religious and linguistic differences, sexual orientation and gender identity and expression, and are responsive to the special needs of women, Indigenous persons, visible minorities, persons requiring mental health care and other groups.
[23] The principle of "least restrictive measures" is echoed in the language of section 28 of the CCRA, which provides:
If a person is or is to be confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which they are confined is one that provides them with the least restrictive environment for that person, taking into account
(a) the degree and kind of custody and control necessary for
(i) the safety of the public,
(ii) the safety of that person and other persons in the penitentiary, and
(iii) the security of the penitentiary;
(b) accessibility to
(i) the person’s home community and family,
(ii) a compatible cultural environment, and
(iii) a compatible linguistic environment; and
(c) the availability of appropriate programs and services and the person’s willingness to participate in those programs.
Le Service doit s’assurer, dans la mesure du possible, que le pénitencier dans lequel est incarcéré le détenu constitue un milieu où seules existent les restrictions les moins privatives de liberté pour celui-ci, compte tenu des éléments suivants :
a) le degré de garde et de surveillance nécessaire à la sécurité du public, à celle du pénitencier, des personnes qui s’y trouvent et du détenu;
b) la facilité d’accès à la collectivité à laquelle il appartient, à sa famille et à un milieu culturel et linguistique compatible;
c) l’existence de programmes et de services qui lui conviennent et sa volonté d’y participer ou d’en bénéficier.
[24] Section 30 of the CCRA requires CSC to assign a security classification of maximum, medium, or minimum to each inmate in accordance with regulations. The CCRA contemplates broad delegation of legislative power in respect of inmate placement and the elaboration of crucial operational detail in two ways - regulations and Commissioner's Rules and Directives.
[25] Section 96(d) of the CCRA provides that the Governor in Council may make regulations "respecting the placement of inmates pursuant to section 28". Pursuant to this provision, the Corrections and Conditional Release Regulations, SOR/92-620 [Regulations] were enacted. Of particular relevance to inmate placement are sections 17 and 18 of the Regulations, which provide:
17. For the purposes of section 30 of the Act, the Service shall consider the following factors in assigning a security classification to each inmate:
(a) the seriousness of the offence committed by the inmate;
(b) any outstanding charges against the inmate;
(c) the inmate’s performance and behaviour while under sentence;
(d) the inmate’s social, criminal and, if available, young-offender history and any dangerous offender designation under the Criminal Code;
(e) any physical or mental illness or disorder suffered by the inmate;
(f) the inmate’s potential for violent behaviour; and
(g) the inmate’s continued involvement in criminal activities.
17. Pour l’application de l’article 30 de la Loi, le Service attribue une cote de sécurité à chaque détenu en tenant compte des éléments suivants :
a) la gravité de l’infraction commise par le détenu;
b) toute accusation en instance contre lui;
c) son rendement et sa conduite pendant qu’il purge sa peine;
d) ses antécédents sociaux et criminels, y compris ses antécédents comme jeune contrevenant s’ils sont disponibles et le fait qu’il a été déclaré délinquant dangereux en application du Code criminel;
e) toute maladie physique ou mentale ou tout trouble mental dont il souffre;
f) sa propension à la violence;
g) son implication continue dans des activités criminelles.
18. For the purposes of section 30 of the Act, an inmate shall be classified as
(a) maximum security where the inmate is assessed by the Service as
(i) presenting a high probability of escape and a high risk to the safety of the public in the event of escape, or
(ii) requiring a high degree of supervision and control within the penitentiary;
(b) medium security where the inmate is assessed by the Service as
(i) presenting a low to moderate probability of escape and a moderate risk to the safety of the public in the event of escape, or
(ii) requiring a moderate degree of supervision and control within the penitentiary; and
(c) minimum security where the inmate is assessed by the Service as
(i) presenting a low probability of escape and a low risk to the safety of the public in the event of escape, and
(ii) requiring a low degree of supervision and control within the penitentiary.
18. Pour l’application de l’article 30 de la Loi, le détenu reçoit, selon le cas :
a) la cote de sécurité maximale, si l’évaluation du Service montre que le détenu :
(i) soit présente un risque élevé d’évasion et, en cas d’évasion, constituerait une grande menace pour la sécurité du public,
(ii) soit exige un degré élevé de surveillance et de contrôle à l’intérieur du pénitencier;
b) la cote de sécurité moyenne, si l’évaluation du Service montre que le détenu :
(i) soit présente un risque d’évasion de faible à moyen et, en cas d’évasion, constituerait une menace moyenne pour la sécurité du public,
(ii) soit exige un degré moyen de surveillance et de contrôle à l’intérieur du pénitencier;
c) la cote de sécurité minimale, si l’évaluation du Service montre que le détenu :
(i) soit présente un faible risque d’évasion et, en cas d’évasion, constituerait une faible menace pour la sécurité du public,
(ii) soit exige un faible degré de surveillance et de contrôle à l’intérieur du pénitencier.
[26] The second broad delegation consists of Commissioner's Rules and Directives. Pursuant to section 6(1) of the CCRA, the Governor in Council may appoint a Commissioner who, under the direction of the Minister of Public Safety and Emergency Preparedness, "has the control and management of [CSC] and all matters connected with the Service". The Commissioner may make rules, under section 97 of CCRA, for: (a) the management of CSC; (b) for matters described in section 4; and (c) generally for carrying out the purposes and provisions of the CCRA and the Regulations. Under section 98 of CCRA, the Commissioner has the power to designate any rules, made pursuant to s. 97, as "Commissioner's Directives".
[27] With respect to inmate programs, section 76 of the CCRA provides that CSC shall provide a range of programs designed to address the needs of offenders and contribute to their successful reintegration into the community. The CCRA provides that CSC must also provide programs designed to particularly address the needs of female offenders (section 77) and Indigenous offenders (section 80).
[28] With respect to Indigenous offenders, Parliament enacted section 79.1 of the CCRA in June 2019, which provides, at subsection (1):
(1) In making decisions under this Act affecting an Indigenous offender, the Service shall take the following into consideration:
(a) systemic and background factors affecting Indigenous peoples of Canada;
(b) systemic and background factors that have contributed to the overrepresentation of Indigenous persons in the criminal justice system and that may have contributed to the offender’s involvement in the criminal justice system; and
(c) the Indigenous culture and identity of the offender, including his or her family and adoption history.
(1) Dans le cadre de la prise de toute décision au titre de la présente loi concernant un délinquant autochtone, le Service tient compte des éléments suivants :
a) les facteurs systémiques et historiques touchant les peuples autochtones du Canada;
b) les facteurs systémiques et historiques qui ont contribué à la surreprésentation des Autochtones dans le système de justice pénal et qui peuvent avoir contribué aux démêlés du délinquant avec le système de justice pénale;
c) l’identité et la culture autochtones du délinquant, notamment son passé familial et son historique d’adoption.
[29] Important to any consideration of the factors detailed in section 79.1(1) is the limitation imposed by subsection (2), which provides:
The factors described in paragraphs (1)(a) to (c) are not to be taken into consideration for decisions respecting the assessment of the risk posed by an Indigenous offender unless those factors could decrease the level of risk.
Les éléments énoncés aux alinéas (1)a) à c) ne sont pas pris en considération pour les décisions concernant l’évaluation du risque que représente un délinquant autochtone, sauf dans les cas où ces éléments pourraient abaisser le niveau de risque.
C. Maximum v Medium v Minimum Security Inmates and Institutions
[30] In her affidavit, Ms. Belhumeur provides the following summary of the general characteristics of the inmates in each security classification category and the characteristics of their associated institutions:
Maximum Security Institutions
9. Maximum security institutions house offenders 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 institution. Offenders at maximum security may show less interest and participation in their correctional plans, and are more likely to be involved in institutional incidents, violence, Security Threat Groups, drug trafficking, or other breaches of institutional rules.
10. Movement, association and privileges are restricted and the perimeter of the institution is well-defined, secure, and controlled. Offenders are expected to interact effectively and responsibly, while subject to frequent direct/indirect monitoring. Maximum security institutions aim to prepare offenders for a medium security institution, including through programs and interventions.
Medium Security Institutions
11. Medium security institutions house offenders 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 institution. These offenders are more likely to be following their correctional plan and working towards conditional release by engaging in institutional activities and programs, complying with institutional rules and procedures, and being respectful towards staff members and other offenders.
12. Movement, association and privileges are moderately restricted, which allows for more interaction among offenders, compared to maximum security. This requires offenders to interact effectively and responsibly while subject to regular/indirect monitoring. As in maximum security institutions, the perimeter of a medium security institution is well-defined, secure, and controlled.
Minimum Security Institutions
13. Minimum security institutions house offenders presenting a low probability of escape and a low risk to the safety of the pubic in the event of escape, and requiring a low degree of supervision and control within the institution. These offenders have demonstrated a high propensity to comply with institutional rules, a low propensity for violence, and engagement with their correctional plans.
14. Movement, association and privileges continue to be monitored and managed by correctional staff, but with fewer restrictions. This prepares offenders for their eventual return to the community. The perimeter of a minimum security institution is clearly defined, but is not normally directly controlled; nor is there generally a physical barrier around the perimeter.
15. The environment of a minimum security institution promotes personal development, responsible behaviour and effective and responsible interactions with minimal monitoring. Offenders in minimum security institutions are expected to demonstrate a high level of motivation towards self-improvement by actively participating in their correctional plans and are moving towards release.
[31] CSC operates five penitentiaries for women: (i) Edmonton Institution for Women; (ii) Fraser Valley Institution [FVI]; (iii) Grand Valley Institution for Women; (iv) Joliette Institution for Women; and (v) Nova Institution for Women. CSC also operates one women’s Healing Lodge (Okimaw Ohci) and has two contracts with Indigenous organizations than run women’s healing lodges. Healing lodges only accommodate female inmates classified as minimum and medium security.
[32] Each women’s institution is multi-level, accommodating women in maximum, medium and minimum security. Women classified as maximum security are housed in Secure Units, where high-level intervention and supervision are provided by specialized staff. The Secure Units, which are governed by CD 578, are autonomous, physically separated