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Prison administration - Rights of prisoners

Thursday, August 25, 2016 @ 8:00 PM  


Appeal by the Correctional Service of Canada from interim injunctive relief granted in favour of the respondent, Ewert. The respondent was an Aboriginal federal inmate serving two life sentences. He alleged that the psychological tools used by the appellant to assess psychopathy and the risk of re-offending were unreliable when administered to Aboriginal inmates. The respondent alleged that the use of the assessment tools was contrary to ss. 7 and 15 of the Charter and sought injunctive and declaratory relief. A Federal Court judge accepted expert evidence that the assessment tools had not been vetted for cross-cultural bias, and were cross-culturally variant in a profound and unreliable manner. The judge concluded that the use of the assessment tools in respect of Aboriginal inmates was contrary to ss. 4(g) and 24(1) of the Corrections and Conditional Release Act (Act) and gave rise to an unjustifiable breach of s. 7 of the Charter due to their impact on institutional liberty decisions. The judge issued an interim order enjoining the appellant from using results obtained from the use of the assessment tools in respect of the respondent, and requested written briefs in respect of a study confirming the reliability of assessment tools for adult Aboriginal offenders. The Crown appealed.

HELD: Appeal allowed. The Federal Court judge erred in law in finding both a breach of the Act and a violation of s. 7 of the Charter. In considering whether the assessment tools were contrary to the Act, the judge found that the respondent was not required to definitively establish that the assessment tools were biased, as a mere challenge to the reliability of the results generated by the tools was sufficient. The standard imposed was contrary to law, as the respondent was required to establish each constituent element of his cause of action on a balance of probabilities. Based on the expert evidence adduced by the respondent suggesting the cultural bias was subtle, the burden of demonstrating that the assessment tools generated false results when administered to Aboriginal persons was not met. The failure of the expert evidence to establish on a balance of probabilities that the assessment tools generated results that were inaccurate or unreliable in a material way was also dispositive of the s. 7 Charter claim. The judge properly found the evidentiary record insufficient to conduct a s. 15 analysis. As a matter of law, the judge was unable to grant an interim remedy, as the evidentiary record was not unequivocal. The judgment below was set aside and the respondent’s action was dismissed.