Ewert v. Canada (Attorney General)

Ewert v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2007-01-12
Neutral citation
2007 FC 13
File numbers
T-1974-05
Decision Content
20070112
Docket: T-1974-05
Citation: 2007 FC 13
Ottawa, Ontario, January 12, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
JEFF EWERT
Applicant
and
ATTORNEY GENERAL OF CANADA
AND THE COMMISSIONER OF THE
CORRECTIONAL SERVICE OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, in which the Applicant advances Charter issues and constitutional questions to challenge the use of risk assessment tools on Aboriginal inmates. The Applicant also seeks judicial review of the third level decision by Gerry Hooper of the internal offender grievance process dated June 10, 2005. The Applicant appears on his own behalf.
I. ISSUES
[2] The issues raised in this judicial review application are as follows:
a) Did the Respondent, the Commissioner of the Correctional Service of Canada err in its response to the Applicant’s third level grievance?
b) Does the use of actuarial assessment tools to evaluate the Applicant’s risk level infringe the Applicant’s rights under sections 7, 9, 12 or 15 of the Charter? If so, is the infringement demonstrably justifiable in a free and democratic society pursuant to section 1 of the Charter?
c) Does the Court have jurisdiction to grant the relief sought restricting the discretion of the Respondents with respect to the management of its federal inmate population?
d) The constitutional questions posed by the Applicant are found at Annex "A "of these reasons.
[3] For the following reasons, the present application shall be dismissed.
II. BACKGROUND
[4] The Applicant is an Aboriginal offender serving his first federal term of two concurrent life sentences for second degree murder and attempted murder, in relation to two separate incidents which involved sexual assault. The Applicant has been incarcerated since July 10, 1984, and was eligible for parole after having served a minimum of 15 and 7 years respectively.
[5] The Applicant has been in prison for 22 years, over 15 of which were served in maximum security institutions. However, the Applicant has at times been classified as minimum or medium security. The Applicant alleges that the fluctuation in his security classification is done at the whim and caprice of the Respondent, Correctional Service of Canada Staff (CSC) based largely on the use of the impugned risk assessment tools, including the Violence Risk Appraisal Guide (VRAG), Psychopathy Checklist-Revised (PCL-R), Offender Intake Assessment (OIA), Custody Rating Scale (CRS) and the Statistical Information on Recidivism Scale (SIR).
[6] Although the Applicant has been eligible for full parole since 1999, he has repeatedly waved his legislative Full Parole reviews, citing that he was not prepared to reintegrate.
[7] On April 14, 2000, the Applicant filed an inmate complaint in which he claimed that the SIR, Psychopathy Checklist (PCL) and VRAG actuarial risk assessment tools along with the PCL-R used by CSC to classify and place offenders should not be applied to him as a “native” person. The Applicant’s complaint alleged that these assessment tools were “normed” for the general prison population only and therefore should not be applied to specific ethnic, gender or age groups, including Aboriginal peoples.
[8] This grievance was dismissed in June 2000 pending further investigation. On June 10, 2000, the Applicant filed another grievance on the same subject matter, seeking the same relief. This grievance was in turn denied at the first level on the ground that the SIR was not used in CSC’s assessment of the Applicant. The decision also upheld the practice that PCL-R and VRAG were valid assessment tools for native prisoners.
[9] The decision stated as follows:
Your grievance has been reviewed at the first level.
While it is not policy to use the SIR scale on Native offenders this scale is valid (predicts equally well for natives and non-natives) for Native men. The SIR scale, however, was not used in your case and its “removal” from your file is thus a moot point as was explained to you by Dr. Boer on July 21, 2000.
The PCL-R is valid for Native Offenders. Native men comprised 15% of the original sample and no systematic differences were found between Native and non-Native men. In addition, your score was assessed three times, each time giving the same score, and is therefore a reliable result in each case. There is no reason to remove it from your file.
The VRAG test authors did not analyze ethnicity differences in their data and, in fact, Dr. Rice thinks that Native men were not a large part of the sample. Nonetheless, Dr. Rice can see no particular reason why the CVRAG would be invalid for Native men. Given that the prevalence of risk factors and outcomes may vary significantly as a function of ethnicity or culture, the association between test scores and recidivism may vary (i.e., the test may over or under predict risk). Certainly in your case the VRHG suggests a lower level of violence risk than the PCL-R and this suggests no logical grounds for removal of such information from your file.
[10] The Applicant took the matter to the second level of the grievance process and supplemented his first level claims with reference to a variety of academic studies and research articles to support the position that these assessments were inappropriate for use with Aboriginal offenders. However, this second level grievance was denied on December 20, 2000. The decision stated that the VRAG and PCL-R are considered to be useful predictors of recidivism, and are only a few of the tools utilized in the process of determining the risk the offender presents; a process that includes provision for Native Elder assessment when necessary.
[11] On November 22, 2002, the Applicant filed a third level grievance on the same grounds to which he added the Sex Offender Risk Assessment Guide (SORAG) and the Violence Risk – Sex Offenders (VRS-SO). The Applicant alleged that these risk assessment instruments were designed by and for western people and when they are used in assessing Aboriginal offenders they produce a discriminatory effect that places Aboriginal prisoners in a disadvantaged position in the federal correctional system. The Applicant characterised these assessment tools as racist and a contributing factor to the over representation of Aboriginal peoples in Canadian correctional institutions.
[12] The CSC responded on February 21, 2003, indicating that the complaints would require further investigation. In this vein, CSC informed the Applicant that it had sought advice from the Alberta Board of Psychologists (ABP) regarding the validity of applying the assessment tools to Aboriginal inmates. On June 13, 2003, the Director General, Rights Redress and Resolution advised the Applicant that his grievance was dismissed. The letter indicated that the impugned assessment tools were part of a multi-method assessment process subject to professional judgment of those who perform the risk assessments. Moreover, CSC had undertaken a review of assessment tools for Aboriginal offenders and modifications would occur if necessary.
[13] On September 13, 2004, the Applicant submitted another inmate grievance to the third level. This grievance repeated the allegations and sought additional relief in that he wanted his reintegration into the community fast tracked. The Applicant justified this relief based upon alleged violations of the Charter. The Applicant sent a follow-up presentation alleging that CSC had improperly delayed processing his September 13, 2004 claim.
[14] On June 10, 2005, the decision on the Applicant’s grievance was rendered.
III. JUDICIAL HISTORY
[15] On August 4, 2005, the Applicant commenced an action in Federal Court (T-1350-05) for the same relief as sought under the inmate grievance processes. In a decision dated September 30, 2005, my colleague Justice Frederick Gibson allowed a motion by the Defendants and severed those issues which were more properly the subject matter of a judicial review and stayed the action T‑1350-05 pending the outcome of the present judicial review, which the Applicant filed on November 1, 2005.
[16] However, prior to filing this application for judicial review, the Applicant brought a motion for injunctive relief in action T-1350-05 seeking to prevent his transfer to a maximum security federal correctional institution until this matter is finally decided. This motion was dealt with as part of T-1974-05 and dismissed with costs by Justice Judith Snider on November 1, 2005. The Applicant brought another motion following the order of Justice Snider in which he sought to amend this judicial review to include the cause of action advanced in action T-1350-05 and required a review of decisions regarding the Applicant’s classification and placement. A decision on this motion has not as yet been rendered.
IV. DECISION UNDER REVIEW
[17] The impugned decision by G. R. Hooper dated June 10, 2005, is brief and bears repeating in its entirety, as follows:
Mr. Ewert you submitted a grievance concerning the use of actuarial tests on native offenders in the Correctional Service of Canada. Please accept our apologies for the delay in responding to your grievance.
You submitted a grievance on the above issue in 2003. At that time, you were advised in writing that the Correctional Service of Canada was in the process of having these instruments reviewed and evaluated through its Research Branch. On June 13, 2003 you received a letter from Ms. Shereen Benzvy Miller, the Director General, Rights, Redress and Resolution, Correctional Service of Canada. This correspondence provided you with a detailed explanation regarding the use of actuarial instruments on offenders, the process of assessment CSC follows and the current initiative being undertaken by the Research Branch to review the appropriateness of CSC intake assessment tools for Aboriginal offenders. This process is currently ongoing.
Once the evaluation of these measurements has been undertaken by CSC [it] will then determine whether any changes or modification(s) will be required to the current actuarial scales being used for assessment purposes.
Until such time as this review is completed, no further action is required.”
[emphasis in the original]
V. RELEVANT LEGISLATION
[18] The purpose of the Corrections and Conditional Release Act, 1992, c. 20 (the Act) is set out in section 3, whereas section 4 provides the principles that guide the Service. These provisions are as follows:
Purpose
3. 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.
Principles that guide the Service
4. The principles that shall guide the Service in achieving the purpose referred to in section 3 are
(a) that the protection of society be the paramount consideration in the corrections process;
(b) that the sentence be carried out having regard to all relevant available information, including the stated reasons and recommendations of the sentencing judge, other information from the trial or sentencing process, the release policies of, and any comments from, the National Parole Board, and information obtained from victims and offenders;
(c) that the Service enhance its effectiveness and openness through the timely exchange of relevant information with other components of the criminal justice system, and through communication about its correctional policies and programs to offenders, victims and the public;
(d) that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders;
(e) that offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence;
(f) that the Service facilitate the involvement of members of the public in matters relating to the operations of the Service;
(g) that correctional decisions be made in a forthright and fair manner, with access by the offender to an effective grievance procedure;
(h) that correctional policies, programs and practices respect gender, ethnic, cultural and linguistic differences and be responsive to the special needs of women and aboriginal peoples, as well as to the needs of other groups of offenders with special requirements;
(i) that offenders are expected to obey penitentiary rules and conditions governing temporary absence, work release, parole and statutory release, and to actively participate in programs designed to promote their rehabilitation and reintegration; and
(j) that staff members be properly selected and trained, and be given
(i) appropriate career development opportunities,
(ii) good working conditions, including a workplace environment that is free of practices that undermine a person’s sense of personal dignity, and
(iii) opportunities to participate in the development of correctional policies and programs.
Objet
3. 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.
Principes de fonctionnement
4. Le Service est guidé, dans l’exécution de ce mandat, par les principes qui suivent :
a) la protection de la société est le critère prépondérant lors de l’application du processus correctionnel;
b) l’exécution de la peine tient compte de toute information pertinente dont le Service dispose, notamment des motifs et recommandations donnés par le juge qui l’a prononcée, des renseignements obtenus au cours du procès ou dans la détermination de la peine ou fournis par les victimes et les délinquants, ainsi que des directives ou observations de la Commission nationale des libérations conditionnelles en ce qui touche la libération;
c) il accroît son efficacité et sa transparence par l’échange, au moment opportun, de renseignements utiles avec les autres éléments du système de justice pénale ainsi que par la communication de ses directives d’orientation générale et programmes correctionnels tant aux délinquants et aux victimes qu’au grand public;
d) les mesures nécessaires à la protection du public, des agents et des délinquants doivent être le moins restrictives possible;
e) le délinquant continue à jouir des droits et privilèges reconnus à tout citoyen, sauf de ceux dont la suppression ou restriction est une conséquence nécessaire de la peine qui lui est infligée;
f) il facilite la participation du public aux questions relatives à ses activités;
g) ses décisions doivent être claires et équitables, les délinquants ayant accès à des mécanismes efficaces de règlement de griefs;
h) ses directives d’orientation générale, programmes et méthodes respectent les différences ethniques, culturelles et linguistiques, ainsi qu’entre les sexes, et tiennent compte des besoins propres aux femmes, aux autochtones et à d’autres groupes particuliers;
i) il est attendu que les délinquants observent les règlements pénitentiaires et les conditions d’octroi des permissions de sortir, des placements à l’extérieur et des libérations conditionnelles ou d’office et qu’ils participent aux programmes favorisant leur réadaptation et leur réinsertion sociale;
j) il veille au bon recrutement et à la bonne formation de ses agents, leur offre de bonnes conditions de travail dans un milieu exempt de pratiques portant atteinte à la dignité humaine, un plan de carrière avec la possibilité de se perfectionner ainsi que l’occasion de participer à l’élaboration des directives d’orientation générale et programmes correctionnels.
[19] The classification of inmates as maximum, medium or minimum is governed by section 30 of the Act, which states as follows:
30. (1) The Service shall assign a security classification of maximum, medium or minimum to each inmate in accordance with the regulations made under paragraph 96 (z. 6).
(2) The Service shall give each inmate reasons, in writing, for assigning a particular security classification or for changing that classification.
30. (1) Le Service assigne une cote de sécurité selon les catégories dites maximale, moyenne et minimale à chaque détenu conformément aux règlements d’application de l’alinéa 96z.6).
(2) Le Service doit donner, par écrit, à chaque détenu les motifs à l’appui de l’assignation d’une cote de sécurité ou du changement de celle-ci.
[20] The purpose of administrative segregation is found in section 31 of the Act:
Administrative Segregation: Purpose:
31. (1) The purpose of administrative segregation is to keep an inmate from associating with the general inmate population.
Duration
(2) Where an inmate is in administrative segregation in a penitentiary, the Service shall endeavour to return the inmate to the general inmate population, either of that penitentiary or of another penitentiary, at the earliest appropriate time.
Grounds for confining inmate in administrative segregation
(3) The institutional head may order that an inmate be confined in administrative segregation if the institutional head believes on reasonable grounds
(a) that
(i) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person, and
(ii) the continued presence of the inmate in the general inmate population would jeopardize the security of the penitentiary or the safety of any person,
(b) that the continued presence of the inmate in the general inmate population would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence, or
(c) that the continued presence of the inmate in the general inmate population would jeopardize the inmate’s own safety, and the institutional head is satisfied that there is no reasonable alternative to administrative segregation.
Isolement préventif
Objet :
31. (1) L’isolement préventif a pour but d’empêcher un détenu d’entretenir des rapports avec l’ensemble des autres détenus.
Retour parmi les autres détenus
(2) Le détenu en isolement préventif doit être replacé le plus tôt possible parmi les autres détenus du pénitencier où il est incarcéré ou d’un autre pénitencier.
Motifs d’isolement préventif
(3) Le directeur du pénitencier peut, s’il est convaincu qu’il n’existe aucune autre solution valable, ordonner l’isolement préventif d’un détenu lorsqu’il a des motifs raisonnables de croire, selon le cas :
a) que celui-ci a agi, tenté d’agir ou a l’intention d’agir d’une manière compromettant la sécurité d’une personne ou du pénitencier et que son maintien parmi les autres détenus mettrait en danger cette sécurité;
b) que son maintien parmi les autres détenus peut nuire au déroulement d’une enquête pouvant mener à une accusation soit d’infraction criminelle soit d’infraction disciplinaire grave visée au paragraphe 41(2);
c) que le maintien du détenu au sein de l’ensemble des détenus mettrait en danger sa sécurité.
[21] The factors to consider when determining an inmate’s security classification are listed in Section 17 of the Corrections and Conditional Release Regulations, SOR/92-620 (the Regulations):
Security Classification
17. The Service shall take the following factors into consideration in determining the security classification to be assigned to an inmate pursuant to section 30 of the Act:
(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, where available, young-offender history;
(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.
Cote de sécurité
17. Le Service détermine la cote de sécurité à assigner à chaque détenu conformément à l'article 30 de la Loi en tenant compte des facteurs 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;
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.
VI. ANALYSIS
A. Did the Respondent, the Commissioner of the Correctional Service of Canada err in its response to the Applicant’s third level grievance?
(1) Standard of Review
[22] I must first proceed with a pragmatic and functional analysis in order to determine the applicable standard of review in this case. In Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, the Supreme Court of Canada established the following four factors to consider:
a) Presence of a privative clause or right of appeal
[23] The Act does not contain a privative clause. There are extensive internal review mechanisms through which inmates can pursue grievances, as was exercised in this case. The silence of the legislation renders this factor neutral in the overall functional and pragmatic analysis and implies deference by the reviewing Court where the decision is fact based as it is in this instance.
b) Relative expertise of the tribunal vis-à-vis the Court
[24] The legislator has imbued those responsible for the management and maintenance of federal correctional institutions and their inmates with a high degree of training and expertise in such matters, which calls for an increased level of deference by the reviewing Court. Justice George Addy said it best in Re Cline (1981), Court No. T-894-81 (F.C.T.D.) as follows:
I would like to add that, except in clear and unequivocal cases of serious injustice coupled with mala fides or unfairness, judges, as a general rule, should avoid the temptation of using their ex officio wisdom in the solemn, dignified and calm atmosphere of the courtroom and substituting their own judgment for that of experienced prison administrators. The latter are truly in the firing-line and are charged by society with the extra-ordinarily difficult and unenviable task of maintaining order and discipline among hundreds of convicted criminals who, as a class, are not generally reputed to be the most disciplined or emotionally stable members of society and who, by the mere fact of incarceration, are being forcibly deprived of many of their most fundamental freedoms. Similarly, courts should avoid laying down any detailed rules of conduct for these administrators since courts have very little practical knowledge of the problems involved in maintaining prison security generally or of the specific tensions, pressures and dangers existing in any particular prison or in any given situation. Such detailed rules of conduct, if any, should be left to the legislators or better still, to those possessing the required expertise who might be charged by the legislators with the issuing of regulations pertaining to these matters.
c) The purpose of the statute
[25] Section 3 of the Act outlines the purpose of the federal correctional system, which has a dual aim: to protect the public and rehabilitate offenders. The classification and placement of the offender during the intake assessment and incarceration processing are key elements in achieving these goals. In order to do so, Respondent CSC staff must conduct a thorough assessment based on all the available facts and other information on the offender and seek to find the right balance between the best interests of the inmate with those of society at large. This requires not only a careful review of facts but also relies on the appropriate application of various policies and guiding principles, including the Act and the Commissioner’s Directives and Standard Operating Practices.
[26] As noted by Madam Justice McLaughlin in Dr. Q, above “this factor of the analysis weighs in favour of increased deference”.
d) The nature of the question
[27] The nature of the question at issue demands a high degree of deference. Not only is the decision at the third level grievance largely fact specific, but it is also based on a review of the actuarial assessment tools used by the Respondent both on the Applicant and on the wider Aboriginal inmate population.
[28] As a result of this review of the four factors in the pragmatic and functional analysis, the standard of review to be applied in this judicial review is that of patent unreasonableness.
(2) Was the third level grievance decision patently unreasonable?
a) Inordinate delay
[29] Although it is not coached in these terms, the Applicant raises a procedural fairness matter with respect to the delay in obtaining a decision. I believe I must address this matter before turning to the other issues. I must also note at the outset that the Federal Court of Appeal has established that the standard of review and the application of the pragmatic and functional analysis as set out in Dr. Q, above, apply only to substantive issues and not procedural matters (see Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056 (F.C.A.) (QL) at paras. 40-85).
[30] The test for establishing whether inordinate delay has occurred is set out in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, where the Supreme Court of Canada held that unreasonable delay causing serious prejudice could amount to an abuse of process. However, as stated in paragraph 133:
[…] There must be more than merely a lengthy delay for an abuse of process; the delay must have caused actual prejudice of such magnitude that the public's sense of decency and fairness is affected. […]
[31] With respect to the 23-month delay in receiving the decision following the Applicant’s grievance of October 25, 2000, it has been held time and again that delay alone is not sufficient to reverse a decision. In Niaki v. Canada (Attorney General), [2006] F.C.J. No. 1393 (F.C.) (QL), at paragraph 44, my colleague Justice Yves de Montigny held:
[…] To succeed in an allegation of delay, an applicant must demonstrate two things: that there has been inordinate delay, and that the applicant has suffered real prejudice as a result of the delay. In this case, the entire process (from the filing of the first complaint to the release of the investigation report) took approximately 23 months. This is certainly a long delay, no doubt occasioned at least in part by the two changes of investigator, but I am not convinced that it is inordinate. In any case, Mr. Niaki has failed to present any evidence that he suffered any real prejudice as a result of that delay. While I am prepared to accept that the applicant may have been under stress during that period, I am not prepare to hold that the delay was abusive and that it caused actual prejudice of such magnitude that it would offend "the community's sense of decency and fairness," to use the Supreme Court's language in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at paragraph 132.
[32] Applying this test to the case at bar, I find that while there is a five-year span between April 14, 2000 when the Applicant filed his first grievance to the ultimate decision on June 10, 2005, this delay was not inordinate when one considers the complexity of the matter and the fact that the Applicant filed at least four grievances on the same subject matter during that period, as set out in Table 1 below:
Table 1
Date Grievance Filed
Date Decision Rendered
Delay
1. April 14, 2000
September 6, 2000
5 months
2. June 10, 2000
August 8, 2000
2 months
3. October 25, 2000
December 20, 2000
2 months (decision received October 25, 2002)
4. October 26, 2002
February 21, 2003
4 months
5. September 13, 2004
Received on October 1, 2004
2 weeks
6. November 25, 2004
June 10, 2005
7 months
[33] What is troubling to the Court is the almost two-year delay before the receipt of the Respondent’s decision rendered on December 20, 2000, which he received October 25, 2002. However, I find reasonable the Respondent’s explanation that it was unaware that the Applicant did not receive the decision dated December 20, 2000. In addition, I note that the Applicant failed to bring this to the attention of the Respondent for a period of 23 months. This inaction on the part of the Applicant leaves the impression that the Applicant suffered no real prejudice as a result of the delay, such that it would shock the conscience of the community. The Respondent reports as follows (Applicant’s Affidavit, Exhibit C, Tab 6):
There was no reason for you (the Applicant] not to have pursued the second level response through the Institutional Grievance Coordinator’s office when you did not receive it as expected or to have submitted a separate third level grievance indicating that the response was late. Either action would have drawn attention to the matter and it would have been resolved then.
[34] Moreover, the Respondent has apologized to the Applicant for the delay as stated in the response by Mr. Hooper dated June 10, 2005. I therefore consider this matter settled as the Applicant failed to take appropriate action to notify the Respondent of the lack of response for a period of 23 months and has failed to avail himself of the Respondent’s grievance redress mechanisms before bringing the matter to the Court’s attention.
b) Submissions of the Applicant
[35] The Applicant has four main arguments.
[36] The first argument: a written opinion (November 28, 2005) by Dr. Menzies on the accuracy of the risk assessment instruments used by CSC on federal prisoners. Dr. Menzies, a Ph.D. in Sociology from the University of Toronto, is a professor in the Department of Humanities at Simon Fraser University British Columbia. In his conclusion, he states the following:
IN CONCLUSION, the Correctional Service of Canada has failed to demonstrate the accuracy of the risk assessment instruments that it routinely enlists in the classification of federal prisoners, and in the imposition of a range of conditions on their carceral sentences. Further, no authoritative data exist to establish that such instruments are applicable specifically to Aboriginal offenders. At no time, to my knowledge, have the VRAG, PCL-R, SIR, Static 99, CRS and other actuarial risk instruments received the rigorous cross-validation testing that would be necessary to assess their relevance to the subpopulation of Indigenous people serving time in Canadian federal penitentiaries. Coupled with the disproportionately high risk ratings assigned to Aboriginal inmates and their over-representation in Canadian prisons, a significant likelihood exists that the deployment of these highly fallible and under-analyzed risk assessment instruments has had a direct and discriminatory impact on the rights and freedoms of Indigenous prisoners.
[37] The second one: a document filed by the Respondents called "Do not send to Inmate" (Respondents’ Record, p. 122) as well as the following e-mail message (Respondents’ Record, p. 129):
-Original Message-
From: Mason, Randolph (NHQ-AC)
Sent: Monday, January 20, 2003, 9:59 AM
To: Sonnichsen Paul (NHQ-AC)
Subject: RE: Inmate Grievance re use of PCL-R and VRAG instruments.
Paul:
This is timely in that we have already flagged this issue as a concern. In fact, the Research Branch (NHQ) has already begun some work on this – if only in a preliminary capacity. I suspect that the inmate will win his case and that this will force our hand as a Service. And rightly so! It has always been our position that the inappropriate use of actuarial scales and measures adversely affects our Aboriginal population. In fact, we contend that the use of these measures artificially inflates need and risk ratings.
Randy Mason.
[38] The third one: the assessment tools applied to him are inappropriate. For example, his score in 2000 for "the computed security classification" went from "minimum" (Applicant’s Record, p. 85) to “medium" (Applicant’s Record, p. 87) in 2003 although he was absolutely charge free, had completed a second round of intensive treatment, two counselling certifications and two alternatives to violence modules.
[39] The fourth one: the SIR was applied to him in 1995. The Applicant explained in great details the negative results obtained by this assessment tool used on him and alleges by citing some extracts in the Respondents’ Record that this tool should not have been applied because he is an Aboriginal inmate.
[40] Therefore, the Applicant submits that the assessment tools are harmful to him and other Aboriginal inmates.
c) Submissions of the Respondents
[41] The Respondents allege that pursuant to section 5 of the Act, CSC is charged with the responsibility of ensuring the objectives under section 3 are achieved.
[42] Pursuant to subsection 6(1) of the Act, the Commissioner has control and management of CSC. He has been granted an authority under sections 97 and 98 of the Act in the form of Commissioner’s Directive and Standard Operating Practices to issue rules and guidelines to its staff in the exercise of their duties.
[43] Upon admission to federal custody, the offender is subjected to an OIA.
[44] CSC must ensure that the individual is placed in the least restrictive environment taking into account a degree and kind of custody and control necessary accessibility to the individual’s home community and support and the availability of programming.
[45] Such placement requires a consideration of the individual’s escape risk, risk to public safety in the event of escape and a degree of supervision and control that is necessary in order to fulfill the objectives of the Act. This process is referred to "the inmate security classification process". The factors to be considered are set out in section 17 of the Regulations.
[46] The OIA has two components: the Static Factors Assessment and the Dynamic Factors Assessment. Some of the assessment tools to measure the risk of re-offending are: the Criminal History Record, Offensive Severity Record, Sex Offense Checklist and Statistical Information on Recidivism-Revised 1 Scale (SIR-RI). In particular circumstances, an offender may be referred for a specialized psychological assessment when there is a sexual offence component.
[47] The Respondents submit that the SRI-RI is a valid predictor of the risk of re-offending with respect to Aboriginal inmates, but the size of the sample upon which the test was constructed has lead CSC to adopt a cautious approach to its application to that subgroup. CSC asserts that the SRI-RI was not applied to the Applicant.
[48] The second component of the OIA (Dynamic Factors Assessment) attempts to identify those factors that can be influenced through programming and treatment.
[49] Therefore, the Respondents argue that the risk/needs assessment is a multi-method involving a multi-disciplinary team and does not rely on a single assessment tool to the exclusion of others. The CRS is one of the tools to determine the security classification of an inmate.
[50] The Respondents allege that in the OIA process, the staff involved may request a specialized psychological assessment as it was done in this case. Specialized psychological risk measures include the PCL-R, VRAG and SORAG. The Respondents contend that these tools have been validated for use in adult male correctional and forensic psychiatric samples. These tools are used at the discretion of the psychologist. Other tools such as the Violence Risk Scale: Sex Offender Version VRSSO and the STATIC-99 are also available to predict the long-term potential for sexual recidivism. The Respondents maintain that the utilization of these tools enhances professional judgment and assists in ensuring the consistency and predictive accuracy of decisions relating to the rehabilitation and reintegration of offender.
[51] The Respondents filed an opinion (dated January 7, 2006) written by Dr. Quinsey, Ph.D., Head, Department of Psychology, Professor of Psychology, Biology, and Psychiatry at Queen’s University, Kingston, Ontario. Dr. Quinsey drew the following conclusion (Respondents’ Record, p. 32):
In summary, there is no evidence of which I am aware showing that actuarial instruments are biased against aboriginal federally sentenced offenders; the available data suggest the opposite. A number of actuarial estimates provide accurate estimates of the probability with which an offender would be arrested or convicted for a new offense in a given period of opportunity to offend. The accuracy of actuarial instruments is robust across a wide variety of populations. Lastly, there is no defensible alternative to assessing risk using actuarial instruments-- in particular, the use of unstructured intuitive judgments is likely to produce inappropriately conservative, biased, and inaccurate judgments of risk.
[52] The Respondents also filed an affidavit by Dr. Motiuk. He has a Ph.D. in Psychology from Carleton University and a master’s degree in clinical psychology from the University of Ottawa. He is the Director General of Research for CSC.
[53] In this affidavit, he explains the history of risk assessment and the development of the assessment tools at CSC. Here are some of his comments (Respondents’ Record, tab 4, pp. 24 to 25 of Dr. Motiuk’s Affidavit):
79. The administration of specialized psychological risk measures such as the PCL-R, Violence Risk Appraisal Guide ("VRAG") and Sex Offender Risk Appraisal Guide ("SORAG") require training and can only be administered by or under the direct supervision of registered psychologists. Although the PCL-R developed by R. Hare was not originally designed as a risk assessment device, it has gradually come to be used to assess likely future recidivism and violent offending. In the PCL-R has been validated for use in adult male correctional and forensic psychiatric samples. Over recent years, research has shown that it is a relatively good predictor of violence across diverse populations. PCL-R scores are incorporated into a number of subsequently developed risk assessment tools and guides such as the VRAG and SORAG.
80. The VRAG and SORAG, he developed by v. Quinsey, G. Harris, M. Rice, and C. Cormier, are used to assess the risk of violence and sexual recidivism of previously convicted sex offenders within a specific period of release. It uses the clinical record as a basis for scoring and incorporates the PCL-R scores. Similarly, the VRAG and SORAG have been validated for use in adult male correctional and forensic psychiatric samples.
81. […] Although psychologists have individual discretion in the use of tools, it is believed that the majority of CSC psychologists use these assessment tools. Also used are specialized scales such as the STATIC-99 developed by K. Hanson and the Violence Risk Scale: Sex Offender Version ("VRSSO") by S. Wong and A. Gordon. The Static 99 and VRSSO were specifically designed to assess the long-term potential for sexual recidivism among adult male sex offenders. So far, the Static-99 and VRSSO have been used predominately