The Constitutionality of Classification: Indigenous Overrepresentation and Security Policy in Canadian Federal Penitentiaries

This article examines one component of the Correctional Service of Canada's (CSC) risk classification scheme. The CSC uses the Custody Rating Scale (CRS), a 12-item actuarial instrument, to measure risk and to provide security classification recommendations. Empirical data shows that while CRS recommendations may have some predictive validity, certain of the 12 items the CRS includes do not, particularly for Indigenous prisoners. This article makes the case that the inclusion ofsuch items in the CRS violates prisoner's rights under section 7 of the Charter by depriving them of liberty in a manner that is arbitrary and overbroad. Habeas corpus is discussed as a feasible remedy to unconstitutional security classification in prisons, consistent with the evolution of the section 10(c) jurisprudence.The implications of unconstitutional security classification policies in relation to remedial provisions of the Corrections and Conditional Release Act, namely section 81, are highlighted throughout.