Cross-Cultural Bias

  • December 01, 2017
  • Frances Rosner

Psychological Testing Not Validated for Indigenous Offenders

Common psychological tests that form part of risk assessments have been impugned as being susceptible to cross-cultural bias when applied to Indigenous offenders. 

The Hare Psychopathy Checklist Revised, Violence Risk Appraisal Guide, Sex Offender Risk Appraisal Guide, Static 99 and the Violence Risk Scale – Sex Offender psychological assessments were designed and tested using background information and data from primarily non-Indigenous populations. 

Despite the lack of empirical evidence proving these tests reliable for Indigenous offenders, assessors and decision-makers have been utilizing them as tools to predict recidivism and psychopathy in our justice system for decades. 

Risk assessments are relied on by judges presiding over criminal matters such as dangerous offender/long-term supervision order applications and they are extensively relied on by the Correctional Service of Canada (“CSC”) in its management of the inmate population. 

The CSC has known since the 1990s that research needed to be conducted on the reliability of the impugned tests, but it failed to embark on the research citing budgetary constraints as the reason for its inaction. Métis inmate, Jeffrey Ewert asserts that the continued use of these unreliable test scores by the CSC leads to greater restrictions and more time in jail. 

Arguments were heard at the Supreme Court of Canada on October 12th, 2017 that the CSC contravened its statutory requirement to “take all reasonable steps to ensure that any information about an offender it uses is as accurate, up to date and complete as possible” giving rise to breaches of sections 7 and 15 of the Charter

It was argued that section 7 is engaged because unreliable test scores are used to restrict and deprive an Indigenous inmate’s liberty and security of person. 

Section 15 is triggered because test scores are validated for non-Indigenous inmates but not for Indigenous inmates which leads to disparate correctional outcomes. 

Contextualized arguments were advanced by Mr. Ewert and intervenors about substantive inequality and the heightened need to address these systemic institutional shortcomings given the overincarceration epidemic and the history of colonization, marginalization and residential schools. Judgment was reserved. 

  • Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 4(g) & 24(1).
  • Jeffrey G. Ewert v. Her Majesty the Queen in Right of Canada (the Commissioner of the Correctional Service of Canada, the Warden of Kent Institution and the Warden of Mission Institution, 2017 CanLII 12225 (SCC) 
  • Supreme Court of Canada Webcast, October 12, 2017 
  • Ewert v. Canada (Attorney General), 2015 FC 1093 (CanLII)
  • Canada v. Ewert, 2016 FCA 203 (CanLII)