Executive Summary – Key Legal & Evidentiary Issues

• Challenge focused on systemic discrimination against female Indigenous inmates under Section 15(1) of the Charter.

• Plaintiffs alleged CSC’s Custody Rating Scale (CRS) and related tools overclassified risk, perpetuating colonial stereotypes.

• Federal Court denied class certification due to insufficient pleadings and lack of common issues across proposed subclasses.

• Appellant argued discrimination exists in the aggregate, regardless of individual outcomes, and should still be actionable.

• Debate centered on whether use of flawed tools alone, without individualized harm, can ground a Charter claim.

• Appeal succeeded in part; leave granted to amend the claim and reapply for certification one final time.

Facts of the Case

Aileen Michel challenged the Federal Court’s dismissal of a proposed class action alleging systemic discrimination by Correctional Service Canada (CSC) against female Indigenous inmates. The core of the lawsuit focused on the Custody Rating Scale (CRS)—a risk assessment tool used to classify inmates for institutional placement—and other related instruments used in the intake process.

Michel and her co-plaintiff, Martha Kahnapace (who was not a party to the appeal), originally proposed a class action on behalf of various subclasses of Indigenous female offenders. These subclasses evolved during the litigation to focus on those who had the CRS administered after January 1, 2005. They alleged that the CRS and related tools (Static Factor Assessment, Dynamic Factor Identification and Analysis-Revised, and Reintegration Potential scores) disproportionately rated Indigenous women as higher-risk than warranted, resulting in more severe incarceration conditions.

The plaintiffs claimed that this overclassification:

• Was systemically biased

• Violated section 15(1) of the Canadian Charter of Rights and Freedoms (equality rights)

• Breached section 79.1 of the Corrections and Conditional Release Act, which requires CSC to consider Indigenous-specific factors during decision-making

They sought general damages, Charter remedies under sections 24 and 52, and an injunction halting the use of these tools.

Arguments and Court’s Analysis

The Federal Court rejected the motion for certification, holding that the Statement of Claim:

• Failed to plead necessary material facts, such as how exactly the CRS caused discrimination

• Did not properly define the class or subclasses

• Did not link the alleged systemic biases to concrete harms such as longer or harsher sentences

Crucially, the Court held that common issues were lacking. It found that security classifications were individualized decisions made by CSC Wardens, based on a wide array of information beyond the CRS. Therefore, even if the CRS was flawed, liability could not be assessed on a class-wide basis.

The Federal Court also denied leave to amend the claim, stating it would serve no purpose as the certification test could not be satisfied.

Outcome on Appeal

The Federal Court of Appeal allowed the appeal in part. Writing for a unanimous bench, Justice Gleason found that:

• The section 15 Charter claim was insufficiently pleaded, but could be cured by amendment

• The Federal Court erred by refusing to grant leave to amend and reapply for certification

Importantly, the Court recognized that systemic or aggregate discrimination could support a Charter claim, even if individual claimants were not personally overclassified. This aligned with precedents on “partial discrimination,” where not every group member must suffer the same harm to establish a rights violation.

The Court remitted the case back to the Federal Court, granting Ms. Michel:

• One final opportunity to amend the Statement of Claim, and

• One chance to reapply for certification, using the same evidentiary record