Manitoba is reviewing a Supreme Court decision that found federal corrections officials failed in their legal duty to make sure criminal-risk assessments don’t discriminate against Indigenous inmates.
In a majority ruling Wednesday, the Supreme Court of Canada decided the Correctional Service of Canada knew about, but didn’t act on, long-standing concerns the assessments it uses to measure offenders’ levels of risk to reoffend are biased against Indigenous offenders.
The court didn’t consider whether the risk assessments actually are unfair, but it decided federal corrections officials need to make sure they’re suitable for Indigenous Peoples, who are consistently over-represented in prisons and jails.
As the Correctional Service of Canada looks into the top court’s ruling to figure out next steps, Manitoba Justice has promised to do the same. In a brief statement to the Free Press, a Manitoba Justice spokeswoman said the department "will review the Supreme Court decision and how it might relate to our own pre- and post-sentencing reports."
The assessments have been flagged as discriminating against Indigenous Peoples — and running contrary to legal principles that force courts to consider an Indigenous offender’s potentially traumatic background — because they use criteria such as family support, education and peer groups to measure how likely an offender is to commit more crimes.
Indigenous offenders can be listed as a higher risk if they have a lack of family support or if they have friends who’ve been criminally involved — even though those issues can often be traced back to the effects of colonization and residential schools, and may be out of the offender’s control.
In a 2017 report from Public Safety Canada, researchers working for the federal government acknowledged those concerns and concluded they couldn’t rule out systemic discrimination against Indigenous offenders. While the risk assessments might accurately predict whether an Indigenous inmate was likely to reoffend, the assessments were found to be more accurate for non-Indigenous inmates. The report recommended conducting more research.
Scott Newman, spokesman for the Criminal Defence Lawyers Association (Manitoba), said these types of risk assessments carry little value in court because of the long-held concerns. An offender’s risk assessment is included in a probation officer’s pre-sentence report to the judge, and the assessments can also be used within the correctional system after sentencing.
"Judges have just started ignoring the risk factors now. They don’t use them at all," he said, describing the Supreme Court’s ruling as a "signal to show that the judges who are disregarding these tests are on the right track."
The Supreme Court’s ruling came after a federal court challenge from Jeffery Ewert, a Métis inmate from Surrey, B.C., who is serving two life sentences for second-degree murder and attempted murder. He’s been eligible for full parole since 1999, but he waived his right to parole hearings in part because he was assessed as a high risk to reoffend and knew he was unlikely to be released.
"The CSC must ensure that its policies and programs are appropriate for Indigenous offenders and responsive to their needs and circumstances. For the correctional system to operate fairly and effectively, the assumption that all offenders can be treated fairly by being treated the same way must be abandoned," the Supreme Court’s decision states.
Winnipeg defence lawyer Zilla Jones, who has challenged the use of risk assessments for Indigenous offenders in Manitoba, said it’s significant the Supreme Court made a clear declaration that equality doesn’t mean treating everyone the same.
"Equality means actually looking at the barriers that different people face and trying to even out those barriers. So, if we have a situation where we have Indigenous (Peoples) obviously over-represented and overly receiving negative assessments, there’s an obligation on the system... to rectify that inequality," she said.
"It’s really hopeful to see these kinds of decisions coming from the Supreme Court, that they are willing to wrestle with difficult issues."
Correctional Service of Canada confirmed it is reviewing the decision.
"It is important to note that culturally appropriate interventions and reintegration support for First Nations, Métis and Inuit offenders is a priority of CSC," a spokeswoman wrote in an email.
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Katie May reports on courts, crime and justice for the Free Press.