SCC: Correctional Service's psychological assessment tools may be culturally biased

By Yves Faguy June 14, 201814 June 2018

SCC: Correctional Service's psychological assessment tools may be culturally biased

The Supreme Court of Canada has ruled in a 7-2 decision that the Correctional Service of Canada failed to take reasonable steps to ensure the accuracy of psychological assessment tools for Indigenous offenders. The assessment tools have been used in a number of situations, from helping determine eligibility for parole and access to rehabilitation programs.

The ruling concludes a challenge brought forward by Jeffrey Ewert, a métis offender in his fifties who has spent more than 30 years in federal penitentiaries serving two life sentences for second degree murder and attempted murder. For much of that time, the CSC has relied on risk assessment scores to discourage Ewert from accessing rehabilitative opportunities, even though he had become eligible for parole over 20 years ago.

Under the circumstances, the top court issued a declaration that the CSC has failed to meet its obligation under section 24 (1) of the Corrections and Conditional Release Act, which requires its to take all reasonable steps to ensure that any information about an offender that it uses is as accurate as possible.

Section 4 of the Act specifically requires that “correctional policies, programs and practices respect gender, ethnic, cultural and linguistic differences and are responsive to the special needs of women, Aboriginal peoples, persons requiring mental health care and other group.”

For years, CSC has come under criticism that its psychological assessment tools are unreliable with respect to cultural minorities.

“The CSC had long been aware of concerns regarding the possibility of these tools exhibiting cultural bias yet took no action to confirm their validity and continued to use them in respect of Indigenous offenders, despite the fact that research would have been feasible,” the majority wrote.

While the declaration is seen as a win for Indigenous prisoners in terms of the prison service’s statutory obligations, equality advocates are disappointed that the Supreme Court also held that Ewert had not established a violation of his Charter rights under sections 7 and 15.

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