Probative of Prejudice: Procedural Unfairness Underlying Security Threat Group Classifications in Canadian Prisons

Authors

Shane Martinez, Martinez Law

Publication Date

3-31-2025

Document Type

Article

English Abstract

Achieving meaningful oversight and enforcement of prisoners’ rights has long been a challenge for those incarcerated in Canada’s prison system. This is illustrated in part by how the Correctional Service of Canada (CSC) applies the Security Threat Group (STG) classification to Black prisoners. CSC disproportionately classifies Black prisoners as being members or affiliates of STGS–even when those allegations are of unknown reliability. This paper analytically highlights how this practice impacts the liberty interests of these prisoners on the basis of unproven allegations. It also considers how a lack of procedural safeguards in this context contributes to a larger pattern of systemic anti-Black racism within Canadian prisons. This paper argues that requiring STG involvement to be proven beyond a reasonable doubt before an independent decision-maker would serve as an important reform toward addressing this issue. While such a measure would not remedy the systemic nature of anti-Black racism within CSC, it could nevertheless meaningfully reduce instances of unfounded STG classifications for all prisoners, avoid arbitrarily prolonging periods of incarceration, and serve as a basis to expand procedural safeguards in response to other forms of over-securitization.

Citation Information

Martinez, Shane. "Probative of Prejudice: Procedural Unfairness Underlying Security Threat Group Classifications in Canadian Prisons." Journal of Law and Social Policy 37. (2025): 49-68.
DOI: https://doi.org/10.60082/0829-3929.1490
https://digitalcommons.osgoode.yorku.ca/jlsp/vol37/iss1/4

References

1 Baril v Obelnicki, 2007 MBCA 40 at para 112. https://doi.org/10.1590/S0100-39842007000200018

2 Canada, Office of the Correctional Investigator, Annual Report 2021-2022 (Ottawa: Office of the Correctional Investigator, 2022) at 46 online (pdf): https://oci-bec.gc.ca/sites/default/files/2023-06/annrpt20212022-eng.pdf [perma.cc/2BXU-E296] [OCI Annual Report 2021-2022].

3 Ibid at 45.

4 Canada's first prisons were all considered "maximum security" and were "administered by a strict regime-productive labour during the day, solitary confinement during leisure time. A rule of silence was enforced at all times." See Correctional Service Canada, "Penitentiaries in Canada" (3 August 2021), online: https://www.canada.ca/en/correctional-service/corporate/history-csc/penitentiaries-canada.html [https://perma.cc/9HFV-4EQE].

5 Corrections and Conditional Release Act, SC 1992, c 20, s 4(d) [CCRA].

6 Canada, Senate, Standing Senate Committee on Human Rights, Interim Report - Study on the Human Rights of Federally-Sentenced Persons: The Most Basic Human Right is to be Treated as a Human Being (Ottawa: Senate, February 2019) at 63 online (pdf): https://sencanada.ca/content/sen/committee/421/RIDR/reports/RIDR_Report_Prisioners_e.pdf [https://perma.cc/WXZ8-4NQJ].

7 The continued dysfunction of the only internal complaint procedure available to federal prisoners maintains this. See infra at IV(B) - reverse onus to overcome a STG classification.

8 Each of these problems were identified in Canada, Senate, Standing Senate Committee on Human Rights, Study on the Human Rights of Federally-Sentenced Persons: The Most Basic Human Right is to be Treated as a Human Being (June 2019) at 22, online: https://sencanada.ca/content/sen/committee/421/RIDR/reports/RIDR_Report_Prisioners_e.pdf.

9 Ibid.

10 Charbel Saghbini & Lysiane Paquin-Marseille, Black People in Criminal Courts in Canada: An Exploration Using the Relative Rate Index (Ottawa: Department of Justice, 2023) at 7 online (pdf): https://www.justice.gc.ca/eng/rppr/jr/rrbb-bbrr/pdf/RSD2023_Report-Black-EN.pdf [https://perma.cc/PA6R-PD98].

11 Ibid at 8 and 9.

12 Ibid.

13 "Many of these disparities persist even after accounting for participation in criminal behavior or community-level crime rates (Wortley & Jung, 2020), suggesting they are due to racial profiling or state surveillance rather than individual behavior." Siobhan O'Connell & Ayobami Laniyonu, "Race, Gender, and Risk Assessments in Canadian Federal Prison" (2023) Race and Justice at 4 and 5.

14 Saghbini & Paquin-Marseille, supra note 10 at 7.

15 Saghbini & Paquin-Marseille, supra note 10 at 7.

16 O'Connell & Laniyonu, supra note 13 at 3 and 17

17 Inflexible conclusions by the courts that "the administration of a criminal sentence under the CCRA is a civil matter" reflect a historical disconnect between the courts and the prison system that ignores the inextricable nexus between the passing and administration of a criminal sentence (see Germa v Canada (Atlantic Institution), 2014 CanLII 72019 (NB CA) at para. 9). A similar position, in the context of disciplinary systems in Saskatchewan's provincial jails, was recently expressed by the Saskatchewan Court of Appeal in John Howard Society of Saskatchewan v Saskatchewan (Attorney General), 2022 SKCA 144. At the time this paper was written, the matter was awaiting further final disposition from the Supreme Court of Canada.

18 Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 127 [Vavilov].

19 Martineau v Matsqui Institution, [1980] 1 SCR 602.

20 Cardinal v Director of Kent Institution, [1985] 2 SCR 643 at para 14.

21 May v Ferndale Institution, 2005 SCC 82 at paras 90 and 92 [May v Ferndale Institution].

22 Mission Institution v Khela, 2014 SCC 24 at para 67 [Mission Institution v Khela].

23 Vavilov, supra note 18, at para 77.

24 Ibid; see also Baker v Canada (Minister of Citizenship and Immigration), 1999 SCC 699 at paras 23-27 [Baker v Canada].

25 David M Tanovich, "Combatting Stereotyping & Facilitating Justice: McLachlin's Vision for the Law of Evidence" (2019) CanLIIDocs 4408 at 5 footnote 21, online: https://canlii.ca/t/t0vg [https://perma.cc/8RUG-A7EV].

26 R v Hart, 2014 SCC 52 at para 100, citing R v Khelawon, 2006 SCC 57 at paras 61 - 63.

27 R v Humaid, 2006 CanLII 12287 (ON CA) at para 57. Endorsed in R v Blackman, 2008 SCC 37 at para 51 and Hart, ibid at para 97.

28 R v LB, 1997 CanLII 3187 (ON CA) at para 24.

29 Correctional Service of Canada, "Interim Policy Bulletin 689" (13 June 2022), online: https://www.csc-scc.gc.ca/lois-et-reglements/689-ipb-en.shtml [https://perma.cc/5L2H-CJC6].

30 See Correctional Service Canada, Commissioner's Directive 568-3: Identification and Management of Criminal Organizations (29 September 2014) at para 17, online: https://www.canada.ca/en/correctionalservice/corporate/acts-regulations-policy/commissioners-directives/568-3.html [https://perma.cc/Z4DT-H54M]. It is questionable whether five working days meets CSC's own statutory duty under section 27(1) of the CCRA, which states that "Where an offender is entitled by this Part or the regulations to make representations in relation to a decision to be taken by the Service about the offender, the person or body that is to take the decision shall, subject to subsection (3), give the offender, a reasonable period before the decision is to be taken, all the information to be considered in the taking of the decision or a summary of that information."

31 Ibid.

32 OCI Annual Report 2021-2022, supra note 2 at 54-55, citing Assessment of Affiliation with a Security Threat Group (CSC Form 1184-02).

33 OCI Annual Report 2021-2022, supra note 2 at 55, citing Assessment of Affiliation with a Security Threat Group (CSC Form 1184-02).

34 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UNGA, 70th Sess, UN Doc A/70/490 GA Res 70/175 (2015) at Rule 10. The Canadian government has yet to adopt the Nelson Mandela Rules as being applicable to CSC, effectively denying prisoners an important tool which could be used to achieve accountability and transparency in the prison system, see Canada, Senate, Standing Senate Committee on Human Rights, Study on the Human Rights of Federally-Sentenced Persons: The Most Basic Human Right is to be Treated as a Human Being (June 2019) at 58, online: https://sencanada.ca/content/sen/committee/421/RIDR/reports/RIDR_Report_Prisioners_e.pdf.

35 Correctional Service of Canada, Commissioner's Directive (CD) 705-6: Correctional planning and criminal profile (15 April 2019).

36 Correctional Service Canada, Commissioner's Directive (CD) 083: Inmate committees (14 August 2023).

37 Ibid.

38 Correctional Service of Canada, Commissioner's Directive (CD) 730: Offender Program Assignments and Inmate Payments (22 August 2016).

39 Commissioner's Directive (CD) 568-3, supra note 30.

40 Parole Board of Canada, Decision-Making Policy Manual for Board, 3rd Ed., Annex D at 3 online (pdf): https://www.canada.ca/content/dam/pbc-clcc/documents/manual-manuel/Decision-Making%20Policy%20Manual%20for%20Board%20Members%203rd%20Edition.pdf [https://perma.cc/2KAG-7GAV].

41 Ibid at 6.

42 Jordan v Canada (Attorney General), 2014 ONSC 2898 at pp 7-8 and 15.

43 "Over-securitization" refers to the disproportionate assignment of higher security classifications, see OCI Annual Report 2021-2022, supra note 2 at 53.

44 OCI Annual Report 2021-2022, supra note 2 at 46.

45 OCI Annual Report 2021-2022, supra note 2 at 41.

46 Canada, Senate, Standing Senate Committee on Human Rights, Human Rights of Federally-Sentenced Persons (Ottawa: Senate, June 2021) at 253-254 online (pdf): https://sencanada.ca/content/sen/committee/432/RIDR/reports/2021-06-16_FederallySentenced_e.pdf [https://perma.cc/6TRQ-3P4H] [Standing Senate Committee on Human Rights].

47 Ibid at 253; Data also suggests that CSC might be under-classifying white prisoners who are gang members. Statistics from the Public Safety Canada's 2019 Annual Report on Corrections and Conditional Release show that white prisoners made up approximately 54.2% of the prison population, while Indigenous prisoners made up 25.2%, and Black prisoners made up approximately 7.2%. According to the OCI's 2021-2022 annual report, "Nearly one quarter (23.8%) of the incarcerated Black population has an identified security threat group (STG) or gang affiliation. By comparison, 21.9% of Indigenous, 5.7% of White and 12.7% of peoples of colour have a gang affiliation on file." Although 5.7% of white prisoners are labeled as STG-affiliated, this figure seems inconsistent with data collected by the police-driven Astwood Strategy survey, which in 2004 reported that "largest proportion of youth gang members are African Canadian (25%), followed by First Nations (21%) and Caucasian (18%)." More apparent still is the inconsistency with data collected by researchers Mark Nafekh and Yvonne Stys (also released in 2004), who reported that of 916 "identified urban gang affiliates in prison between 1996 and 2003 [...] 37% were African-Canadian, 29% were Caucasian, 20% were Aboriginal, 3% were Asian, and 11% were from other backgrounds." While these figures are dated, they still appear to be relied on by the Ministry of Public Safety. Recognition of under-classification should not be misinterpreted as calling for CSC to subject more people to the STG classification system. However it does suggest potential issues of favourable bias toward white prisoners who are gang members if they are being disproportionately under-classified as members of security threat groups. See Canada, Public Safety Canada, Corrections and Conditional Release Statistical Overview (Public Safety Canada, 2019) at 55 online (pdf): https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ccrso-2019/ccrso-2019-en.pdf [https://perma.cc/G49K-RJ7P]. See also Canada, Public Safety Canada, Youth gangs in Canada: What do we know? (Public Safety Canada, 2007) at 2 online (pdf): https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/gngs-cnd/gngs-cnd-eng.pdf [https://perma.cc/PP8V-LWSE]. See also Canada, Toni Hemmati, The Nature of Canadian Urban Gangs and their use of Firearms: A Review of the Literature and Police Survey (Department of Justice Canada, 30 August 2007) at 13 online (pdf): https://www.justice.gc.ca/eng/rp-pr/csj-sjc/crime/rr07_1/index.html [https://perma.cc/F2MX-N5JF].

48 OCI Annual Report 2021-2022, supra note 2 at 40.

49 OCI Annual Report 2021-2022, supra note 2 at 54. See also Standing Senate Committee on Human Rights, supra note 46 at pp 253-254.

50 The OCI's 2021-2022 annual report observed that Black persons "appear to be more statistically likely to be gang-affiliated," see supra note 2 at 54. Questions exist though about the reliability of the data used in reaching such a conclusion. Gang data is often collected by police and may be impacted by the well-documented systemic bias that exists throughout policing agencies. See The Nature of Canadian Urban Gangs and their use of Firearms: A Review of the Literature and Police Survey, supra note 47. See also House of Commons, Systemic Racism in Policing in Canada: Report of the Standing Committee on Public Safety and National Security (June 2021) (Chair: John McKay) online: https://www.ourcommons.ca/Content/Committee/432/SECU/Reports/RP11434998/securp06/securp06-e.pdf [https://perma.cc/RWF3-7E36].

51 OCI Annual Report 2021-2022, supra note 2 at 55.

52 OCI Annual Report 2021-2022, supra note 2 at 56.

53 Standing Senate Committee on Human Rights, supra note 46 at 202.

54 Standing Senate Committee on Human Rights, supra note 46 at 217.

55 Office of Auditor General of Canada, Reports of the Auditor General of Canada to the Parliament of Canada, Report 4: Systemic Barriers-Correctional Service Canada, Independent Auditor's Report (OAG, 2022) at 5 and 9 online (pdf): https://www.oag-bvg.gc.ca/internet/docs/parl_oag_202205_04_e.pdf [https://perma.cc/Q7TY-BZ92] [Auditor General of Canada].

56 Ewert v Canada, 2018 SCC 30 at para 59.

57 The OCI and Auditor General have both repeatedly found that Indigenous prisoners experience similar systemic disadvantage and mistreatment as Black prisoners. Auditor General of Canada, supra note 55 at 10.

58 OCI Annual Report 2021-2022, supra note 2 at 53.

59 OCI Annual Report 2021-2022, supra note 2 at 48.

60 OCI Annual Report 2021-2022, supra note 2 at 42.

61 Canadian Civil Liberties Association, Fact Sheet: Anti-Black Racism in Canada's Criminal Justice System (November 2021) online (pdf): https://ccla.org/wp-content/uploads/2021/12/Anti-Black-Racism-Fact-Sheet-2021.pdf [https://perma.cc/EP6X-PGPM].

62 "Not only do they have to go through a number of institutional steps, but the CSC must also confirm with law enforcement agencies that the individual is no longer a person of concern. Even after obtaining agreement from the CSC and law enforcement that the label no longer applies, it remains on the federally-sentenced person's file as "inactive" rather than being removed completely," Standing Senate Committee on Human Rights, supra note 46 at 202.

63 OCI Annual Report 2021-2022, supra note 2 at 55-56.

64 Commissioner's Directive (CD) 568-3, supra note 30.

65 Corrections and Conditional Release Regulations, SOR/92-620, ss 74-82 [CCRR].

66 Spidel v Canada (Attorney General), 2012 FC 958 at paras 47-62.

67 May v Ferndale Institution, supra note 21 at paras 62-64.

68 Senate of Canada, Standing Senate Committee on Legal and Constitutional Affairs, Evidence of John Conroy (12 December 2012) online: https://sencanada.ca/en/Content/Sen/committee/411/lcjc/49920-e [https://perma.cc/G6C4-S6PX].

69 Correctional Service of Canada, Audit of Offender Redress, 3.0 Audit Findings and Recommendations (CSC 6 March 2018) online (pdf): https://www.canada.ca/content/dam/csc-scc/migration/publications/092/005007-2545-en.pdf [https://perma.cc/JL9Z-5EAW]. Despite all of this, the Federal Court has repeatedly described the grievance procedure as an "adequate alternative remedy that must be exhausted prior to seeking judicial review," see Blair v. Canada (Attorney General), 2022 FC 957 at para 44 [Blair v Canada].

70 Office of the Correctional Investigator, Annual Report 2023-2024 (Ottawa: OCI, 2024) at 17 online (pdf): https://oci-bec.gc.ca/sites/default/files/2024-10/Annual%20Report%20EN%202024%20-%20WEB.pdf [https://perma.cc/8HE5-A985].

71 Dumas v Leclerc Institute, [1986] 2 SCR 459 at paras 11-12 [Dumas].

72 Mission Institution v Khela, supra note 22 at para 30.

73 Purdy v Pacific Institution (Warden), 2016 BCSC 1201 at paras 28-30, citing Mapara v Ferndale Institution (Warden), 2012 BCCA 127 at para 15. See also Dumas, supra note 71 at 11.

74 R v Miller, [1985] 2 SCR 613 at para 35.

75 Federally-Sentenced Persons (February 2019), supra note 6 at 63.

76 "The economic outcomes of Canadian federal offenders are quite poor, even after an average of 14 years following release from a correctional institution." Public Safety Canada, Kelly M. Babchishin, Leslie-Anne Keown, & Kimberly P. Mularczyk, Economic Outcomes of Canadian Federal Offenders (Public Safety Canada, 2021) online (pdf): https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2021-r002/2021-r002-en.pdf [https://perma.cc/X8RT-K6F3].

77 Vavilov, supra note 18 at para 87.

78 See Eunick v Canada (Attorney General), 2020 FC 28 at para 32 [Eunick v Canada]. See also Vavliov, supra note 18 at 125-126. See also Baker v Canada, supra note 24 at para 48.

79 Lisa Kerr, "Easy Prisoner Cases", The Supreme Court Law Review: Osgoode's Annual Constitutional Cases Conference 71 (2015) at 236 online: https://digitalcommons.osgoode.yorku.ca/sclr/vol71/iss1/9 [https://perma.cc/82RU-7ZTZ]. https://doi.org/10.60082/2563-8505.1311

80 For examples see Eunick v Canada, supra note 78, Blair v Canada, supra note 69, and Fontaine v Canada (Attorney General), 2021 FC 309.

81 A Wayne MacKay, "Inmates' Rights: Lost in the Maze of Prison Bureaucracy?" (1988) 11 Dal LJ 698 at 702, as cited in Debra Parkes, "A Prisoners' Charter? Reflections on Prisoner Litigation Under the Canadian Charter of Rights and Freedom" (2007) 40:2 UBC L Rev 629 at 643.

82 Correctional Service Canada, "Timeline: 1960-1979" (21 August 2018), online: https://www.canada.ca/en/correctional-service/corporate/history-csc/timeline/1960-1979.html [https://perma.cc/LS34-NJPM].

83 Debra Parkes, "A Prisoners' Charter? Reflections on Prisoner Litigation Under the Canadian Charter of Rights and Freedom" (2007) 40:2 UBC L Rev 629 at 644.

84 CCRA, supra note 5 at s 38.

85 CCRA, supra note 5 at s 40(m).

86 CSC's disciplinary system is established by sections 38-44 of the CCRA, and sections 40-44 of the CCRR. Hearings of allegations involving standalone minor disciplinary offences are conducted by the institutional head or their designate. See also CCRR, supra note 65 at s 27(1).

87 R v Shubley, [1990] 1 SCR 3.

88 Hendrickson v Kent Institution, (1990) 32 FTR 296 at 299. https://doi.org/10.1007/BF00593048

89 Debra Parkes, "A Prisoners' Charter? Reflections on Prisoner Litigation Under the Canadian Charter of Rights and Freedom" (2007) 40:2 UBC L Rev 629 at 644 citing Professor Jackson's Justice Behind the Walls.

90 Lemoy v Canada (Attorney General), 2009 FC 448 at para 16.

91 CCRR, supra note 65 at s 31(1). The extent to which a prisoner can exercise their right to counsel is, of course, impacted by access to Legal Aid or their ability to privately fund their defence.

92 CCRA, supra note 5 at s 43(3).

93 CCRR, supra note 65 at s 35(2).

94 CCRR, supra note 65 at s 34.

95 CCRR, supra note 65 at s 41(3).

96 Hryniak v Mauldin, 2014 SCC 7 at para 1.

97 Vavilov, supra note 18 at para 242.

98 CCRA, supra note 5 at s 43(3).

99 R v Dinardo, 2015 ONSC 1804 at para 97 [Dinardo].

100 John Howard Society of Saskatchewan v Government of Saskatchewan (Attorney General for Saskatchewan), 2024 CanLII 537 (SCC).

101 John Howard Society of Saskatchewan v Saskatchewan (Attorney General), SCC File No 40608 (Factum, Intervener, West Coast Prison Justice Society at para 29) online (pdf): https://www.scc-csc.ca/WebDocuments-DocumentsWeb/40608/FM170_Intervener_West-Coast-Prison-Justice-Society.pdf [https://perma.cc/R6PX-W9SB] [emphasis added].

102 Ibid at para 20.

103 R v Whitty, 1999 CanLII 18919 (NL CA) at para 96 [Whitty] [emphasis added].

104 Dinardo, supra note 99 at para 96.

105 Whitty, supra note 103 at para 85.

106 R v Angelillo, 2006 SCC 55 at para 20. https://doi.org/10.1157/13086027

107 R v Gardiner, [1982] 2 SCR 368 at p 414.

108 I briefly addressed the artificial distinction between the imposition and administration of sentences in the context of prison labour in "Prison Labour: The Internal Contradiction" (2023) 43:3 For the Defence.

109 Tehrankari v Canada (Correctional Service), 2000 CanLII 15218 (FC) at para 51.

110 Vavilov, supra note 18 at para 135.