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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Aboriginal rights - Remedies for denial of rights

Wednesday, June 13, 2018 @ 1:48 PM  


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Ewert appealed from a judgment of the Federal Court of Appeal setting aside a decision finding Correctional Service of Canada (CSC) had breached its obligation under s. 24(1) of the Corrections and Conditional Release Act (CCRA) and had infringed Ewert’s rights under s. 7 of the Charter. Ewert, who is a Métis inmate, challenged the CSC’s reliance on certain psychological and actuarial risk assessment tools. He claimed the validity of the tools, when applied to Indigenous offenders, had not been established through empirical research. The reliance on those tools, he further argued, infringed his rights under ss. 7 and 15 of the Charter and the CSC did not take all reasonable steps to ensure the accuracy of information about offenders as required by s. 24(1) of the CCRA. The trial judge concluded that the CSC had infringed Ewert’s rights under s. 7 of the Charter and did not meet the requirements of s. 24(1) of the CCRA. He ordered an interim injunction that prohibited the CSC from using results generated by the impugned tools with respect to Ewert. The Federal Court of Appeal allowed the Crown’s appeal and found that Ewert did not establish on a balance of probabilities that the impugned tools produced inaccurate results when applied to Indigenous inmates. The issues raised by the appeal were whether the reliance on the tools resulted in a breach of s. 24(1) of the CCRA and the infringement of ss.7 and 15 of the Charter.

HELD: Appeal allowed in part. The statutory purpose of the correctional system supported an interpretation according to which the CSC’s obligation under s. 24(1) extended to the accuracy of psychological or actuarial test results that it used. Ewert did not have to prove that the impugned tools produced inaccurate results. The question to be addressed was whether the CSC’s actions were sufficient to fulfill the legislated standard of all reasonable steps to ensure accuracy, currency and completeness. Section 4(g) of the CCRA represented an acknowledgement of the systemic discrimination faced by Indigenous persons in the Canadian correctional system. The clear direction expressed in s. 4(g) and the underlying rationale for that direction strongly supported the conclusion that CSC’s inaction with respect to the concerns raised about the risk assessment instruments fell short of what s. 24(1) of the CCRA required it to do. The finding that there was uncertainty about the extent to which the tests were accurate when applied to Indigenous offenders was not sufficient to establish that there was no rational connection between reliance on the tests and the relevant government objective. Thus, Ewert did not establish that the CSC’s reliance on the tools violated the principle of fundamental justice under s. 7 of the Charter.  Furthermore, Ewert failed to establish infringement of his rights under s. 15 Charter on the basis that the evidentiary record was not sufficiently developed. The Court appropriately exercised its discretion and issued a declaration. Exceptional circumstances included the fact that Ewert had already used the statutory grievance mechanism under the CCRA.

Ewert v. Canada, [2018] S.C.J. No. 30, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., June 13, 2018. Digest No. TLD-June112018011SCC