In a March 11 Federal Court of Appeal decision in Michel v. Canada (Attorney General) 2025 FCA 58, a panel made up of Justices Mary J.L. Gleason, K.A. Siobhan Monaghan and Gerald Heckman upheld the Federal Court’s January 2023 decision in Kahnapace v. Canada (Attorney General) 2023 FC 32, finding it made no palpable and overriding error in dismissing the plaintiffs’ motion to certify a class action that targets the CSC for over-classifying the risk profile of Indigenous women inmates.
But the court allowed the appeal in part — granting lead plaintiff Aileen Michel leave to file an amended statement of claim alleging systemic s. 15 discrimination by CSC's use of the Custody Rating Scale (CRS) and related tools. Based on the amended claim, she was invited to re-apply once for certification based on the existing record, with proposed common issues flowing from the amended claim.
Section 15 of the Canadian Charter of Rights and Freedoms guarantees the right to equal protection and equal benefit of the law without discrimination, particularly based on race, national or ethnic origin, color, religion, sex, age, or mental or physical disability.
To prove a violation of s. 15 equality rights, a claimant must demonstrate, through a two-part test, that a law or policy creates a distinction based on a protected ground and that this distinction results in discrimination.
According to facts detailed in the decision, the CRS has been used by the CSC since 1991 to classify each offender’s level of public and institutional risk, and to help determine their security classification and the level of the institution where they will be incarcerated.
Lead counsel for Michel, Vancouver lawyer Jason Gratl, argued among other things that Indigenous people tend to score poorly on the CRS because of their history of colonization. The respondent, the Attorney General of Canada, did not dispute evidence before the court that female Indigenous inmates, collectively, are classified as higher security risks than non-Indigenous female inmates.
But the plaintiff’s s. 15 claim was “brief in the extreme and contains little more than conclusory statements alleging that CSC’s use of the CRS and the impugned tools breaches section 15 of the Charter,” wrote Justice Gleason for the panel.
The court of appeal noted that partial discrimination against a protected group can violate section 15, without every group member being identically impacted. For that reason, it concluded, the systemic discrimination claim based on the alleged overclassification effect of the CRS on Indigenous female inmates as a group could raise common issues, regardless of individual classification outcomes.
As a result, it ruled, the Federal Court erred in refusing to grant leave to amend to attempt to properly plead the section 15 claim and common issues.
“As a matter of principle and as a general rule,” wrote Justice Gleason, “if there is a justiciable claim that can be advanced by a party, they should be granted leave to amend their pleadings to make such a claim … unless they have already been granted so many chances to amend that the court concludes they are unable to plead the required material facts.”
She added that it was “likely premature” for the Federal Court to have assessed whether the plaintiffs raised common questions in respect of their section 15 claims in the absence of an amended statement of claim.
“It seems to me that these assertions are not so clearly without merit that the plaintiffs should have been forestalled from being granted leave to amend their Statement of Claim to seek to make them,” wrote Justice Gleason.
“To establish a breach of section 15 of the Charter,” she added, “it is not necessary that all members of a protected group be negatively impacted by the impugned law or government practice or be affected by them in the same way at step one of the section 15 test.”
In an email to Law360 Canada, Gratl said the decision breathes new life into the effort by Indigenous female inmates in CSC prisons to seek justice for years of discrimination.
“The decision … reinvigorates the primary purpose of this proposed class action, which is to require the Correctional Service of Canada to revise their security classification system to stop overestimating the risk Indigenous women pose to staff and other inmates,” he explained.
“Opportunities for employment, rehabilitation and parole generally rely on the fairness of the security classification system,” he added.
Gratl, the founder of Vancouver boutique litigation firm Gratl & Company, estimated the size of the class to be about 1,000 members.
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