Legislation and Policies

Special Report

Protecting Their Rights A Systemic Review of Human Rights in Correctional Services for Federally Sentenced Women

Chapter 4

Human Rights in the Assessment and Classification of Need and Risk

The classification and assessment of federally sentenced offenders’ programming needs and security risk have a critical impact on decisions about where they are incarcerated, how they are managed and supervised, what kind of programming is available to them, and the conditions under which they are released. The upshot of these decisions can be far-reaching.
 
The case management process for managing the reintegration of offenders begins with an assessment of the offender’s security risk and an identification of the factors that led to their criminal behaviour. If these processes are flawed, then some inmates will be classified incorrectly and their correctional plans, including decisions about the kinds of programming that would be most suited to their needs, will be flawed, jeopardizing their chances of successful reintegration. If the flaws relate to prohibited grounds of discrimination, there is also a chance that they run afoul of the Canadian Human Rights Act. It is therefore important to examine whether existing assessment and classification processes are appropriate for the purpose and the populations they are intended to serve.

4.1. Offender Intake Assessment

All new offenders go through an initial assessment process. Introduced in 1994, the offender intake assessment is intended to identify the factors that led to an individual’s criminal behaviour, information that forms the basis of the correctional plan that prescribes programs that are designed to address the risk factors identified. Intake assessment generates a profile for each inmate that includes an assessment of an inmate’s dynamic risk factors and a security classification developed using the custody rating scale. An assessment of dynamic risk factors or criminogenic factors is used to identify the level and kind of intervention required to achieve the safe and timely reintegration of the offender. It assigns a rating of low, medium or high to those factors that require improvement. The custody rating scale which assesses security risk results in a security classification level of minimum, medium or maximum.

The rest of this section addresses some of the human rights implications of these two assessment processes.

4.1.1. Dynamic Risk Assessment

The assessment of dynamic risk factors is used to identify the reintegration or programming needs of offenders.⁵² The theory behind the assessment process is that dynamic risk factors are those factors that led an individual to crime and that can be addressed through programming to reduce the risk of re-offending.

Seven areas or “domains” are assessed to identify the interventions or programming that may effect a change in behaviour. They are: employment, marital/family, associates/social interaction, substance abuse, community functioning, personal/emotional orientation and attitude. The same assessment instrument is used for both women and men.

4.1.1.1. A Human Rights Analysis

Because the assessment of dynamic risk factors is used to identify an offender’s programming needs, it also determines how they are “labelled” and assisted with reintegration. A faulty assessment may generate a correctional plan that requires an offender to participate in a program that is of little or no assistance, or prevents her from participating in one that would advance her chances of rehabilitation. Given the critical role of the correctional plan and programming in obtaining the earliest possible release, a flawed assessment could result in significant burdens, barriers or missed opportunities for some inmates.

It is widely recognized that women commit crimes for different reasons than men do.⁵³ Using the same tool to assess their needs for reintegration programming will not assist women as much as a gender-responsive tool would. An assessment tool or instrument that is incapable of addressing the full range of federally sentenced women’s criminogenic factors is inconsistent with the Canadian Human Rights Act.

A review of the tool used for dynamic risk assessment indicates it does not include some gender-responsive variables such as prior victimization.⁵⁴ Although past or present spousal abuse and witnessing spousal abuse during childhood are risk indicators under the “marital/family” domain, childhood sexual or physical abuse is not included as an indicator anywhere in the needs assessment process. Yet these factors are relevant to the lives of federal offenders, and especially to women (see statistical ... victimization and self-esteem require further research before they can be ruled out as predictors of female offending. Although problematic for both males and females, abuse and neglect seem to be more predictive of the future offending of females than males.

Classification of Women Offenders: A National Assessment of Current Practices, infra note 55, at 7.profile in chapter 1). Research conducted in the United States suggests a link between women’s criminal behaviour and prior experiences of victimization. This research also suggests that the interplay between the factors leading to criminality may be different for men and women.⁵⁵ The Correctional Service of Canada should undertake further research to clarify how factors such as prior abuse affect recidivism so that women inmates, in particular, may benefit fully from correctional programming that addresses the full range of their criminogenic factors.

The dynamic risk assessment tool discriminates on its face by identifying disability as a risk/need indicator that “interferes” with employment. Yet it is unclear how this indicator reliably contributes to predicting the risk of recidivism for offenders with disabilities.⁵⁶ From a human rights perspective, low employment rates among persons with disabilities tend to reflect the failure of employers to adopt workplace standards that are inclusive of people with disabilities resulting in their exclusion from many workplaces. If the Correctional Service of Canada continues to use “disability” as a factor in the needs assessment process, it needs to define how disability contributes to recidivism and develop programming that meets those needs, particularly the employability and employment needs of offenders with disabilities. The Service must also address accessibility issues with prospective employers when it goes out into communities to do job development for offenders on work releases or conditional release.

The dynamic risk assessment also uses risk/need indicators based on other prohibited grounds of discrimination, including religion and ethnicity.⁵⁷ Again, it is unclear how indicators such as these reliably predict risk for offenders, nor is it clear how these factors can meaningfully be assessed in the context of the offender intake assessment. The manual that accompanies the assessment tool offers little guidance to Correctional Service staff on how to apply these potentially discriminatory factors.

This gives rise to concerns relating to the assessment of federally sentenced Aboriginal offenders and other racialized groups. If a needs-assessment tool is not capable of measuring unique factors that may contribute to Aboriginal people coming into conflict with the law, then it is unlikely to adequately identify programming needs as well as other measures that will prevent this conflict. At the same time, if the tool assesses Aboriginal offenders on the basis of stereotypes and perception, this hinders Aboriginal offenders in realizing their potential for reintegration.

Using indicators that relate to prohibited grounds of discrimination to assess potential recidivism has human rights implications that must be scrutinized closely. In the same way that society and social norms can create barriers for people with disabilities that are unrelated to their true abilities, offenders with disabilities or perceived disabilities are poorly served by correctional services that use assessment tools that presumptively link disability with increased risk.⁵⁸ Ethnicity or race may have one meaning for one offender, but may mean something different to another. The impact of these characteristics may have more to do with how society perceives or responds to a person’s race or ethnicity — particularly a person with a history of criminal activity — than with the person’s self-perception or conduct.

The Correctional Service of Canada needs to exercise caution in using characteristics such as race, ethnicity or disability as indicators of programming needs. Instead, indicators of programming needs must be carefully designed to respond to unique needs and backgrounds. It is important to avoid assessing offenders based on a perception that those with a disability or those who are members of racialized groups, for example, pose increased risk. While some offenders with these characteristics may be at increased risk of recidivism, certainly not all will be. Clearer guidance must be provided to Correctional Service staff to clarify these aspects of the programming needs assessment, and assessment tools must be carefully designed to avoid differential treatment.

For all these reasons, it is clear that some of the indicators used in the dynamic risk assessment tend to treat certain individuals and groups differently for reasons that are linked to prohibited grounds of discrimination. The instrument used to assess criminogenic factors or programming needs is discriminatory on its face. It is therefore necessary to turn to the three questions that ask whether the discrimination is justified, and that can help in developing less discriminatory alternatives.

The first question asks for what purpose the dynamic risk assessment was adopted, and whether that purpose is related to a legitimate function carried out by the Correctional Service. The process appears to have been adopted for the purpose of assessing the factors that contribute to recidivism and that can be addressed through programming. This is rationally related to the Service’s mandate, and if implemented properly, should assist federally sentenced offenders.

In respect of the second question — the reason why the practice was adopted — there is no suggestion that the dynamic risk assessment was adopted with any discriminatory intent. However it does concern the Commission that the Correctional Service has continued to use the same tool for women and men with little regard for the research demonstrating that women’s criminogenic factors are different from men’s. Some of this research has been available for more than a decade and was referred to in both the report of the Task Force on Federally Sentenced Women in 1990 as well as in the 1996 Report of the Commission of Inquiry into Certain Events at the Prison for Women in Kingston.

The final question is whether the dynamic risk assessment is reasonably necessary to accomplish the Correctional Service’s purpose. The inquiry here focuses on whether the dynamic risk assessment actually achieves what it sets out to do for federally sentenced women and, if so, what alternatives may exist to modify or replace the assessment process, and what individual accommodation is possible.

Based on what we were told by the women we interviewed, we suspect that the assessment is not meeting the needs of federally sentenced women (nor those of men inmates) with disabilities or who are members of racialized groups. Many of the women who were interviewed for this report talked about how programming did not meet their needs and how some essential programs simply did not exist. In particular, women said they needed more help dealing with the effects of prior abuse, effects that also prevented them from being able to progress with other programming.

Because the dynamic risk assessment is a form of individual assessment, it is important, from a human rights perspective, to ensure that it is suited to its intended subjects. In her recent report on the reintegration of women offenders, the Auditor General expressed concern about the lack of adequate validity testing of the assessment tool being used for women.⁵⁹ Nor has the dynamic risk assessment tool been validated for an Aboriginal inmate population. Given the over-representation of Aboriginal people in federal correctional institutions, particularly among federally sentenced women, the Correctional Service’s failure to adequately test this important assessment tool is of serious concern to the Commission.

As we have noted, human rights law requires that assessment and testing processes be responsive to the populations to which they are applied and properly crafted to meet the purpose they are intended to achieve. Where assessment tools do not meet these requirements, they are blunt instruments that tend to lead to unjustifiable differential treatment. In the absence of adequate testing and modification, these instruments should not be used on women or Aboriginal offenders.

Unlike the custody rating scale, which will be addressed below, the dynamic risk assessment is a policy instrument with no explicit statutory basis. This offers the Correctional Service considerable scope to reform both the process and the instrument to accommodate the needs of all federally sentenced offenders.

4.1.2. Security Classification and the Custody Rating Scale

The Corrections and Conditional Release Act imposes a duty on the Correctional Service of Canada to assign a security classification of minimum, medium or maximum to each offender in accordance with a detailed legislative and policy framework.⁶⁰ The classification turns on an assessment of an offender’s probability of escape and risk to public safety, as well as her need for supervision within the penitentiary.⁶¹ Two kinds of risk are assessed: risk to the public in the event of escape; and risk to staff, other inmates and self caused by problems relating to institutional adjustment. The Act prescribes factors to be taken into consideration in determining the security classification, including the inmate’s social history and any physical or mental illness suffered by her.⁶²

4.1.2.1. A Human Rights Analysis

The custody rating scale, which is the foundation of the security classification system was developed for men in 1987. It has many shortcomings. It makes explicit distinctions on the basis of mental and physical disability. It was not designed to identify, reflect or accommodate the needs, capacities and circumstances of federally sentenced women or members of racialized groups, nor has it been adequately validated for these populations. Given the role of a security rating in determining placement and programming within prison, these are serious shortcomings. 

It is of great concern to the Commission that data from the Correctional Service consistently show a disproportionately high percentage of federally sentenced Aboriginal women classified at the maximum security level and a disproportionately low percentage of Aboriginal women at the minimum level. As of July 2003, Aboriginal women accounted for 46% of the federally sentenced women classified as maximum security, 35% of medium security women and only 23% of the women classified as minimum security. Non-Aboriginal women, on the other hand, accounted for only 54% of the maximum security women, 65% of the medium security women and 77% of the minimum security women. Women with mental health issues, cognitive limitations and substance dependency are also disproportionately classified as maximum security. These data raise concerns about the impact of the custody rating scale on protected groups. Almost six years ago, Justice Arbour identified problems with the rating scale, especially for Aboriginal women. In particular, she noted that the cumulative effect of longer offence histories, more violent offences and greater numbers of previous incarcerations among Aboriginal women (compared with non-Aboriginal women) results in higher security classifications and higher risk assessments for Aboriginal women. She noted that this situation "... is heightened by the tensions and misunderstandings between Aboriginal cultures and that of criminal justice and penal settings."⁶³

In her April 2003 report, the Auditor General of Canada also highlighted the negative repercussions of the Correctional Service’s failure to test the validity and reliability of the tools it uses to assess federally sentenced women. “In the short term, this testing is fundamental to making the right decision about an offender’s security level and her program needs for successful rehabilitation,” the report said. “In the longer term, incorrect assessment could lead to reoffending and the social costs it brings.”⁶⁴

Because the custody rating scale is not designed to assess federally sentenced women, it misclassifies too many of them as high security risks. Among the hardships imposed by this are the fact that maximum security inmates, unlike their minimum and medium security counterparts, are not eligible to participate in work-release programs, community release programs or other supportive programming designed to enhance their chances of reintegration. In fact, half of all maximum security women are now being released directly from maximum security incarceration into the community after serving two-thirds of their sentence, without the benefit of preparatory programming.

We also note with concern the adverse impact of the classification system on women with cognitive limitations. Some cognitive limitations prevent offenders from adequately managing their anger and may therefore present true risks. But not all cognitive limitations affect anger management. The current system fails to capture this distinction.

Federally sentenced women and some Correctional Service officials at the regional facilities stated that, in their opinion, the custody rating scale fails to take gender differences into account, and Correctional Service officials voiced concern that the current system classifies women at a higher security rating than is appropriate.

Most of the organizations we consulted raised concerns about the discriminatory impact of the classification system. The Office of the Correctional Investigator voiced serious objection to the use of a classification system “that has been designed for men, that is designed primarily to assess public risk, and which does not meet the unique and individual needs of female offenders.”⁶⁵

Many organizations, including the Native Women’s Association of Canada, emphasized that the adverse impact of this classification system on women is even more pronounced for women with disabilities and Aboriginal women. The Committee pointed to the disproportionate classification of Aboriginal women as maximum security with “the harsh treatment this entails.”⁶⁶ One of the most serious adverse impacts of a maximum security rating for Aboriginal women is that they are not permitted to live at the Healing Lodge. Justice Arbour referred to this unfortunate consequence in her 1996 Report: “Maximum security women who would benefit most from the philosophy, programs and overall environment (of the Healing Lodge)” are denied access to it.⁶⁷

The Commission agrees that the general purpose of the security classification system — the identification and assignment of a security level based on potential risk and the need for supervision — is rationally connected to the function being performed by the Correctional Service of Canada. Security considerations are important to ensuring the safety of everyone involved with the correctional system. However, we are concerned about the ongoing use of the current custody rating scale for federally sentenced women in light of research indicating that they pose less of a security risk than men. On the basis of this research, Justice Arbour argued for a security classification system tailored to women: “the risk that they pose to the public, as a group, is minimal, and considerably different from the security risk posed by men.”⁶⁸ Since then, commentators have pointed out that an emphasis on risk is fundamentally misaligned with the profile of female offenders, an overwhelmingly high-need population.⁶⁹ This suggests that the Correctional Service has not adequately explored alternatives to the current custody rating scale for federally sentenced women.

The effectiveness of the custody rating scale in differentiating levels of risk in the federally sentenced women population is also questionable because it does not seem to have much impact on how minimum and medium security women are housed and supervised. For most of the women who are classified as medium and minimum security, there is little difference in the conditions under which they serve their sentences. In fact, at many regional facilities, women classified as medium security live in the same houses as those with a minimum security classification. This brings into question the capacity of the custody rating scale to guide decisions about the “least restrictive” means of imprisonment.

In her 2003 report, the Auditor General of Canada raised several concerns about the custody rating scale, many of which are inconsistent with best practices for human rights compliance. Relying on research demonstrating that “there are several factors (such as physical, mental, and sexual abuse; severity of the current offence; and employment history) that may need to be considered differently when dealing with women offenders,” the report concluded that further validation testing of the rating scale was needed.⁷⁰ The Auditor General also found that the Correctional Service had not tested the reliability, including inter-rater reliability, of the custody rating scale for classifying women offenders.

There is a clear parallel between the Correctional Service’s failure to adequately test its assessment tools and the concerns that preoccupied the Supreme Court of Canada when it struck down a fitness standard for firefighting that tended to exclude women because it found the testing procedures flawed.⁷¹ On this basis alone, the Commission strongly urges the Correctional Service of Canada to develop ways of classifying offenders that respect and are responsive to the prohibited grounds of discrimination, while ensuring that everyone in the federal correctional system is not exposed to undue safety risks.

4.2. Classification of Offenders Serving Life Sentences

On February 23, 2001, the Correctional Service of Canada issued Policy Bulletin No. 107, which requires that federally sentenced offenders serving a minimum life sentence for first- or second-degree murder be classified as maximum security for at least the first two years of federal incarceration.⁷² The policy states that proposed overrides shall be exceptional and must be approved by the Assistant Commissioner, Correctional Operations and Programs. As well, the frequency of review of the security classification of affected inmates has been reduced to every two years, rather than a minimum of once yearly, as is the case for other offenders.

This policy change has serious consequences that implicate the protection of human rights. Security levels determine many of an offender’s living conditions including supervision levels, and eligibility for work releases, unescorted temporary absences and conditional releases. Despite this, all women serving the first two years of a life sentence will be classified as maximum even though the Correctional Service acknowledges that some of them “... have more moderate risk and need.”⁷³

Despite objections from the Office of the Correctional Investigator,⁷⁴ the Correctional Service of Canada has to date not rescinded the policy, stating that the determination of the initial security level reflects the seriousness of the crime committed, and that the two-year period provides an opportunity to observe an offender’s behaviour, motivation and adaption to prison life.⁷⁵ During our interviews with Correctional Service officials, a number commented that, in their view, the rule may make sense for men offenders, but it is not fair to women, whose crimes tend to be less violent and less premeditated.

In its submission to the Commission, the Canadian Association of Elizabeth Fry Societies noted several shortcomings in this policy, including a failure to recognize the context of women’s crimes: “Many women prisoners serving life sentences for murder have been charged, convicted and sentenced as a result of their involvement in defending themselves and/or their children against violent partners.”⁷⁶ The Joliette Local of the Union of Canadian Correctional Officers also called the policy discriminatory since it hinges only on the sentence and not the risk that the inmate presents.⁷⁷ The St. Leonard’s Society of Canada indicated that this policy has a disproportionately negative impact on Aboriginal offenders since they are more likely than non-Aboriginal offenders to be given a harsher sentence for charges based on similar facts.⁷⁸

4.2.1. A Human Rights Analysis

A blanket policy that imposes an automatic two-year maximum security classification on all offenders serving life sentences is unfair. It also adversely affects federally sentenced women and Aboriginal offenders. Women who commit crimes that merit a life sentence rarely pose a risk to public safety in the way that many men who commit such crimes do. The policy fails to acknowledge the important differences in the reasons why men and women commit crimes that lead to life sentences.

To the extent that the justice system tends to hand out harsher sentences for Aboriginal offenders, the policy results in a disproportionate disadvantage to these offenders without regard to the actual risk that these individuals present. The policy fails to consider the individual circumstances underlying offences among Aboriginal offenders. This failure translates systemic discrimination in sentencing into direct discrimination against individual Aboriginal offenders. A fair and balanced individualized assessment process would be more consistent with good human rights practice.

On its face, Policy Bulletin No. 107 is intended to assign a risk rating, a purpose that is rationally connected to the organization’s function. However, the stated rationale for the policy suggests that its purpose is not to assess the actual security risk of a particular offender, but rather to reinforce the social disapprobation of the crime of murder:

Since first and second degree murder are the most serious crimes that can be committed in Canada, and are subject to the most severe penalty in the Criminal Code, CSC’s policies and procedures must more clearly reinforce this aspect of our criminal justice system.⁷⁹

This rationale belies the notion that the policy was adopted because of the need to assess an individual’s security risk. It also misconstrues the respective purposes of the Criminal Code and the Corrections and Conditional Release Act. The former, by delineating criminal offences, designating sentences and determining parole eligibility, serves to signal societal disapprobation of a crime. Meanwhile, the latter seeks to rehabilitate offenders thus reducing recidivism and contributing to public safety. The Correctional Service is mandated to carry out the sentence imposed by courts using the least restrictive measures consistent with the protection of the public, staff members and offenders. Adding a retributive element to the carrying out of the sentence is not rationally related to the legitimate purpose of assessing risk. It is in fact contrary to the intent of both the Corrections and Conditional Release Act and the Canadian Human Rights Act.

We note that the Correctional Service has recently indicated that it is conducting an evaluation of this policy in order to determine whether any changes are required. In our view, further evaluation is not required. The human rights impact alone of this policy suggests that it should be revoked. If further evaluation is deemed necessary by the Service, it is imperative that it include an evaluation of the policy’s impact on human rights.

Previous Page

Table of Contents

Next Page