LUO Prison Justice Committee Concerned Use of SAFER AI Violates Constitution and Human Rights Code

For the last five years, Ontario has used discriminatory artificial intelligence (AI) in its administration of provincial jails, which has imported damaging stereotypes of Black and Indigenous criminality and thereby put Black and Indigenous incarcerated people at greater risk. 

Security Assessment For Evaluating Risk (SAFER) is an algorithmic tool that assesses and assigns a security classification to incarcerated people, which determines what level of scrutiny, constraint and risk they will experience in jail. A class action suit and recent reporting has shown that SAFER assigns security assessments for Black and Indigenous incarcerated persons that are consistently higher than the scores with which they entered. Further, they are not provided with reasons for the increase in their security assessment, and they are not informed of their right to challenge the assessment through an appeal process. While AI tools are presented as modern, neutral and efficient, research has shown that AI perpetuates the prejudices and biases present within the troves of human-created data on which it was trained. Here, Ontario has put Black and Indigenous incarcerated people at greater risk by implementing an algorithm that presumes them to be dangerous, based on bias and stereotype. Beside the social cost of implementing racist prejudice in the administration of provincial jails, such stereotyping also has a psychological impact on the affected Black and Indigenous incarcerated persons, eroding their self-esteem and undermining their self-regard.

The Law Union of Ontario Prison Justice Committee is concerned that the Government of Ontario and the Ministry of the Solicitor General are violating the Charter and human rights of Black and Indigenous incarcerated persons in the provincial carceral system.

Ontario’s use of a biased and prejudicial AI safety assessment tool violates Black and Indigenous incarcerated people’s right to equality. The Supreme Court of Canada and Court of Appeal for Ontario have taken judicial notice of the legacies and perpetration of racism and colonialism that affect Black and Indigenous persons within the criminal legal and carceral system (see R v Gladue, 1999 CanLII 679 (SCC) at para 83; R v Ipeelee, 2012 SCC 13 at paras 56-63; R v Morris, 2021 ONCA 680 at para 123). This has historically resulted in disproportionate criminal scrutiny and incarceration, and it now manifests in the assignment of unreasonable and unjustifiable security classifications. In Dorsey, the Supreme Court recently recognized that a deprivation of liberty within the carceral system constitutes an injury to Charter-protected interests (see Dorsey v Canada (Attorney General), 2025 SCC 38 at para 38). By being unjustifiably assigned higher security classifications, through the importation of harmful, racist stereotypes owing to algorithmic bias, Black and Indigenous incarcerated persons in Ontario are unreasonably presumed to be dangerous, thus perpetuating an arbitrary and unjust prejudice. This violates Black and Indigenous incarcerated people’s right to equality (see, most recently, the Supreme Court’s restatement of its jurisprudence on the Charter right to equality at Quebec (Attorney General) v Kanyinda, 2026 SCC 7 at paras 50-68).

The Ontario government’s use of a biased and prejudicial AI tool to perpetrate anti-Black and anti-Indigenous stereotyping also constitutes a breach of its own duties under the Human Rights Code, to ensure equal treatment in the provision of its services and accommodations (see Human Rights Code, RSO 1990, c H.19, ss 1-2).

In Ewert, the Supreme Court found that Correctional Services Canada’s (CSC) use of an outdated security assessment tool that resulted in unjustifiably severe security classification assignments for Indigenous incarcerated persons breached CSC’s statutory duty under the Corrections and Conditional Release Act to ensure accuracy in its processing of information for persons within its custody (see Corrections and Conditional Release Act, SC 1992, c 20, s 24(1)). Failing to ensure its security decisions were responsive to the individual being assessed and did not import stereotype or bias further breached CSC’s obligation to ensure substantive equality in its treatment of Indigenous and other minority prisoners (see Ewert v Canada, 2018 SCC 30 at paras 51-67. See also Corrections and Conditional Release Act, SC 1992, c 20, s 4(g)).

The Government of Ontario bears, and has breached, this duty as well. Ontario has passed legislation that recognizes a similar duty to ensure substantive equality in security assessments, but the legislation has not yet come into force. In 2018, Ontario passed the Correctional Services and Reintegration Act (“the Act”), which expressly recognized its obligation to “assess” incarcerated people using an “evidence-based security classification tool” and its obligation under the Human Rights Code to avoid discrimination in making such assessments (see Correctional Services Transformation Act, 2018, SO 2018, c6, Schedule 2, ss 41(1)-(2)). While the Act has not yet come into force, the Supreme Court has recently held that a government’s express commitment enacted through legislation can serve as a “binding affirmation” of the position undertaken (see Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 at para 59). In passing this law, Ontario has recognized it must treat incarcerated people equally and without discrimination. In using a biased AI tool, Ontario has breached this duty in its perpetuation of stereotypes related to Black and Indigenous criminality and violence.

Beyond the legal problems it brings, the use of AI for security classifications must be understood in the context of the Ford Government’s policy to expand prisons while cutting social and public services. While it has declined to bring the Act into force in the past eight years, Ontario has opted instead to depreciate the standard of life in its carceral system. For instance, the Ford Government recently passed cash bail laws to incarcerate even more people in its already overcrowded prisons system, known for abusive and abysmal conditions (see, e.g., Goldblatt Partners, Canadian Civil Liberties Association, Ontario Ombudsman, and Ontario Human Rights Commission). While the cash bail laws have been put on hold as they undergo a constitutional challenge, the provincial government continues to pass laws that only worsen these conditions. It has changed the prison building code to exacerbate overcrowding through triple bunking. It has devoted billions to build more prisons, while education, healthcare and other vital social services are more imperiled than they have been in three decades.

This clarifies the Ford Government’s priorities and politics when it comes to the carceral system. It is a choice to invest billions into keeping people confined in harsher and worse conditions. It is a choice to find ways to confine more people in prisons while the education and healthcare sectors suffer, social assistance rates remain stagnant and incommensurate with the cost of living, housing remains unaffordable and reforms are made to leave tenants worse-off, and safe injection sites are closed down with no public-health-supported alternative in place. It is a choice that, while the majority of Ontarians are suffering with the cost of living, a handful of people continue to profit at all time highs, and our governing institutions point the finger instead at those who are most vulnerable, who are overrepresented in the police and prison pipeline. 

The Law Union of Ontario Prison Justice Committee firmly believes that we must reject this narrative. Prisons do not make us safer. They do not prevent recidivism (see, e.g., Rubenfeld, S. & Shanahan Somerville, M.C. (2017); Gendreau, P. Goggin, C., & Cullen, F. T. (1999); Department of Justice Canada (2020); John Howard Society; and Gendreau, P. Goggin, C., & Cullen, F.T. (1999-3)), nor do they prevent crime. They are premised on the belief that we can make society safer by putting what we don’t want or like out of sight and out of mind, but this is categorically untrue. Putting someone behind bars does not change the fact that they, too, are a human being who is part of our society and community. Nor does it change the fact that what does prevent crime is to transform the social and material conditions that we all share through increasing community support; poverty eradication; healthcare; safe supply; mental health support; affordable housing; basic income; workers’ rights; social programs. To prevent violence, we must reject and dismantle colonial, capitalist, and patriarchal patterns of behaviour that emphasize domination over mutual care and respect. 

The Law Union of Ontario Prison Justice Committee echoes the historic calls of abolitionist, prison and transformative justice organizations to move away from investing in prisons and policing as a solution, and instead empower communities, workers and people, and fund our social and public services so that the basic needs and dignity of everyone can be fulfilled.