Ewert v. Canada

Ewert v. Canada
Collection
Supreme Court Judgments
Date
2018-06-13
Neutral citation
2018 SCC 30
Report
[2018] 2 SCR 165
Case number
37233
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
Federal Court of Appeal
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165
Appeal Heard: October 12, 2017 Judgment Rendered: June 13, 2018 Docket: 37233
Between:
Jeffrey G. Ewert
Appellant
and
Her Majesty The Queen in Right of Canada (the Commissioner of the Correctional Service of Canada, the Warden of Kent Institution and the Warden of Mission Institution)
Respondent
- and -
Native Women’s Association of Canada, Canadian Association of Elizabeth Fry Societies, Mental Health Legal Committee, West Coast Prison Justice Society, Prisoners’ Legal Services, Canadian Human Rights Commission, Aboriginal Legal Services, Criminal Lawyers’ Association (Ontario), British Columbia Civil Liberties Association and Union of British Columbia Indian Chiefs
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Reasons for Judgment: (paras. 1 to 90)
Wagner J. (McLachlin C.J. and Abella, Moldaver, Karakatsanis, Gascon and Brown JJ. concurring)
Reasons Dissenting in Part: (paras. 91 to 129)
Rowe J. (Côté J. concurring)
Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165
Jeffrey G. Ewert Appellant
v.
Her Majesty The Queen in Right of Canada (the Commissioner
of the Correctional Service of Canada, the Warden of Kent
Institution and the Warden of Mission Institution) Respondent
and
Native Women’s Association of Canada,
Canadian Association of Elizabeth Fry Societies,
Mental Health Legal Committee,
West Coast Prison Justice Society,
Prisoners’ Legal Services,
Canadian Human Rights Commission,
Aboriginal Legal Services,
Criminal Lawyers’ Association (Ontario),
British Columbia Civil Liberties Association and
Union of British Columbia Indian Chiefs Interveners
Indexed as: Ewert v. Canada
2018 SCC 30
File No.: 37233.
2017: October 12; 2018: June 13.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the federal court of appeal
Prisons — Inmates — Indigenous offenders — Accuracy of information about offenders — Federal correctional authorities relying on psychological and actuarial assessment tools to make decisions regarding inmates in their custody — Métis inmate challenging reliance on these tools on ground that their validity when applied to Indigenous offenders has not been established through empirical research — Whether correctional authorities breached their statutory obligation to ensure that information about offenders is accurate by using these tools in respect of Indigenous offenders — If so, whether it is appropriate to issue declaration that obligation was breached — Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 24(1) .
Constitutional law — Charter of Rights — Principles of fundamental justice — Right to equality — Whether use of psychological and actuarial assessment tools to make decisions about Indigenous offender breached his rights to liberty, security of the person and equality — Canadian Charter of Rights and Freedoms, ss. 7 , 15 .
E, who identifies as Métis, is currently serving two concurrent life sentences. He has spent over 30 years in federal custody, in medium and maximum security settings. E challenged the use of five psychological and actuarial risk assessment tools used by the Correctional Service of Canada (“CSC”) to assess an offender’s psychopathy and risk of recidivism, on the basis that they were developed and tested on predominantly non‑Indigenous populations and that no research confirmed that they were valid when applied to Indigenous persons. He claimed, therefore, that reliance on these tools in respect of Indigenous offenders breached s. 24(1) of the Corrections and Conditional Release Act (“CCRA ”), which requires the CSC to “take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible”, as well as ss. 7 and 15 of the Charter . The trial judge agreed that, by relying on these tools despite long‑standing concerns about their application to Indigenous offenders, the CSC breached its obligation under s. 24(1) of the CCRA and infringed E’s rights under s. 7 of the Charter . The Federal Court of Appeal overturned both of these findings.
Held (Côté and Rowe JJ. dissenting in part): The appeal should be allowed in part. The CSC breached its obligation set out in s. 24(1) of the CCRA .
Per McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Brown JJ.: In continuing to rely on the impugned tools without ensuring that they are valid when applied to Indigenous offenders, the CSC breached its obligation under s. 24(1) of the CCRA to take all reasonable steps to ensure that any information about an offender that it uses is as accurate as possible. However, the CSC’s reliance on the results generated by the impugned tools does not constitute an infringement of E’s rights under s. 7 or s. 15 of the Charter .
The inquiry into whether the CSC met its obligation under s. 24(1) of the CCRA gives rise to two main questions. The first is whether results generated by the impugned tools are a type of information to which s. 24(1) applies. Reading the words of s. 24(1) in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and objects of the CCRA , the obligation in s. 24(1) applies to results generated by the impugned tools. In the ordinary sense of the words in s. 24(1) , the knowledge derived from the impugned tools by the CSC is information about an offender.
This interpretation is supported by the relevant statutory context. Sections 23 through 27 of the CCRA deal with different aspects of the CSC’s collection, use and dissemination of different types of information. When they are read together, it is clear that where Parliament intended a particular provision to apply to only certain types of information, it enumerated them or otherwise qualified the scope of the information. This reinforces the conclusion that the obligation in s. 24(1) , which applies to any information, was intended to have broad application. The context of these other provisions also confirms that the broad scope of s. 24(1) is not limited by the narrower scope of s. 24(2) . Furthermore, the legislative scheme within which the CSC operates and the CSC’s practice based on the scheme contemplate that the CSC will use the results generated by the tools in making important decisions about offenders, and CSC policy requires its use in certain circumstances. This favours applying the obligation in s. 24(1) to this information.
In addition, the statutory purpose of the correctional system supports this interpretation. Accurate information about an offender’s psychological needs and the risk he or she poses is crucial to achieving the system’s purpose of contributing to the maintenance of a just, peaceful and safe society by carrying out sentences through safe and humane custody of inmates and assisting in their rehabilitation and reintegration into the community. Interpreting s. 24(1) as applying to a broad range of information is also consistent with the paramount consideration for the CSC: the protection of society may be undermined if inaccurate tests are applied and risk is underestimated. The nature of the information derived from the impugned tools provides further support for this interpretation: these tools are considered useful because the information from them can be scientifically validated; therefore, it should be accurate. As a result, the CSC’s statutory obligation at s. 24(1) applies to results generated by the impugned assessment tools.
The second question to be addressed is whether the CSC breached its obligation, and more specifically, whether it failed to take all reasonable steps to ensure that the impugned tools produce accurate information when applied to Indigenous persons. Section 24(1) requires that the CSC take all reasonable steps to ensure the accuracy of information about an offender that it uses, not all possible steps. What constitutes all reasonable steps will vary with the context. In this case, the trial judge’s conclusion that the CSC failed to take the reasonable steps required is amply supported by the record. The CSC had long been aware of concerns regarding the possibility of these tools exhibiting cultural bias yet took no action to confirm their validity and continued to use them in respect of Indigenous offenders, despite the fact that research would have been feasible. In doing so, the CSC did not meet the legislated standard set out in s. 24(1). This conclusion is supported by the interpretation and application of the guiding principle set out in s. 4 (g) of the CCRA . This principle requires that correctional policies, programs and practices must respect gender, ethnic, cultural and linguistic differences and must be responsive to the special needs of equity‑seeking groups, and in particular Indigenous persons. Section 4 (g) represents an acknowledgement of the systemic discrimination faced by Indigenous persons in the Canadian correctional system. It is evident from the grammatical and ordinary sense of the words of s. 4 (g) and the legislative history of the CCRA that s. 4 (g) should be understood as a direction from Parliament to the CSC to advance substantive equality in correctional outcomes for Indigenous offenders. It is critical that the CSC give this direction meaningful effect. In the context of the present case, this means, at a minimum, addressing the long‑standing, and credible, concern that continuing to use the impugned tools in evaluating Indigenous inmates perpetuates discrimination and disparity in correctional outcomes between Indigenous and non‑Indigenous offenders. The CSC must ensure that its policies and programs are appropriate for Indigenous offenders and responsive to their needs and circumstances. For the correctional system to operate fairly and effectively, the assumption that all offenders can be treated fairly by being treated the same way must be abandoned. The CSC’s inaction with respect to the concerns raised about the impugned tools fell short of what s. 24(1) required it to do.
In the circumstances of this case, it is appropriate to issue a declaration that the CSC has failed to meet its obligation under s. 24(1) of the CCRA . A court may, in its discretion, grant a declaration where it has jurisdiction to hear the issue, where the dispute is real and not theoretical, where the party raising the issue has a genuine interest in its resolution, and where the respondent has an interest in opposing the declaration sought. These criteria are met. Although a declaration is an exceptional and discretionary remedy which should normally be declined where there exists an adequate alternative statutory mechanism to resolve the dispute or to protect the rights in question, the statutory grievance mechanism that may be available to E has not been effective and he should not be required to begin the grievance process anew.
E has not established an infringement of his rights under s. 7 of the Charter . To establish that the CSC’s reliance on the impugned tools violated the principle of fundamental justice against arbitrariness or that against overbreadth, E had to show on a balance of probabilities that the CSC’s practice of using the impugned tools with respect to Indigenous offenders had no rational connection to the government objective. He has not done so: there was no evidence before the trial judge that how the impugned tools operate in the case of Indigenous offenders is likely to be so different from how they operate in the case of non‑Indigenous offenders that their use in respect of the former is completely unrelated to the government objective. E also failed to meet his onus of establishing that a new principle of fundamental justice — that the state must obey the law — should be found to exist. Similarly, E has not established the infringement of his rights under s. 15 of the Charter that he alleged. The trial judge could not have found, on the evidence before him, that the impugned tools overestimate the risk posed by Indigenous inmates or lead to harsher conditions of incarceration or to the denial of rehabilitative opportunities because of such an overestimation. His conclusion should not be disturbed.
Per Côté and Rowe JJ. (dissenting in part): There is agreement with the majority with respect to E’s ss. 7 and 15 Charter claims. However, there is disagreement that s. 24(1) of the CCRA imposes an obligation on the CSC to conduct research as to the validity of the impugned tools. Although it is important to address Indigenous overrepresentation in prison, and there is concern with the CSC’s inaction with respect to the issue raised by E, it was not Parliament’s intent to hold the CSC to account on this issue pursuant to s. 24(1) . The scope of the obligation in s. 24(1) , as applied to the impugned tools, simply requires that the CSC maintain accurate records of the inmates’ test scores. Interpreted in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and the object of the CCRA and the intention of Parliament, the words of s. 24(1) refer to biographical or factual information about an offender, such as age, criminal record, behaviour in prison, or courses taken with a view to rehabilitation, that should be accurate, up to date, and complete. The scheme that is set out in ss. 23 and 24 is straightforward: s. 23 lists information that is to be recorded, s. 24(1) requires the CSC to record this information accurately and to keep it up to date, and s. 24(2) provides a means for an inmate to correct errors or deficiencies. The CCRA’s goals of managing the custody of offenders, assisting in their rehabilitation and reintegration, and protecting society require good decision‑making based on accurate information. Section 24 relates to the accuracy of information, thus it serves an important function. However, that function does not include verifying the validity of the impugned tools. Rather, the scheme reflects Parliament’s intent to provide offenders with a specific remedy to make sure that the CSC’s duty to maintain accurate records is met. The word “information” in ss. 24(1) and 24(2) , consecutive subsections of the same provision, should be given the same meaning. These provisions are about accurate record‑keeping, not about challenging the means that the CSC uses to make its decisions. When an offender’s complaint is about the way that a particular decision is made, the CCRA provides a means for offenders to file a grievance and if necessary, pursue judicial review.
There is also disagreement with the majority as to the remedy. A declaration should not be granted, even in the exceptional circumstances of this case. The proper remedy for breach of statutory duty by a public authority is judicial review for invalidity. Allowing inmates to apply for a declaration would effectively bypass the ordinary process of judicial review and thus fail to accord the deference typically shown to administrative decision makers. This could open the door to undue interference with the discharge of administrative functions in respect of matters delegated to administrative bodies. It is unwise to depart from settled legal principles, even on the facts of this case. The appeal should be dismissed.
Cases Cited
By Wagner J.
Referred to: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41; Ewert v. Canada (Attorney General), 2008 FCA 285, 382 N.R. 370; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; R. v. Malmo‑Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Solosky v. The Queen, [1980] 1 S.C.R. 821; Ewert v. Canada (Attorney General), 2007 FC 13, 306 F.T.R. 234.
By Rowe J. (dissenting in part)
R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; Ewert v. Canada (Attorney General), 2007 FC 13, 306 F.T.R. 234, aff’d 2008 FCA 285, 382 N.R. 370; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Zeolkowski, [1989] 1 S.C.R. 1378; Kim v. Canada, 2017 FC 848; Tehrankari v. Canada (Correctional Service) (2000), 38 C.R. (5th) 43; Charalambous v. Canada (Attorney General), 2015 FC 1045, aff’d 2016 FCA 177, 483 N.R. 398; Tehrankari v. Canada (Attorney General), 2012 FC 332; Greater Vancouver (Regional District) v. British Columbia, 2011 BCCA 345, 339 D.L.R. (4th) 251; Holland v. Saskatchewan, 2008 SCC 42, [2008] 2 S.C.R. 551; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 15 .
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 3 , 3.1 , 4 , 15.1 , 23 to 27 , 23 , 24 , 25(1) , 26 , 27 , 28 , 28 to 31 , 30 , 80 to 84 , 90 .
Corrections and Conditional Release Regulations, SOR/92‑620, ss. 13, 17, 18, 74 to 82.
Criminal Code, R.S.C. 1985, c. C‑46, s. 718.2 (e).
Federal Courts Act, R.S.C. 1985, c. F‑7, s. 17 .
Federal Courts Rules, SOR/98-106, r. 64.
Interpretation Act, R.S.C. 1985, c. I‑21, s. 12 .
Authors Cited
Brown, Donald J. M., and John M. Evans, with the assistance of David Fairlie. Judicial Review of Administrative Action in Canada. Toronto: Thomson Reuters, 2013 (loose‑leaf updated April 2018, release 1).
Canada. Commission of Inquiry into Certain Events at the Prison for Women in Kingston. Ottawa: Public Works and Government Services Canada, 1996.
Canada. Department of Justice and Solicitor General. Directions for Reform: A Framework for Sentencing, Corrections and Conditional Release. Ottawa: Supply and Services Canada, 1990.
Canada. House of Commons. House of Commons Debates, vol. IV, 3rd Sess., 34th Parl., November 4, 1991, pp. 4430‑31.
Canada. Office of the Auditor General. 2016 Fall Reports of the Auditor General of Canada: Report 3 — Preparing Indigenous Offenders for Release — Correctional Service Canada. Ottawa, 2016.
Canada. Office of the Correctional Investigator. Annual Report 2015‑2016. Ottawa, 2016.
Canada. Office of the Correctional Investigator. Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act — Final Report. Ottawa, 2012.
Canada. Royal Commission on Aboriginal Peoples. Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada. Ottawa, 1996.
Canada. Solicitor General. Towards a Just, Peaceful and Safe Society: The Corrections and Conditional Release Act Five Years Later — Consolidated Report. Ottawa: Public Works and Government Services of Canada, 1998.
Hogg, Peter W., Patrick J. Monahan and Wade K. Wright. Liability of the Crown, 4th ed. Toronto: Carswell, 2011.
Manitoba. Public Inquiry into the Administration of Justice and Aboriginal People. Report of the Aboriginal Justice Inquiry of Manitoba, vol. 1, The Justice System and Aboriginal People. Winnipeg, 1991.
Sarna, Lazar. The Law of Declaratory Judgments, 4th ed. Toronto: Thomson Reuters, 2016.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.
APPEAL from a judgment of the Federal Court of Appeal (Nadon, Dawson and Webb JJ.A.), 2016 FCA 203, 487 N.R. 107, 363 C.R.R. (2d) 120, [2016] F.C.J. No. 853 (QL), 2016 CarswellNat 3417 (WL Can.), setting aside a decision of Phelan J., 2015 FC 1093, 343 C.R.R. (2d) 15, [2016] 1 C.N.L.R. 50, [2015] F.C.J. No. 1123 (QL), 2015 CarswellNat 4551 (WL Can.). Appeal allowed in part, Côté and Rowe JJ. dissenting in part.
Jason B. Gratl and Eric Purtzki, for the appellant.
Anne Turley and Banafsheh Sokhansanj, for the respondent.
Pam MacEachern and Virginia Lomax, for the interveners the Native Women’s Association of Canada and the Canadian Association of Elizabeth Fry Societies.
Mercedes Perez and Karen A. Steward, for the intervener the Mental Health Legal Committee.
Avnish Nanda, for the interveners the West Coast Prison Justice Society and the Prisoners’ Legal Services.
Fiona Keith and Sasha Hart, for the intervener the Canadian Human Rights Commission.
Emily Hill and Jessica Wolfe, for the intervener the Aboriginal Legal Services.
Anita Szigeti, Jill R. Presser, Andrew Menchynski and Breana Vandebeek, for the intervener the Criminal Lawyers’ Association (Ontario).
Paul Champ and Christine Johnson, for the interveners the British Columbia Civil Liberties Association and the Union of British Columbia Indian Chiefs.
The judgment of McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Brown JJ. was delivered by
Wagner J. —
I. Overview
[1] A person who is convicted of a criminal offence and sentenced to imprisonment for two years or longer becomes an inmate of Canada’s federal correctional system. Parliament has directed in s. 3 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA ”), that the purpose of the correctional system is to contribute to the maintenance of a just, peaceful and safe society. This purpose is to be achieved by two means: first, by carrying out sentences through the safe and humane custody of offenders and, second, by assisting in their rehabilitation and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and the community. The Correctional Service of Canada (“CSC”) is the entity charged with ensuring that the purpose of the correctional system is achieved.
[2] In order to fulfill its mandate, the CSC must make numerous decisions about each inmate in its custody. For example, it is required to assign a security classification of maximum, medium or minimum to each inmate, taking into account the risk to public safety posed by the inmate, the inmate’s likelihood of escape, and the inmate’s institutional supervision needs: see CCRA, s. 30 ; Corrections and Conditional Release Regulations, SOR/92-620, s. 18. The CSC must decide in which penitentiary to house each inmate, taking into account factors such as the safety of the inmate, other inmates and the public, and the availability of rehabilitative programs and services: see CCRA, s. 28 . It develops a correctional plan for each inmate in order to ensure that inmates receive the most effective programs to rehabilitate them and prepare them for reintegration into the community on their release: see CCRA, s. 15.1 . The CSC also decides whether to recommend to the Parole Board of Canada that an inmate be released on parole.
[3] If the CSC is to effectively assist in the rehabilitation of inmates while ensuring the safety of other inmates and staff members and the protection of society as a whole, it must base its decisions about inmates in its custody on sound information. This is explicitly recognized in s. 24(1) of the CCRA , which requires the CSC to “take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible”.
[4] This appeal concerns a challenge by the appellant, Jeffrey G. Ewert, to the CSC’s use of one particular type of information. Mr. Ewert, who is Métis, challenges the CSC’s reliance on certain psychological and actuarial risk assessment tools on the ground that the validity of the tools when applied to Indigenous offenders has not been established through empirical research.
[5] A judge of the Federal Court concluded that, by relying on these tools despite long-standing concerns about their application to Indigenous offenders, the CSC had breached its obligation under s. 24(1) of the CCRA and had unjustifiably infringed Mr. Ewert’s rights under s. 7 of the Canadian Charter of Rights and Freedoms . The Federal Court of Appeal overturned both of these findings.
[6] I agree with the Federal Court of Appeal that Mr. Ewert has not established a violation of his Charter rights. However, I conclude that the trial judge was correct to find that the CSC had, in continuing to rely on the impugned tools without ensuring that they are valid when applied to Indigenous offenders, breached its obligation under s. 24(1) of the CCRA . As I will explain, my conclusion in this respect is informed in part by the guiding principle in s. 4 (g) of the CCRA , which provides that correctional policies, programs and practices must respect cultural differences and be responsive to the special needs of Indigenous peoples.
[7] For the reasons that follow, I would allow Mr. Ewert’s appeal in part, and declare that the CSC did in fact breach the obligation in s. 24(1) of the CCRA . Although a declaration is an exceptional remedy, it is one that is available in the circumstances of this case and one that this Court should exercise its discretion to grant.
II. Background
[8] Mr. Ewert is 56 years old. He identifies as Métis.
[9] Mr. Ewert was convicted of murder and attempted murder for strangling and sexually assaulting two women in two separate incidents in 1984. Mr. Ewert is currently serving two concurrent life sentences for these offences. He has spent over 30 years in federal custody and has been held in medium and maximum security settings during that time.
[10] Mr. Ewert has been eligible to apply for day parole since 1996 and for full parole since 1999. He has waived his right to each parole hearing for which he has been eligible.
[11] At trial, Mr. Ewert challenged the CSC’s use of five psychological and actuarial risk assessment tools. One of these is the Hare Psychopathy Checklist-Revised (“PCL-R”), a tool that was designed to assess the presence of psychopathy but is also used to assess the risk of recidivism. Mr. Ewert also challenged the use of the Violence Risk Appraisal Guide (“VRAG”) and the Sex Offender Risk Appraisal Guide (“SORAG”), two actuarial tools designed to assess the risk of violent recidivism; the Static-99, an actuarial tool designed to estimate the probability of sexual and violent recidivism; and the Violence Risk Scale – Sex Offender (“VRS-SO”), a rating scale designed to assess the risk of sexual recidivism that is used in connection with the delivery of sex offender treatment.
[12] Mr. Ewert claimed that while he has been incarcerated, the CSC has relied on these tools in conducting needs and risk assessments on him. He further claimed that these tools had been developed and tested on predominantly non-Indigenous populations and that there was no research confirming that they were valid when applied to Indigenous persons. Mr. Ewert submitted that, therefore, the CSC’s reliance on the impugned tools in respect of Indigenous offenders represented a failure by the CSC to take all reasonable steps to ensure the accuracy of information about offenders that it uses, as required by s. 24(1) of the CCRA . He also argued that the CSC’s reliance on the tools was contrary to the guiding principle now set out in s. 4 (g) of the CCRA that correctional policies and practices must respect ethnic and cultural differences and be responsive to the special needs of Indigenous persons. Further, Mr. Ewert argued that the CSC’s reliance on tools that had not been shown to be valid when applied to Indigenous offenders infringed his rights under ss. 7 and 15 of the Charter . He sought declaratory relief and an injunction preventing the CSC from using the impugned tools in respect of him or disseminating any results generated by the tools in his case.
III. Judgments Below
A. Federal Court (Phelan J.), 2015 FC 1093, 343 C.R.R. (2d) 15
[13] At trial, Mr. Ewert relied in support of his claims on the expert evidence of Dr. Stephen Hart, a professor of psychology at Simon Fraser University. Dr. Hart was qualified to give opinion evidence in the area of the development, application and validity of actuarial and psychological instruments used by the CSC. The trial judge generally accepted Dr. Hart’s evidence. In particular, he accepted and relied on Dr. Hart’s evidence that tests like the impugned tools are susceptible to “cross-cultural bias” or “variance”. Dr. Hart testified that cross-cultural variance occurs when the reliability or validity of an assessment tool varies depending on the cultural background of the individual to whom the tool is applied. He further testified that membership in a cultural group is assessed through self-identification and that acculturation is a matter of degree. Generally speaking, however, because of the significant cultural differences between Indigenous and non-Indigenous Canadians, the impugned tools — which were developed for and validated by studies on predominantly non-Indigenous populations — are more likely than not to be cross-culturally variant to some degree when applied to Indigenous individuals. Dr. Hart testified that notwithstanding his opinion that the tools were likely to be affected by cultural bias, he could not express an opinion on the impact of that bias: it could be subtle and tolerable or it could be profound and intolerable.
[14] The trial judge also accepted Dr. Hart’s evidence that although there are a number of types of analyses that can be employed to establish that an actuarial test is free of cross-cultural variance, none of them have been completed for the impugned tools. One academic study published in 2013 suggests that the PCL-R does validly predict the recidivism risk posed by Indigenous offenders, but Dr. Hart discounted it because, for one thing, it is based on a small sample size. Dr. Hart’s evidence led the trial judge to find that the scores generated by the impugned tools when applied to Indigenous individuals ought not to be relied upon “in and of themselves”: para. 56.
[15] The respondent, to whom I will refer as the “Crown” in these reasons, presented the conflicting expert evidence of Dr. Marnie Rice, a clinical psychologist, researcher and professor of psychology and psychiatry. Dr. Rice testified that the impugned tools are valid and are not affected by cultural bias with respect to Indigenous offenders. The trial judge found Dr. Rice’s evidence to be of little assistance and concluded that it could not be relied upon, except where it was consistent with that of Dr. Hart.
[16] The trial judge accepted that the CSC had relied on results generated by certain of the impugned tools in making decisions that affected key aspects of Mr. Ewert’s incarceration. Specifically, he found that results generated by these tools were one factor CSC decision-makers had considered in deciding whether to recommend that Mr. Ewert be granted parole, in determining his security classification, and in denying requests for escorted temporary absences. The trial judge also found that it was common practice in the CSC to use the impugned tools to assess an inmate’s psychopathy or risk of violence, and that the scores derived from these assessments were required to be taken into account in determining an inmate’s overall security rating.
[17] Citing the evidence of the Crown’s fact witness, a former head of research at the CSC, the trial judge found that the CSC had been aware of concerns about the validity of the application of the impugned tools to Indigenous offenders since 2000, but that it had conducted no research to verify the validity of their application in that context.
[18] These findings led the trial judge to conclude that, by continuing to rely on the impugned tools without confirming ― even though it had long had concerns in this respect ― that they are valid when applied to Indigenous persons, the CSC had failed to “take all reasonable steps to ensure that any information about an offender that it uses is as accurate . . . as possible” as is required by s. 24(1) of the CCRA .
[19] The trial judge also concluded that the CSC had, by relying on the impugned tools, infringed Mr. Ewert’s rights under s. 7 of the Charter . The trial judge was satisfied that Mr. Ewert’s s. 7 liberty interest had been adversely affected by decisions related to his security classification, his suitability for parole and his requests for temporary absences, and that his security of the person interest under that section was engaged by the impact on him of being labelled a psychopath. The trial judge concluded that these deprivations of liberty and security of the person were contrary to the principles of fundamental justice. The CSC’s application of the impugned tools to Indigenous inmates was arbitrary and overbroad given the purpose and objective being pursued by the CSC in making decisions, which the trial judge characterized as being to predict an offender’s risk of reoffending as accurately as possible in the interests of public safety. These infringements could not be justified under s. 1 of the Charter .
[20] Mr. Ewert argued, in the alternative, that the CSC’s use of the impugned tools was contrary to a proposed new principle of fundamental justice, namely that the state must obey the law. The trial judge concluded that it was unnecessary to address this argument. The trial judge also held that the factual record was not sufficiently developed to support Mr. Ewert’s argument that his rights under s. 15 of the Charter had been infringed.
[21] Having concluded that the CSC had breached a statutory duty owed to Mr. Ewert and had violated his rights under s. 7 of the Charter , the trial judge ordered an interim injunction that prohibited the CSC from using results generated by the impugned tools with respect to Mr. Ewert. The trial judge also indicated his intention to issue a final order enjoining the use of these tools in respect of Mr. Ewert and other Indigenous inmates until, at a minimum, the CSC had conducted a study that confirmed the reliability of the tools for use in respect of Indigenous offenders. The details of the final order were to be addressed at a remedies hearing.
B. Federal Court of Appeal (Dawson J.A., Nadon and Webb JJ.A. Concurring), 2016 FCA 203, 487 N.R. 107
[22] The Federal Court of Appeal allowed the Crown’s appeal from the trial judge’s interim order.
[23] The Federal Court of Appeal concluded that the trial judge had applied an incorrect legal test in deciding whether Mr. Ewert had established a breach of s. 24(1) of the CCRA . The Court of Appeal stated that, to find that s. 24(1) had been breached, the trial judge had to be satisfied on a balance of probabilities that the assessment tools produce or are likely to produce false results and conclusions when applied to Indigenous persons. Because there was no evidence showing that to be the case, Mr. Ewert had not established that the CSC had failed to take all reasonable steps to ensure that the information it used about Indigenous inmates was as accurate as possible.
[24] The Court of Appeal also held that to establish a violation of s. 7 of the Charter , Mr. Ewert had to establish on a balance of probabilities that the impugned tools produce inaccurate results when applied to Indigenous inmates. The trial judge had erred in failing to require Mr. Ewert to meet this standard, as he had instead relied on the absence of evidence proving the accuracy and reliability of the assessment tools when applied to Indigenous offenders to find that Mr. Ewert had established a s. 7 violation.
[25] Finally, the Court of Appeal rejected Mr. Ewert’s argument that it should find that his rights under s. 15 of the Charter had been infringed.
IV. Issues
[26] Mr. Ewert’s appeal to this Court raises the following issues:
A. Did the CSC breach its obligation under s. 24(1) of the CCRA by failing to take all reasonable steps to ensure the accuracy of the results generated by the impugned tools when applied to Indigenous offenders?
B. Did the CSC’s reliance on results generated by the impugned tools constitute an unjustified infringement of Mr. Ewert’s rights under s. 7 of the Charter ?
C. Did the CSC’s reliance on results generated by the impugned tools constitute an unjustified infringement of Mr. Ewert’s rights under s. 15 of the Charter ?
V. Analysis
[27] In this Court, Mr. Ewert’s argument that the CSC breached its obligation under the CCRA has been made primarily in support of the further argument that this constituted an infringement of his rights under the Charter . Mr. Ewert argues that this Court should recognize a new principle of fundamental justice, namely that the state must obey the law, and he further argues that he was deprived of liberty and security of the person contrary to that principle, because the CSC was in breach of its obligation under s. 24(1) of the CCRA . Mr. Ewert has failed to establish his Charter claims. I nonetheless agree with the trial judge that Mr. Ewert has established that the CSC breached its obligation under s. 24(1) of the CCRA . In the exceptional circumstances of this case, it is appropriate for this Court to exercise its discretion to grant a declaration to this effect. I will set out my reasons for reaching this conclusion after explaining the basis for my finding that the CSC was in breach of the obligation in s. 24(1) of the CCRA and for my conclusion that Mr. Ewert’s Charter claims should be dismissed.
A. Did the CSC Breach Its Obligation Under Section 24(1) of the CCRA?
[28] In order to determine whether the CSC breached its obligation under s. 24(1) of the CCRA , the scope of that obligation must first be defined. Then, the CSC’s conduct must be examined in order to determine whether the CSC met the legislated standard.
[29] To interpret the scope of the obligation provided for in s. 24(1) , I will apply the modern approach to statutory interpretation: “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). Because the CCRA is federal legislation, the interpretation exercise must also be guided by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21 , which reads as follows:
12 Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
[30] In the instant case, the inquiry into whether the CSC has met the obligation set out in s. 24(1) gives rise to two main questions. The first is whether results generated by the impugned tools are a type of information to which s. 24(1) applies. If the answer is yes, the second question is whether the CSC took sufficient steps to ensure the accuracy of that information. I will discuss each of these questions in turn.
(1) Does the Obligation Provided for in Section 24(1) of the CCRA Apply to Results Generated by the Impugned Tools?
[31] The first issue to address is whether the obligation provided for in s. 24(1) of the CCRA applies to results generated by the impugned tools. Mr. Ewert argues that it does, while the Crown argues that it does not. The Crown submits that s. 24(1) requires only that information be properly gathered and recorded, and that the o