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UPDATE June 13, 2018: In a split ruling today, the Supreme Court of Canada said Correctional Service of Canada tests may discriminate against Indigenous inmates, but that Métis inmate Jeffrey Ewert did not establish his personal Charter rights were infringed by how his assessment was carried out.

Original story below:

An upcoming Supreme Court of Canada ruling could decide whether controversial tests that are used to predict criminals' likelihood to reoffend violate the Charter rights of Indigenous people.

In 2017, Jeffrey Ewert, an Indigenous inmate, challenged the reliability of risk assessments. The tests assign a score to an inmate and can guide sentencing.

Ewert has been in the federal prison system for 30 years, serving a life sentence for second-degree murder and attempted murder.

Some legal experts and psychologists argue that the tests can disproportionately affect inmates who are visible minorities, and particularly, Indigenous people, leading to longer sentences and lower chances of parole on the basis of a high score.

In 2016, 26 per cent of inmates in federal prisons were Indigenous, while only making up less than five per cent of the Canadian population.

Several iterations of risk assessments are used in the federal and provincial justice systems and by prison officials and judges.

The test includes multiple questions related to education, family history and substance abuse. Sample questions from a version of the test seen by the CBC include:

What kind of neighbourhood do you live in?

Do you know anyone who is involved in crime?

Are you bothered by uncontrollable urges?

Answers from the test are used to calculate a score for the inmate, which can be used to help judges and correctional staff determine the length of a prison sentence, parole decisions or security conditions inside a correctional facility.

Respondents are classified as having a low, medium or high risk to reoffend, depending on whether their answers to the questions correspond to the responses given by other offenders with a similar criminal history.

Kelly Hannah-Moffat, a professor of criminology at the University of Toronto, argues that Indigenous offenders often score higher than the rest of the population, regardless of whether or not their responses have anything to do with their listed offence.

"You can score medium- to high-risk [of recidivism] by just being Indigenous. You don't even need to do anything," she said.

"They don't take into consideration or control for things such as employment, substance abuse, colonization, abuse and trauma that might have happened as a consequence of residential schools or intergenerational trauma."

Many of these factors overlap with variables named in the Gladue report, a pre-sentencing test that an Indigenous offender can request to offset the legacy of colonialism and residential schools, she said.

That report says judges should consider an Indigenous offender's personal background — for example, a history of substance abuse, poverty, victimization, or experience in residential schools or the child welfare system — in sentencing.

A 2015 study co-authored by psychologist Stephen Wormith — who also designed one version of the risk assessment test — found that Indigenous offenders "had considerably higher scores" than non-Indigenous offenders.

The study looked at a large sample of offenders based in Ontario who were assessed using a common version of the test, called the Level of Service/Case Management Inventory (LS/CMI).

The case of an Indigenous prisoner who says tests to assess risks and recidivism have cultural bias is before the Supreme Court of Canada. (Sean Kilpatrick/Canadian Press)

Wormith told CBC Radio in an email, however, that it's ultimately up to a judge's discretion to decide how the test's score will factor in a parole or sentencing decision.

Effects of residential schools' history

Eleanore Sunchild, a Cree lawyer in the Battlefords — located on Poundmaker First Nation in Saskatchewan — argues that the risk assessment tests may be conducted in a way that ignore or obfuscates the personal histories of Indigenous offenders, particularly the lasting generational effects of residential schools.

"[There are] questions geared towards poverty, violence, marginalization, alcohol abuse, family discord, and the home situation," she told The Current's guest host Connie Walker.

Lawyer Eleanore Sunchild argues that the risk assessment tests may be conducted in a way that ignore or obfuscates the lasting generational effects of residential schools on Indigenous offenders. (Laurel Sapp)

She explained that many Indigenous people in the criminal justice system have been affected by these factors.

"Most [Indigenous] people who are in the correctional system have either been directly affected by Indian residential school or have a family member who went to an Indian residential school — a mother, a father, a grandparent. And so those cycles, they continue and those have to be understood by the people who are administering the test," she said.

Tests often contracted out

According to Mark Olver, a psychology professor at the University of Saskatchewan, "the risk assessment instrument is viewed as just one part of an overall psychological evaluation of their risk."

"Oftentimes in that process you'll use multiple tools."

The test is combined with other testing like cognitive or mental health testing, as well as reviewing previous psychological and psychiatric assessments, he said.

These tools, even those impugned in the Ewert matter, do work. - Mark Olver, psychology professor

Olver, who has administered the tests for parole board evaluations, said that when administered correctly, the assessments can accurately predict recidivism in both Indigenous and non-Indigenous offenders.

"These tools, even those impugned in the Ewert matter, do work. And there has been subsequent research conducted since — and I've been involved in some of that work — investigating their properties," he told Walker.

Correctional Services of Canada (CSC) told CBC Radio that the tests are administered according to guidelines, which are "used to ensure the offender can be safely managed."

Anyone who administers the test must complete training by Multi Health Systems — the company that also sells the test — or have a related graduate degree.

Female Indigenous offenders make up 37.9 per cent of the total female inmate population. Of the overall female Canadian population, Indigenous women and girls comprise just four per cent, according to Statistics Canada. (Ueslei Marcelino/Reuters)

"CSC relies on the due diligence and the adherence to professional standards of the licensed psychologists that work for CSC," spokesperson Martine Rondeau said in a statement.

However, CSC does not always administer the test — in many cases, it's outsourced.

"It would be the responsibility of the contractor to meet requisite test administration criteria and/or practice within their area of competence," Rondeau said.

CSC ordered to stop using tests

The Ewert case worked its way up to the Supreme Court of Canada after the CSC appealed a 2015 decision by federal court judge Michael L. Phelan to stop using its standard psychological risk assessment on violent Aboriginal offenders.

"Assessment tools always played a significant role, either directly or indirectly" in sentencing, Phelan said in his ruling, citing that there wasn't enough evidence to prove they were not biased.

"In relying upon questionable tests and in failing to ensure that the tests are reliable, CSC has not taken 'all reasonable steps' to ensure that the information about Ewert (or potentially other Aboriginal prisoners) is accurate," the ruling continued.

"Whatever the result of this lawsuit, the Correctional Service can no longer ignore its statutory obligation to Indigenous prisoners," Ewert's lawyer Jason Gratl told CBC Radio.

It's how you use it

According to Olver, the Ewert case presents an opportunity to better define how they are used — and to avoid potential misuse when it comes to Indigenous offenders or subject of any other visible minority.

"They need to be used sensitively and with professional discretion like any other tool, and I think that we just need to be in a position to evaluate the evidence of whatever tool we're using."

When we think of somebody as risky, we think of them very differently than if we think of somebody as in need - Kelly Hannah-Moffat, criminology professor

Hannah-Moffat suggests that the tests should be used to better determine how the justice system can better help inmates in need of treatment or support, rather than simply decide their likely recidivism rate.

"Somebody who is a high-needs person with mental health issues, addiction issues, marginalization, homelessness — all of these things can become seen as a high-risk person," she said.

People with a history of trauma or substance abuse, for example, often first get treatment for these issues after they come into conflict with the law.

Their so-called risks, in other words, should be seen rather as unmet needs.

"When we think of somebody as risky, we think of them very differently than if we think of somebody as in need," she said.

This segment was produced by Eman Bare and Alison Masemann. With files from Jonathan Ore.