June 13, 2018 – the Supreme Court of Canada released its decision in Ewert v. Canada, a case challenging the use of prisoner risk assessment tests that can be culturally biased against Indigenous prisoners. The Union of BC Indian Chiefs (UBCIC) and BC Civil Liberties Association (BCCLA) co-intervened to ask the Court to require, for the first time within prison walls, that decision-makers follow the Gladue framework by taking into account the unique circumstances of Indigenous people that come into contact with the criminal justice system.

In its decision today, the Supreme Court determined that Corrections Service Canada (CSC) breached its obligations when it continued to rely on risk assessment tools without ensuring their validity for Indigenous prisoners. The Court emphasized CSC’s responsibility to ensure that its policies, programs and practices respect cultural differences, and the needs of Indigenous people. The Court recognized the systemic discrimination experienced by Indigenous persons throughout all areas of Canada’s criminal justice system, and found that CSC has an obligation to advance substantive equality in correctional outcomes for Indigenous offenders. The Court determined that in order for the corrections 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 psychological risk assessment tests at issue have serious impacts on how a prisoner is treated while incarcerated, as well as the timing of their release. A bad risk assessment rating can mean an Indigenous prisoner is less likely to get parole, access to programs, early or temporary release, and more likely to experience solitary confinement and a maximum-security setting.