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Corrections and Conditional Release Act (CCRA). Michel v. Canada (Attorney General)
In Michel v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal partially allowed an appeal, here from a denied class action certification motion that resulted when "the Federal Court declined to allow the plaintiffs leave to amend their Third Amended Statement of Claim (the Statement of Claim) and to reapply for certification".
In this context, the court canvasses Charter s.15-challenged provisions of the CCRA and administrative policies and practices thereunder relating to indigenous inmates, particularly in light of modern developments in law (Gladue):[16] In the subsequent paragraphs of their Statement of Claim, the plaintiffs set out particulars of the CRS and the impugned tools. They alleged that the CRS overclassifies female Indigenous offenders, on both an individual and systemic basis, and that CSC has been aware of this overclassification since 2004, when certain studies were completed that, according to the plaintiffs, demonstrate this overclassification. The plaintiffs also alleged that the use of the impugned tools produces "“an anti-""Gladue effect, such that the greater the presence of colonial and post-colonial oppression, the higher the inmate’s risk profile and the more lengthy and harsh their time in custody”" (at para. 13.2 of the Statement of Claim). The plaintiffs further alleged that this anti-Gladue effect violates section 79.1 of the CCRA, which provides as follows:"Factors to be considered "
"Éléments à prendre en considération "
"79.1 (1) In making decisions under this Act affecting an Indigenous offender, the Service shall take the following into consideration: "
"79.1 (1)"" Dans le cadre de la prise de toute décision au titre de la présente loi concernant un délinquant autochtone, le Service tient compte des éléments suivants : "
"(a) systemic and background factors affecting Indigenous peoples of Canada; "
"a)"" les facteurs systémiques et historiques touchant les peuples autochtones du Canada; "
"(b) systemic and background factors that have contributed to the overrepresentation of Indigenous persons in the criminal justice system and that may have contributed to the offender’s involvement in the criminal justice system; and "
"b)"" les facteurs systémiques et historiques qui ont contribué à la surreprésentation des Autochtones dans le système de justice pénal et qui peuvent avoir contribué aux démêlés du délinquant avec le système de justice pénale; "
"(c) the Indigenous culture and identity of the offender, including his or her family and adoption history. "
"c)"" l’identité et la culture autochtones du délinquant, notamment son passé familial et son historique d’adoption. "
"Exception — risk assessment "
"Exception : évaluation du risque "
"(2) The factors described in paragraphs (1)(a) to (c) are not to be taken into consideration for decisions respecting the assessment of the risk posed by an Indigenous offender unless those factors could decrease the level of risk."
"(2)"" Les éléments énoncés aux alinéas (1)a) à c) ne sont pas pris en considération pour les décisions concernant l’évaluation du risque que représente un délinquant autochtone, sauf dans les cas où ces éléments pourraient abaisser le niveau de risque." [17] The reference to Gladue is to R. v. Gladue, [1999] 1 S.C.R. 688, 1999 CanLII 679. In that case, the Supreme Court of Canada found that paragraph 718.2(e) of the Criminal Code, R.S.C. 1985, c. C-46 directs sentencing judges to consider the unique systemic or background factors which may have played a part in bringing an Indigenous offender before the courts and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of their particular Indigenous heritage or connection. Paragraph 718.2(e) of the Criminal Code provides for the following:"Other sentencing principles "
"Principes de détermination de la peine "
"718.2 A court that imposes a sentence shall also take into consideration the following principles: "
"718.2"" Le tribunal détermine la peine à infliger compte tenu également des principes suivants : "
"… "
"[…] "
"(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. "
"e)"" l’examen, plus particulièrement en ce qui concerne les délinquants autochtones, de toutes les sanctions substitutives qui sont raisonnables dans les circonstances et qui tiennent compte du tort causé aux victimes ou à la collectivité." ....
[22] The CRS has been used by CSC since 1991 for purposes of classifying offenders’ level of public and institutional risk to assist in determining the security classification of offenders and the level of the institution where they will be incarcerated. The CRS also plays a role in offenders’ correctional plans and sentence planning. The CRS is administered either shortly before or shortly following an offender’s entry or re-entry into the federal penitential system for a period of incarceration. The CRS consists of two subscales—the Institutional Adjustment subscale and the Security Risk subscale.
[23] The Institutional Adjustment subscale assesses five items: institutional incidents; escape history; street stability; alcohol/drug use; and age at the time of sentencing. Street stability involves assessment of the offender’s employment and education history, marital and family adjustment, previous interpersonal relationships in the community, and living arrangements. The plaintiffs alleged that, due to the history of colonization, Indigenous people will tend to score poorly on many of the foregoing items and particularly on the street stability portion of this subscale.
[24] The Security Risk subscale assesses seven items: number of prior convictions; most severe outstanding charge; severity of current offence; sentence length; street stability; prior parole and/or mandatory supervision/statutory release; and age at time of first federal admission.
[25] The SFA, also completed as part of CSC’s inmate intake process, assesses 137 static factors related to the offender and their offence history.
[26] The DFI-A is also completed as part of CSC’s intake process. It assesses seven areas, which overlap to a certain extent with the CRS, namely: employment and education; marital and family relationships; nature of associates; substance abuse; community functioning; personal and emotional skills; and attitudes.
[27] The RP is a point in time assessment of an offender’s ability to reintegrate into the community. It is used for sentence planning and as part of an offender’s correctional plan. The RP is arrived at via a combination of the CRS recommendation, the SFA rating, and the DFI-A rating, but may be adjusted by a parole officer.
[28] The appellant alleges that there was some basis in fact before the Federal Court to show that the CRS, the impugned tools, and/or certain components of them tend to overclassify female Indigenous inmates, both in the aggregate and in individual instances. She says that at least one of the expert reports the plaintiffs filed supports this contention. This contention was contested by the respondent’s experts. However, the Federal Court made no finding on this issue, concluding that "“no determination need be made … as to whether [the CRS] lacks predictive validity for the class members”" (Federal Court Reasons at para. 65).
[29] The evidence before the Federal Court showed that female Indigenous inmates, collectively, are classified as higher security risks than non-Indigenous female inmates, a point that is not disputed by the respondent.
[30] The security classification that CSC applied to the plaintiffs at certain points in their carceral history differed from the results obtained through their CRS scores. Indeed, Ms. Michel was classified at certain points in her carceral history at a risk level that was lower than the result obtained from her CRS scores.
[31] The Federal Court found that CSC Wardens have the authority to determine offenders’ security classifications, based upon their review of all the information obtained through the offender intake assessment process, which includes many items in addition to CRS scores and scores from the impugned tools. As noted by the Federal Court at paragraph 183 of its reasons, "“the security classification is decided by the Warden after a review of all of the information gathered during the [offender intake assessment] process. It is a multifactorial and individualized process involving numerous assessments and pieces of information, the application of professional judgment and the exercise of the Warden’s discretion.”" As will soon become apparent, largely by reason of what it found to be an individualized process, the Federal Court dismissed the motion for certification. . Bouab v. Canada (Attorney General)
In Bouab v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from a JR against "a decision of the Independent Chairperson of the Warkworth Institution Disciplinary Court" regarding urine testing.
The case is illustrative of prison disciple procedures under the CCRA, which rarely reach this level of court:[2] Mr. Bouab is an inmate at Warkworth Institution. On November 22, 2022, he was summoned to provide a urine sample as part of a random selection urinalysis program, conducted pursuant to paragraph 54(b) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA). Despite drinking water both before and after arriving at the collection area, Mr. Bouab was unable to provide enough urine to constitute the minimum 30-millilitre sample required by the Commissioner’s directive 566-10: Urinalysis testing. Paragraph 66(1)(d) of the Corrections and Conditional Release Regulations, S.O.R./92-620 stipulates that the collector shall give the donor up to two hours to provide a sample, from the time of a demand. After discussing his options with the collection officer, Mr. Bouab left the collection area after approximately one hour and 40 minutes to attend to his work obligations.
[3] Mr. Bouab was charged with the disciplinary offence of failing or refusing to provide a urine sample pursuant to paragraph 40(l) of the CCRA. He pled not guilty, relying on his inability to provide the required sample. At the conclusion of the disciplinary hearing, the Chairperson delivered his decision orally, finding Mr. Bouab guilty of the offence as charged. Although the Chairperson stated that he preferred Mr. Bouab’s evidence to that of the collection officer and found that Mr. Bouab had acted in good faith and was cooperative throughout, the Chairperson rejected Mr. Bouab’s explanation that he was unable to provide the sample. The Chairperson noted that if Mr. Bouab had remained in the collection area the entire two hours, the Chairperson would have had a "“reasonable doubt”" regarding Mr. Bouab’s inability to provide the required urine sample.
[4] The Federal Court dismissed Mr. Bouab’s application for judicial review, finding that the Chairperson’s decision was reasonable. The Federal Court disagreed with Mr. Bouab’s arguments that the Chairperson’s sole justification for his finding of guilt was Mr. Bouab’s voluntary departure from the collection area before the two-hour period had elapsed and that the Chairperson had made factual findings that were legally incompatible with a finding of guilt. The Federal Court found instead that, when read as a whole, the reasons for the decision demonstrated that the Chairperson had considered Mr. Bouab’s defence of involuntariness, but ultimately was not satisfied that the failure to provide a sufficient urine sample was involuntary.
[5] Mr. Bouab now appeals to this Court.
....
[8] Mr. Bouab submits that the Chairperson’s decision is unreasonable. To some degree, he raises the same arguments he made before the Federal Court. He argues that the Chairperson’s finding of guilt beyond a reasonable doubt is unjustified in relation to the Chairperson’s findings of fact (that Mr. Bouab acted in good faith and was cooperative) and the Chairperson’s acceptance of Mr. Bouab’s exculpatory evidence. Mr. Bouab contends that the Chairperson conflated Mr. Bouab’s voluntary departure from the collection area before the two hours had elapsed with the voluntariness of his failure or refusal to provide a urine sample.
[9] While the Chairperson’s reasons could have been better articulated, I am satisfied that the Chairperson did not conflate, as suggested, Mr. Bouab’s voluntary early departure from the collection area with the voluntariness of his failure or refusal to provide a urine sample.
[10] I agree with Mr. Bouab that failing to stay at the collection area for the full two-hour collection period does not automatically result in a finding of guilt beyond a reasonable doubt in accordance with subsection 43(3) of the CCRA. In Ayotte v. Canada (Attorney General), 2003 FCA 429, this Court held that the act or omission under paragraph 40(l) of the CCRA must be voluntary to be culpable (Ayotte at para. 18).
[11] I also agree that the Chairperson accepted that Mr. Bouab was unable to provide a urine sample in the one hour and forty minutes he remained in the collection area despite his "“good efforts”" to do so. However, the Chairperson’s reasons, read as a whole and in their overall context, demonstrate that the Chairperson found that Mr. Bouab may have been able to provide a sufficient urine sample by topping up what he had already provided if he had stayed the extra twenty minutes allowed, given the amount of water he had consumed both before and during the testing period. By leaving the collection area early, Mr. Bouab essentially deprived himself of the ability to comply with the request by topping up the sample or, in the event he was unable to do so, to mount a defence that could have raised a reasonable doubt in the Chairperson’s mind that Mr. Bouab’s failure to provide a urine sample was involuntary. Mr. Bouab conflates the Chairperson’s acceptance of the evidence with the acceptance of Mr. Bouab’s defence. . Dorsey v. Canada (Attorney General)
In Dorsey v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considered habeas corpus where prisoners applied to transfer to lower-security prisons but were denied. In these quotes the court summarizes aspects of the federal prison system's 'security classification framework':B. SECURITY CLASSIFICATION FRAMEWORK
[12] The Correctional Service of Canada (“CSC”) classifies each offender as minimum, medium, or maximum security in accordance with ss. 17 and 18 of the Corrections and Conditional Release Regulations, SOR/92-620 (“CCRR”) under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”). Offenders classified as either medium or maximum security must be reassessed every two years.
[13] Section 28 of the CCRA requires CSC to ensure that each offender receives the least restrictive classification and is placed in the least restrictive setting appropriate in the offender’s circumstances based on several relevant factors:28. If a person is or is to be confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which they are confined is one that provides them with the least restrictive environment for that person, taking into account
(a) the degree and kind of custody and control necessary for
(i) the safety of the public,
(ii) the safety of that person and other persons in the penitentiary, and
(iii) the security of the penitentiary;
(b) accessibility to
(i) the person’s home community and family,
(ii) a compatible cultural environment, and
(iii) a compatible linguistic environment; and
(c) the availability of appropriate programs and services and the person’s willingness to participate in those programs. [14] Under the CCRR, an inmate can grieve a reclassification decision with which they disagree. If the grievance process is not resolved to the inmate’s satisfaction, they can then appeal to the Commissioner of Corrections (or to a senior CSC staff member on the Commissioner’s behalf): ss. 74-82. And, of course, an inmate can subsequently seek judicial review in the Federal Court, which was not pursued in this case by either appellant. . Canadian Broadcasting Corporation v. Canada (Parole Board)
In Canadian Broadcasting Corporation v. Canada (Parole Board) (Fed CA, 2023) the Federal Court of Appeal considered an appeal from a JR of a Parole Board of Canada decision to refuse access to audio recordings of several parole hearings. In these quotes the court resolves the complex statutory issue by (unconvincing) resort to the Privacy Act [s.8(2)(m)(i)], where the public interest in the hearings is weighed with the privacy interests of the offenders:[71] Provision does exist for the disclosure of personal information in certain circumstances, notably under paragraph 8(2)(m) of the Privacy Act, which I reproduce once more for the sake of convenience:8 (2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
8 (2) Sous réserve d’autres lois fédérales, la communication des renseignements personnels qui relèvent d’une institution fédérale est autorisée dans les cas suivants :
...
(m) for any purpose where, in the opinion of the head of the institution,
(m) communication à toute autre fin dans les cas où, de l’avis du responsable de l’institution :
(i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or
(i) des raisons d’intérêt public justifieraient nettement une éventuelle violation de la vie privée,
(ii) disclosure would clearly benefit the individual to whom the information relates. ....
[89] As a result, I would allow the appeal from the Federal Court, set aside the Federal Court’s judgment, and allow the CBC’s application for judicial review and set aside the Board’s decision. Making the order that the Federal Court should have made, I would order:1)That the matter be returned to the Parole Board of Canada for reconsideration on the basis that the weighing of interests contemplated in subparagraph 8(2)(m)(i) of the Privacy Act must be undertaken with respect to each request on the basis of the considerations set out in paragraphs 77 to 84 of these reasons; ...
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