Source text

Ewert v. Canada
Court (s) Database
Federal Court Decisions
Date
2023-08-01
Neutral citation
2023 FC 1054
File numbers
T-2069-19
Decision Content
Date: 20230801
Docket: T-2069-19
Citation: 2023 FC 1054
Ottawa, Ontario, August 1, 2023
PRESENT: Mr. Justice McHaffie
BETWEEN:
JEFFREY G. EWERT
Plaintiff
and
HIS MAJESTY THE KING IN RIGHT OF CANADA
Defendant
JUDGMENT AND REASONS
I. Overview [1] Like many Indigenous inmates who follow traditional teachings and healing practices, Jeffrey Ewert carries a medicine bundle. His medicine bundle began with an eagle feather that an Elder presented to him over 30 years ago. It has grown over the course of his lengthy incarceration and now includes a variety of herbal medicines, stones, and artefacts. Mr. Ewert considers it sacred and believes it is desecrated if touched by someone else. In furtherance of his spiritual beliefs, and as part of his medicine bundle, Mr. Ewert wears headbands that have significance to him based on their colour, the Elders who presented them, and the teachings he has received.
[2] In this claim against the Crown, Mr. Ewert asserts that in the summer of 2019, Correctional Services Canada (CSC) violated his rights under the Canadian Charter of Rights and Freedoms by searching his medicine bundle in his absence contrary to CSC policy, and by asking or requiring him to remove his headbands for photographs and searches. He seeks damages and declarations as remedies for those breaches of the Charter.
[3] For the reasons below, I conclude that CSC’s detention and search of Mr. Ewert’s medicine bundle in July 2019 violated his rights under sections 2(a) and 8 of the Charter in a manner not justified under section 1 of the Charter. However, I conclude that Mr. Ewert has not demonstrated that the requests and demands made regarding his headbands in July and August of 2019 breached his Charter rights. Having reviewed the various factors relevant to the award and quantum of damages under subsection 24(1) of the Charter, I conclude that an award of $7,500 is an appropriate and just award to remedy the Charter breaches I have identified.
II. Issues [4] Mr. Ewert’s original statement of claim raises a broad number of issues, including allegations regarding the reasons for his prolonged incarceration and retaliation against him for various legal proceedings he has brought against the Crown to defend his spiritual beliefs and practices. However, during the course of case management of this action, the parties agreed that only the following three issues were to be determined at trial, which I have slightly rephrased:
Did the search of Mr. Ewert’s medicine bundle conducted by CSC personnel on July 17, 2019, infringe upon any of his rights under sections 2, 7, 8, 12, and/or 15 of the Charter? Did CSC personnel harass Mr. Ewert with respect to his wearing of headbands in accordance with his traditional teachings and spiritual beliefs between the months of June and August 2019, in violation of his rights under sections 2, 7, 8, 12, and/or 15 of the Charter? If so, is Mr. Ewert entitled to damages pursuant to subsection 24(1) of the Charter?
III. Analysis A. The search of Mr. Ewert’s medicine bundle on July 17, 2019, infringed Mr. Ewert’s rights under section 2(a) of the Charter (1) Mr. Ewert’s medicine bundle [5] I begin with a discussion of the origins and nature of Mr. Ewert’s medicine bundle and his spiritual connection to it, given their importance in this litigation.
[6] Mr. Ewert describes himself as having been part of the Sixties Scoop. He was put under protection of the Children’s Aid Society at birth and was placed for adoption with a non-Indigenous family in Surrey, British Columbia. The severance of ties to his culture and community meant he had little support when facing racism in school and the community in his youth, difficulties that were compounded by his adoptive parents’ mental health and substance abuse issues. He grew up ashamed of his Indigenous heritage, lacking direction and self-respect. He turned to alcohol and drugs at a young age. In May and June 1984, at the age of 22, he committed two horrific crimes—the second-degree murder of one young woman and the attempted murder of another—of which he was later convicted: see R v Ewert, [1992] 3 SCR 161, rev’g 1991 CanLII 5763 (BC CA). Mr. Ewert has been incarcerated since July 1984.
[7] Mr. Ewert described his transfer to a federal penitentiary in British Columbia as “the first time [he] was really exposed to Indigenous culture, […] seeing the Indigenous Brothers in the institution doing what they do.” He immersed himself in Indigenous culture within the correctional system, working with the Native Brotherhood to press for recognition of Indigenous rights and practices in the prison setting. He met with Elders and began receiving their teachings regarding Indigenous spirituality. While acting as a Chief for the Native Brotherhood in 1990, Mr. Ewert conducted a fast as part of the blessing of a new sweat lodge. The Elder who led him to that fast presented him with an eagle feather, a smudge bowl, some medicines, and other items which began his medicine bundle.
[8] Over time, Mr. Ewert’s medicine bundle has grown. He has received further teachings from Elders. He has received from Elders other medicines, sacred items, stones of spiritual significance, artefacts such as arrowheads, and the headbands he wears as part of his spiritual beliefs, discussed further below. He keeps these items in a cloth, with pouches to protect individual objects such as the stones and arrowheads. When he is not using the medicine bundle, the cloth is rolled and tied shut.
[9] Mr. Ewert’s medicine bundle is sacred to him. Mr. Ewert has been sober for almost four decades. He is no longer ashamed of his Indigenous identity. He attributes this healing to his reconnection with Indigenous culture and in particular to his medicine bundle. He views it as a “pure” object that acts like a second conscience.
[10] Given its sacred nature, one of the teachings Mr. Ewert received with respect to his medicine bundle is that he is the only one who should touch it. The evidence suggests this is a widely held belief in Indigenous communities. Part of a CSC manual addressing Principles of Religious and Spiritual Accommodation filed in evidence (undated but apparently from around April 2005) recognized that “[a] medicine bundle is sacred and the preservation of its spiritual value can be assured only if it is handled by its owner or by the person entrusted with its care.” Ginette Nadon, an Elder in the Algonquin community who worked under contract with CSC in July 2019 and who gave evidence at trial, similarly confirmed that in her experience of sweat lodge ceremonies, no-one but the owner of a medicine bundle would handle it, and that there are even those who believe that if another touches their medicine bundle, they will die.
[11] The Crown, appropriately, does not contest any of the foregoing, nor the sincerity and strength of Mr. Ewert’s beliefs regarding his medicine bundle, including the importance of it being handled only by himself. As discussed in further detail below, Mr. Ewert has had a number of issues regarding the treatment of his medicine bundle by CSC staff over the years. He has consistently fought to maintain his medicine bundle, to have it respected, and to be the only person who touches it.
(2) The legislative and regulatory context of the search [12] Mr. Ewert’s incarceration in the federal correctional system, and CSC’s control and supervision of that incarceration, are governed by provisions of the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA], and the associated Corrections and Conditional Release Regulations, SOR/92-620 [CCRR]. The CCRA defines the purpose of the federal correctional system as being to “contribute to the maintenance of a just, peaceful and safe society” by carrying out sentences through the safe and humane custody and supervision of offenders, and assisting their rehabilitation and reintegration into the community through the provision of programs: CCRA, s 3.
[13] The CCRA sets out principles that guide the CSC in achieving this purpose. The paramount consideration is the protection of society: CCRA, s 3.1. Other principles include that CSC uses the least restrictive measures consistent with the protection of society, staff, and offenders; that offenders retain the rights of all members of society except those that are lawfully and necessarily removed or restricted; and that correctional policies, programs, and practices respect, among other things, cultural and religious differences and are responsive to the needs of Indigenous persons: CCRA, s 4(c), (d), (g).
[14] As Mr. Ewert recognizes, searches of inmates are an important element of security in the penitentiary context. The CCRA and CCRR contain various provisions dealing with searches of inmates, their possessions, and their cells: CCRA, ss 46–58; CCRR, ss 43–53. Particularly relevant to this proceeding is section 47 of the CCRA, which permits routine non-intrusive or frisk searches of inmates without individualized suspicion, in prescribed circumstances, limited to what is reasonably required for security purposes. Section 47 of the CCRR sets out the prescribed circumstances, which include an inmate entering or leaving a penitentiary, a secure area, or a work or activity area.
[15] The CCRA also has a number of provisions pertaining to Indigenous offenders in particular: CCRA, ss 79–84.1. Of note, paragraph 79.1(1)(c) requires that in making decisions affecting an Indigenous offender, CSC shall consider the Indigenous culture and identity of the offender; section 82 provides for the establishment of Indigenous advisory committees; and section 83 underscores that Indigenous spirituality, spiritual leaders, and Elders “have the same status as other religions and other religious leaders.”
[16] Pursuant to sections 97 and 98 of the CCRA, the Commissioner of Corrections has issued a number of Commissioner’s Directives for carrying out the purposes and provisions of the CCRA, which are amended from time to time. At trial, the Court heard evidence from Kathleen Angus, Regional Administrator with the Indigenous Initiatives Directorate at CSC. She indicated that following the enactment of the CCRA in 1992, and notably the provisions pertaining to Indigenous offenders referred to above, various Commissioner’s Directives were implemented to take Indigenous practices and experiences into consideration. Based on her understanding from her role, the policies in these Directives were developed in consultation with Elders and Indigenous organizations, through the National Indigenous Advisory Committee established pursuant to section 82 of the CCRA.
[17] I note that the versions of relevant Commissioner’s Directives that were filed in evidence date from the mid-2010s and earlier rather than being either the most recent versions or those applicable in 2019. These older versions, filed in their English versions, use the term “Aboriginal” rather than “Indigenous.” To the Court’s understanding, current English versions of the Commissioner’s Directives use the term “Indigenous,” as does the CCRA following amendments in 2019: An Act to amend the Corrections and Conditional Release Act and another Act, SC 2019, c 27. In quoting the documents in the English version of this judgment, I will use the original text, but will otherwise use the term “Indigenous.” In French, use of the term “autochtone” has remained consistent. Conversely, while the English term “medicine bundle” has generally remained constant, a number of French terms are used, including “ballot de médecine autochtone” and “sac sacré.” In the French version of this judgment, the original text from the French versions of the documents will be used, but I will otherwise use the term “sac de médecine,” as this was the term the witnesses generally used when referring to Mr. Ewert’s medicine bundle in French.
[18] Commissioner’s Directives have addressed the issue of searching medicine bundles since at least the mid-1990s. The 1995 version of Commissioner’s Directive 702, then entitled “Aboriginal Programming” and now entitled “Indigenous Offenders” [CD 702], included a definition of “medicine bundle” and protocols for searching them, using language also seen in the section of the 2005 CSC manual addressing Principles of Religious and Spiritual Accommodation referred to above:
14. “Medicine bundle” means a receptacle of any size, or a blanket of any size, either of which contain natural objects or substances of spiritual value. A medicine bundle is considered to be sacred. To preserve its spiritual value, it should be handled only by its owner or by the person entrusted with its care.
[…]
21. Aboriginal inmates shall be permitted personal possession of medicine bundles and other sacred objects which have been provided or sanctioned by an Elder whose services to inmates have been solicited by the institution. Any required security examination of such bundles or objects shall normally be accomplished by having the owner manipulate them for visual inspection by the examining officer.
[Emphasis added.]
[19] CD 702 was subsequently amended to remove reference to medicine bundles. Protocols regarding searches of medicine bundles are now instead found in Commissioner’s Directive 566-7: Searching of Offenders [CD 566-7] and Commissioner’s Directive 566-9: Searching of Cells, Vehicles and Other Areas of the Institution [CD 566-9]. Section 10 of CD 566-7 reads as follows:
10. Any required security examination of Aboriginal medicine bundles, religious and spiritual articles or other sacred objects will be accomplished by having the owner manipulate them for visual inspection by the examining officer. In the owner’s absence, an Elder, an Elder’s representative (who is not an inmate) or a religious representative will inspect or manipulate the contents for inspection.
[Emphasis added.]
[20] The 2011 version of CD 566-9 in the record has a provision identical to section 10. Although not in evidence, the Crown advised the Court that the current version of CD 566-9 has a similar provision, with slightly different wording, as section 15. The parties agree that regardless of any subsequent changes in language or numbering, the language set out above as section 10 of CD 566-7 reflected the applicable CSC policy with respect to searches of medicine bundles and other sacred objects. I will therefore refer to this policy simply as “section 10” or the “CSC sacred object search policy.”
[21] As can be seen, section 10 recognizes the principle that the owner of a medicine bundle should be the one to handle it, while providing that an Elder or Elder’s representative will do so “[i]n the owner’s absence.” The meaning of the phrase “[i]n the owner’s absence” was the subject of evidence and argument, as discussed further below.
[22] Also of relevance is Commissioner’s Directive 566-12: Personal Property of Offenders [CD 566-12]. That directive sets out national lists of personal property that will normally be allowed, together with various rules and policies regarding such personal property. Of note, section 69 of CD 566-12 states that following the arrival of an inmate, “the receiving institution will normally issue personal items to the inmate within 10 working days after the effects have been received.”
(3) The search (a) Context of the search [23] On June 17, 2019, Mr. Ewert was transferred from La Macaza Institution, a medium security facility in La Macaza, Quebec, to the minimum security unit of the Archambault Institution in Ste-Anne-des-Plaines, Quebec. The Archambault Institution is a clustered site, with a medium security unit and a minimum security unit. Mr. Ewert was transferred to Archambault Minimum after receiving a minimum security classification for the first time in his 35 years of incarceration.
[24] Mr. Ewert’s medicine bundle was searched before leaving La Macaza. That search was conducted by Mr. Ewert handling the medicine bundle and displaying its contents to a corrections officer and an Elder at La Macaza before travelling in a transport vehicle. The medicine bundle travelled in the transfer vehicle with Mr. Ewert.
[25] On arrival at Archambault Minimum, Mr. Ewert’s medicine bundle was taken and stored in the personal effects department. Ten days later, on June 27, Mr. Ewert was brought to the personal effects department by his new parole officer, Catherine Lesey. A search of the medicine bundle was conducted (not the one at issue in this action), during which Mr. Ewert was given the bundle in the presence of an Indigenous Liaison Officer, Chantale Chartrand, and a correctional officer, and was asked to open and show its contents. The search lasted about an hour, after which Mr. Ewert was permitted to take his medicine bundle back to his cell. Although Mr. Ewert feels there was no need for a ten-day delay before the search, he does not complain about the manner in which this search was conducted. Rather, the search appears to have been conducted in accordance with the CSC sacred object search policy, by having Mr. Ewert manipulate it for visual inspection by the examining officer.
[26] The same day, June 27, Mr. Ewert experienced difficulties with his parole officer, Ms. Lesey. During the course of a meeting about a six-month plan, Mr. Ewert made comments to Ms. Lesey that he says were intended in a light-hearted and joking way, but that pertained to her appearance and her attractiveness. Shortly thereafter, he was called to the principal entrance, where he was handcuffed and advised that Ms. Lesey had raised concerns about his comments and her safety, particularly in light of the nature of Mr. Ewert’s earlier crimes. Mr. Ewert was transferred to the Archambault Medium facility pending a review of his security classification.
[27] Mr. Ewert did not receive his medicine bundle, which had been in his cell at Archambault Minimum when he was transferred to Archambault Medium. On July 9, 2019, Mr. Ewert raised the issue of the whereabouts of his medicine bundle during a meeting with counsel for CSC about a claim arising from an earlier search of his medicine bundle at La Macaza Institution in 2017. A week later, on July 16, two correctional staff members came to Mr. Ewert’s cell and asked him where his medicine bundle was. He responded that he didn’t know, believing it to still be in his cell at Archambault Minimum. In fact, that cell had been cleaned within a day of his transfer to Archambault Medium.
[28] Later the same day, July 16, Mr. Ewert spoke to Elder Nadon, who was working under contract with CSC at Archambault, and Anabelle Morin, the Indigenous Liaison Officer at Archambault Medium. Mr. Ewert asked about his medicine bundle and underscored the importance of him being the only one to touch it. Ms. Morin, who gave evidence at trial, had very little recollection of the contents of this meeting, but agreed that she was aware that Mr. Ewert’s medicine bundle was an issue for him. Elder Nadon recalled Mr. Ewert saying that he did not want anyone touching his medicine bundle.
[29] Mr. Ewert met with Elder Nadon and Ms. Morin a number of times over the following week, discussing the medicine bundle among other things. On July 23, Mr. Ewert met with Elder Nadon, again asking after his medicine bundle. At this time, and to Mr. Ewert’s great surprise, Elder Nadon advised him that she and Ms. Morin had already searched the medicine bundle, a search that had occurred the week before, on July 17.
(b) Evidence regarding the search [30] When Mr. Ewert was transferred to Archambault Medium, his medicine bundle was taken directly to the office of a Correctional Manager, Mark Morris. Édith Desnoyers, Deputy Warden at Archambault, testified that it was sent to a Correctional Manager’s office, rather than the personal effects department where many people worked, given the concerns Mr. Ewert had raised during his transfer from La Macaza. Ms. Desnoyers said CSC wanted to ensure it knew where the medicine bundle was, to allow it to be searched in Mr. Ewert’s presence or in the presence of an Elder, and to return it to Mr. Ewert as quickly as possible. However, the search did not occur in Mr. Ewert’s presence and, as set out below, the medicine bundle was not returned to Mr. Ewert until he was transferred to another institution, almost a month later. Rather, Mr. Ewert’s medicine bundle was searched on July 17, 2019, in Mr. Morris’ office, in the presence of Mr. Morris, Elder Nadon, and Ms. Morin.
[31] Mr. Morris, the Correctional Manager who apparently made the decision to search Mr. Ewert’s medicine bundle in his absence, was not called to give evidence at trial.
[32] Ms. Morin recalled having assisted in the search of Mr. Ewert’s medicine bundle with Elder Nadon. However, she had limited recollection of the search itself, or of meetings with Mr. Ewert before or after the search. She did recall seeing a cardboard box containing Mr. Ewert’s Indigenous effects, including a ribbon shirt, a drum, rocks, bandanas, and his medicine bundle. She did not recall whether the medicine bundle was tied or not, or whether she or Elder Nadon had to untie it. She said that the search took place by looking at what was inside the pockets of the medicine bundle and advising the Correctional Manager what she and Elder Nadon recognized, did not recognize, what they knew Mr. Ewert could keep, and what should be stored elsewhere. She also had no recollection of what she did with the objects after the search, but relied on her own general practice of always putting objects back the way she found them.
[33] Elder Nadon similarly had some recollection of the search, but was unable to recall many details. She did not remember how the objects or the medicine bundle looked in the box when it was first opened. She originally recalled seeing pots of herbs and seeing the headbands in a corner of the box, but subsequently indicated she could not say with certainty and did not recall. She recalled that she was asked to identify the various plants and medicines, but beyond this had little recollection.
[34] Neither Ms. Morin nor Elder Nadon recalled raising an issue with Mr. Morris about touching Mr. Ewert’s medicine bundle or searching it in his absence, despite the concerns Mr. Ewert had raised the day before. Based on Elder Nadon’s testimony, it seemed clear that she did not consider it her role to raise such issues or to question decisions by correctional officers regarding searches. In contrast, Ms. Desnoyers testified that in her view, either a Correctional Manager or an Elder could say that an Indigenous inmate should be present for the search. In any event, I conclude that no such concern was raised. The search was conducted without Mr. Ewert and did not reveal any contraband.
[35] Mr. Ewert did not see his medicine bundle again until Friday, July 26. No evidence or explanation was given as to why the medicine bundle was not returned to Mr. Ewert immediately after the search. On July 26, Mr. Ewert met with CSC staff who told him his security classification would remain at minimum and discussed transfer options with him. Ms. Morin joined one of these meetings, and Mr. Ewert again asked after his medicine bundle. He was escorted to Mr. Morris’ office and shown his medicine bundle in the presence of Mr. Morris and Ms. Morin. Mr. Ewert’s evidence was that the bundle was in the cardboard box, but its contents were out of their pouches and sitting in the box. Stones and arrowheads, usually wrapped in velvet for protection, were loose in the box. In Mr. Ewert’s words, his medicine bundle was in “the worst disarray [he] had ever seen.”
[36] Mr. Ewert was then advised that he could not take the entirety of his bundle back to his cell. Rather, Ms. Morin told him that he could only take a few items with him for the weekend, prior to his anticipated transfer to a new minimum security facility. Mr. Ewert explained that his medicine bundle is a single unit that is not readily subdivided, but he was still told he could only take a few items. He selected some items and returned to his cell.
[37] Mr. Ewert was not cross-examined on this evidence, except being asked to confirm that none of the items in his medicine bundle had been chipped or broken. Ms. Morin has no recollection of the events of July 26. As noted above, Mr. Morris was not called to give evidence. Mr. Ewert’s evidence regarding what he saw and the state of his medicine bundle on July 26 was detailed, consistent, straightforward, and stands uncontroverted. I accept his evidence.
[38] On Tuesday, July 30, Mr. Ewert was transferred to the minimum security unit at another multi-level facility in Quebec, known as Federal Training Centre (FTC)-6099. Prior to his transfer, he was brought to Mr. Morris’ office to retrieve his medicine bundle. It travelled in the same transport vehicle with him to FTC-6099. Upon arrival, Mr. Ewert met with an Elder, who sat with him while he displayed the contents of the medicine bundle for the Elder’s inspection. Mr. Ewert then packed up the bundle and took it to his new cell. He raises no issues with respect to this search of his medicine bundle.
[39] Based on my appreciation of the evidence given by Mr. Ewert, Ms. Desnoyers, Elder Nadon, and Ms. Morin, I conclude that the following occurred between Mr. Ewert’s transfer to Archambault Medium on June 27 and his transfer to FTC-6099 on July 30:
(a)Mr. Ewert’s medicine bundle was taken from his cell at Archambault Minimum and placed with other items in a box, brought to Archambault Medium, and placed in the office of Mr. Morris, a Correctional Manager.
(b)At some point prior to July 17, the medicine bundle was opened by unknown CSC staff. Only this can account for Ms. Morin seeing rocks and bandanas in the box when it was first opened, and Elder Nadon seeing bandanas, items which Mr. Ewert kept tied up in his medicine bundle.
(c)On July 17, the medicine bundle was searched by Elder Nadon and Ms. Morin in Mr. Morris’ office. Mr. Ewert was present at Archambault Medium and could have been brought to the office or another location for the search, but was not. No witness suggested there was any urgency associated with the search.
(d)At the conclusion of the search or at some point afterwards, the contents of Mr. Ewert’s medicine bundle were placed in the cardboard box, outside the medicine bundle itself. There is little reason to doubt Elder Nadon and Ms. Morin’s evidence that they believe they treated the items in the medicine bundle with care, and Ms. Morin’s evidence that her practice was to return articles to where she found them. However, whether it was the outcome of the search or something that occurred later, the contents of Mr. Ewert’s medicine bundle were removed from the bundle, removed from pouches and protective fabric, and left loose in the bottom of the cardboard box. This is the only inference that concords with the condition in which Mr. Ewert saw them on July 26, evidence on which he was not contradicted.
(e)Mr. Ewert’s medicine bundle was not returned to him after the search. He was not told about the search until July 23, was not taken to see his medicine bundle until July 26, was permitted to only take certain items from it at that time, and his medicine bundle was not returned to him until July 30.
[40] The Crown argues I should not draw the inferences referred to above, notably those in paragraphs (b) and (d), based on the direction in article 2849 of the Civil Code of Québec that the Court “shall take only serious, precise and concordant presumptions into consideration.” A “presumption” for this purpose is an inference drawn by the law or the court from a known fact to an unknown fact: Civil Code of Québec, art 2846. I am satisfied that the inferences above in paragraphs (b) and (d) regarding the handling of Mr. Ewert’s bundle meet the requirements of “serious, precise and concordant presumptions”: Benhaim v St-Germain, 2016 SCC 48 at paras 59–60. In particular, the connection between the known facts (the state of the medicine bundle when first seen by, respectively, Ms. Morin, Elder Nadon, and Mr. Ewert) and the unknown facts (how they came to be in that state) is such that the existence of one establishes the other in a clear and obvious manner. In my view, no different or contrary inference is consistent with the known facts, and no contradictory evidence was presented. In this regard, the Crown’s reference to Mr. Ewert’s admission that his arrowheads had not been scratched or damaged is beside the point. The fact that objects had been removed and stones and arrowheads were out of the medicine bundle is in no way contradicted by the fact that the objects were not permanently damaged.
[41] I note the Crown argues that article 2849 of the Civil Code of Québec applies by virtue of section 40 of the Canada Evidence Act, RSC 1985, c C-5. Section 40 provides that in proceedings over which Parliament has authority, the applicable laws of evidence are those “in force in the province in which those proceedings are taken” [emphasis added] (in the French version of the statute, “qui sont en vigueur dans la province où ces procédures sont exercées” [emphasis added]).
[42] Having reviewed the limited jurisprudence on the application of section 40 of the Canada Evidence Act to proceedings in this Court, there is in my view some uncertainty as to whether these proceedings “are taken” in Quebec. In various cases, federal courts have referred to the location of commencement, pursuance, and/or trial as being where proceedings are “taken”: see, e.g., Anderson v Canada (Attorney General), 1997 CanLII 17645 (FC); Desroches v The Queen, 2013 TCC 81 at para 33; Canada (Citizenship and Immigration) v Halindintwali, 2015 FC 390 at para 96; Tepper v Canada (Attorney General), 2020 FC 1046 at para 2; Porto Seguro Companhia de Seguros Gerais v Belcan SA, [1996] 2 FC 751 (CA) at para 8, rev’d on other grounds, [1997] 3 SCR 1278; South Yukon Forest Corporation v Canada, 2010 FC 495 at paras 1–4, 40–41, rev’d on other grounds, 2012 FCA 165, leave to appeal ref’d, 2012 CanLII 76981 (SCC).
[43] In the present case, the action was commenced in Vancouver, the causes of action arose in Quebec, and the trial was held at a sitting of the Court in Montreal (by videoconference), with the parties in Quebec. I question whether the applicable rules of evidence should be determined solely by the location of the Registry Office where the originating document was issued. In the present case, I am satisfied that the laws of evidence of Quebec should apply, as proposed by the Minister, while noting that none of my conclusions would differ if the British Columbia laws of evidence applied.
[44] Having reviewed the factual nature of the search, I turn to Mr. Ewert’s Charter claims.
(4) Section 2(a) of the Charter [45] As set out above, Mr. Ewert alleges that the search of his medicine bundle infringed his rights and freedoms under sections 2, 7, 8, 12, and 15 of the Charter. The parties focused most of their arguments on section 2(a) of the Charter. For the reasons expressed below, I conclude that section 2(a) is the most directly implicated Charter right. Since the factual matrix underpinning each of the Charter claims is the same, and since I find section 2(a) has been infringed, I will follow the approach of the Supreme Court of Canada in Trinity Western and focus my discussion on that provision: Law Society of British Columbia v Trinity Western University, 2018 SCC 32 at paras 76–78.
[46] Section 2(a) of the Charter guarantees “freedom of conscience and religion” as a fundamental freedom. An infringement of section 2(a) is made out where (1) the claimant sincerely believes in a belief or practice that has a nexus with religion; and (2) the impugned measure interferes with the claimant’s ability to act in accordance with their religious beliefs in a manner that is more than trivial or insubstantial: Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para 32, citing Syndicat Northcrest v Amselem, 2004 SCC 47 and Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6; Trinity Western at para 63. If there has been such an infringement, the question becomes whether the limit is a reasonable one, prescribed by law and demonstrably justified in a free and democratic society: Charter, s 1; Hutterian Brethren at para 34; Loyola High School v Quebec (Attorney General), 2015 SCC 12 at para 39.
(a) Mr. Ewert’s sincere beliefs have a nexus with religion [47] The Crown does not challenge the sincerity of Mr. Ewert’s beliefs and practices with respect to his medicine bundle, nor their nexus with religion. I am satisfied that the evidence, including Mr. Ewert’s testimony, establishes that he sincerely believes that his medicine bundle is a pure and sacred object; that it has assisted him in his healing, recovery, and sobriety; that it is to be kept in his possession; that he should be the only person who touches his medicine bundle; and that it is desecrated if anyone other than him touches it, particularly, but not exclusively, if that person has consumed drugs or alcohol, or is “on their moon time” (menstruating); and that it is to be kept together and not subdivided. Given the connection between these beliefs and Mr. Ewert’s spiritual faith, I am satisfied that his beliefs have a nexus with religion: Amselem at para 56.
(b) The treatment of Mr. Ewert’s medicine bundle was a non-trivial interference [48] In my view, Mr. Ewert has established that the search of his medicine bundle constituted a non-trivial interference with his ability to act in accordance with his religious beliefs. The assessment of what constitutes a non-trivial interference is context-dependent: Amselem at para 60. In the present case, Mr. Ewert’s medicine bundle was kept out of his possession for a period of almost one month, preventing him from practising his beliefs through the use and possession of his medicine bundle. It was also searched in a manner that involved others touching the medicine bundle and its contents, an act that Mr. Ewert sincerely believes to be an act of desecration. He was then permitted to only take certain items from his medicine bundle, rather than the entire bundle, although the search had not revealed any items he was prohibited from having in his cell. In the context of Mr. Ewert’s evidence regarding the importance of his medicine bundle, his relationship to it, and its relationship to his spiritual and traditional beliefs, these are non-trivial matters.
[49] I note that the interference with Mr. Ewert’s religious freedoms was not simply an accidental or unknowing one. The evidence clearly establishes that CSC was well aware of the spiritual importance and sacredness of medicine bundles generally, and of Mr. Ewert’s beliefs regarding his medicine bundle in particular. Indeed, Mr. Ewert specifically raised his concern that no-one else should touch his medicine bundle with Elder Nadon and Ms. Morin the day before the search. Although both were then asked to, and did, participate in the search, neither raised any concerns with the Correctional Manager, Mr. Morris.
[50] It is worth highlighting one other aspect of Elder Nadon’s evidence on this point. Elder Nadon knew of Mr. Ewert’s belief that no-one else should touch his medicine bundle, and agreed this belief was consistent with her own knowledge of traditional beliefs regarding sacred objects, such as her own eagle feather. However, Elder Nadon considered it necessary to clarify that her responses related to her understanding with respect to matters outside a penitentiary, and that within a penitentiary, it was [translation] “completely different.” This then led to the following responses to questions from Mr. Ewert:
Q: So, Mme Nadon, you were just telling the Court that your discussion about someone touching your feather, you were referring to what happens outside a prison, and not what happens inside a prison, correct?
A: [translation] Correct.
Q: And so, are you saying that if somebody touched your feather inside a prison, without your permission, that would be okay?
A: [translation] There is a big difference, Mr. Ewert, between you and me. I am an Elder, you are an inmate. So the policies are not the same. Unfortunately, if the inmate cannot be present, the Elder and her [Indigenous Liaison Officer] have the right to conduct searches without the presence of the inmate. We spoke about that at the beginning. So, and I, what I can assure you is that all that I did was with respect for your beliefs and your items.
[Emphasis added.]
[51] Elder Nadon’s statements regarding the differences between inmates and non-inmates appear to pertain to CSC search policies, and to section 10 of CD 566-7 in particular, and not to the impact of touching a person’s medicine bundle from a religious or spiritual perspective. I address the question of CSC policies below in considering justification under section 1 of the Charter. However, to the extent that Elder Nadon may have been suggesting that what constitutes an interference with a religious belief is different for an inmate and a non-inmate, I cannot agree. As Justice Norris of this Court recently affirmed, “correctional institutions are not Charter-free zones”: Richards v Canada, 2022 FC 1763 at para 273; see also R v Joseph, 2014 ONCJ 559 at para 38, citing R v Taylor, 2014 SCC 50 at para 34. While the institutional setting is relevant to the question of justification, it does not prevent CSC’s actions from constituting an interference with Mr. Ewert’s freedom of religion. I also note that I agree with Mr. Ewert that given his beliefs only he should touch his medicine bundle, Elder Nadon’s assertion that she handled his medicine bundle and conducted the search [translation] “with respect” for his beliefs is difficult to reconcile. She may have handled his medicine bundle with care, but doing so without raising his concerns about who touched the bundle, or suggesting that he be present to handle it himself, showed little respect for his beliefs.
[52] Similarly, Mr. Ewert was required to separate his bundle despite his express advice that this was contrary to his practices. In this regard, I agree with the views of Ms. Angus, who gave the following response to Mr. Ewert’s question as to whether it was appropriate to ask an Indigenous inmate to take his medicine bundle apart piecemeal:
I believe it’s appropriate. At the end […] of the day, if it’s not something that culturally makes sense to the person being asked, then that can be shared. But from the start, knowing that we come from various traditions, and that we are open to the differences, and that we can […] ask out of good faith. And I think that it’s fair that somebody did ask that in the spirit of reassuring or in the spirit of ensuring that you had access to your medicine. Now, whether or not this [taking it apart] was something that you felt was appropriate or not [in] receiving it, in the sense that if it’s not something that you usually do, then it’s okay to state it.
[Emphasis added.]
[53] In the present case, Mr. Ewert was asked to take some objects from his bundle. He expressed that he did not consider it appropriate to subdivide the bundle. Nonetheless, this expression of his religious practices was ignored and he was required to separate his bundle. This constituted a further infringement of his religious freedoms.
[54] In closing submissions, the Crown did not argue that the detention, search, and retention of Mr. Ewert’s medicine bundle was not an interference with his ability to act in accordance with his beliefs, or that any such interference was trivial or insubstantial. Nor did the Crown argue tha

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Ewert v. Canada Court (s) Database Federal Court Decisions Date 2023-08-01 Neutral citation 2023 FC 1054 File numbers T-2069-19 Decision Content Date: 20230801 Docket: T-2069-19 Citation: 2023 FC 1054 Ottawa, Ontario, August 1, 2023 PRESENT: Mr. Justice McHaffie BETWEEN: JEFFREY G. EWERT Plaintiff and HIS MAJESTY THE KING IN RIGHT OF CANADA Defendant JUDGMENT AND REASONS I. Overview [1] Like many Indigenous inmates who follow traditional teachings and healing practices, Jeffrey Ewert carries a medicine bundle. His medicine bundle began with an eagle feather that an Elder presented to him over 30 years ago. It has grown over the course of his lengthy incarceration and now includes a variety of herbal medicines, stones, and artefacts. Mr. Ewert considers it sacred and believes it is desecrated if touched by someone else. In furtherance of his spiritual beliefs, and as part of his medicine bundle, Mr. Ewert wears headbands that have significance to him based on their colour, the Elders who presented them, and the teachings he has received. [2] In this claim against the Crown, Mr. Ewert asserts that in the summer of 2019, Correctional Services Canada (CSC) violated his rights under the Canadian Charter of Rights and Freedoms by searching his medicine bundle in his absence contrary to CSC policy, and by asking or requiring him to remove his headbands for photographs and searches. He seeks damages and declarations as remedies for those breaches of the Charter. [3] For the reasons below, I conclude that CSC’s detention and search of Mr. Ewert’s medicine bundle in July 2019 violated his rights under sections 2(a) and 8 of the Charter in a manner not justified under section 1 of the Charter. However, I conclude that Mr. Ewert has not demonstrated that the requests and demands made regarding his headbands in July and August of 2019 breached his Charter rights. Having reviewed the various factors relevant to the award and quantum of damages under subsection 24(1) of the Charter, I conclude that an award of $7,500 is an appropriate and just award to remedy the Charter breaches I have identified. II. Issues [4] Mr. Ewert’s original statement of claim raises a broad number of issues, including allegations regarding the reasons for his prolonged incarceration and retaliation against him for various legal proceedings he has brought against the Crown to defend his spiritual beliefs and practices. However, during the course of case management of this action, the parties agreed that only the following three issues were to be determined at trial, which I have slightly rephrased: Did the search of Mr. Ewert’s medicine bundle conducted by CSC personnel on July 17, 2019, infringe upon any of his rights under sections 2, 7, 8, 12, and/or 15 of the Charter? Did CSC personnel harass Mr. Ewert with respect to his wearing of headbands in accordance with his traditional teachings and spiritual beliefs between the months of June and August 2019, in violation of his rights under sections 2, 7, 8, 12, and/or 15 of the Charter? If so, is Mr. Ewert entitled to damages pursuant to subsection 24(1) of the Charter? III. Analysis A. The search of Mr. Ewert’s medicine bundle on July 17, 2019, infringed Mr. Ewert’s rights under section 2(a) of the Charter (1) Mr. Ewert’s medicine bundle [5] I begin with a discussion of the origins and nature of Mr. Ewert’s medicine bundle and his spiritual connection to it, given their importance in this litigation. [6] Mr. Ewert describes himself as having been part of the Sixties Scoop. He was put under protection of the Children’s Aid Society at birth and was placed for adoption with a non-Indigenous family in Surrey, British Columbia. The severance of ties to his culture and community meant he had little support when facing racism in school and the community in his youth, difficulties that were compounded by his adoptive parents’ mental health and substance abuse issues. He grew up ashamed of his Indigenous heritage, lacking direction and self-respect. He turned to alcohol and drugs at a young age. In May and June 1984, at the age of 22, he committed two horrific crimes—the second-degree murder of one young woman and the attempted murder of another—of which he was later convicted: see R v Ewert, [1992] 3 SCR 161, rev’g 1991 CanLII 5763 (BC CA). Mr. Ewert has been incarcerated since July 1984. [7] Mr. Ewert described his transfer to a federal penitentiary in British Columbia as “the first time [he] was really exposed to Indigenous culture, […] seeing the Indigenous Brothers in the institution doing what they do.” He immersed himself in Indigenous culture within the correctional system, working with the Native Brotherhood to press for recognition of Indigenous rights and practices in the prison setting. He met with Elders and began receiving their teachings regarding Indigenous spirituality. While acting as a Chief for the Native Brotherhood in 1990, Mr. Ewert conducted a fast as part of the blessing of a new sweat lodge. The Elder who led him to that fast presented him with an eagle feather, a smudge bowl, some medicines, and other items which began his medicine bundle. [8] Over time, Mr. Ewert’s medicine bundle has grown. He has received further teachings from Elders. He has received from Elders other medicines, sacred items, stones of spiritual significance, artefacts such as arrowheads, and the headbands he wears as part of his spiritual beliefs, discussed further below. He keeps these items in a cloth, with pouches to protect individual objects such as the stones and arrowheads. When he is not using the medicine bundle, the cloth is rolled and tied shut. [9] Mr. Ewert’s medicine bundle is sacred to him. Mr. Ewert has been sober for almost four decades. He is no longer ashamed of his Indigenous identity. He attributes this healing to his reconnection with Indigenous culture and in particular to his medicine bundle. He views it as a “pure” object that acts like a second conscience. [10] Given its sacred nature, one of the teachings Mr. Ewert received with respect to his medicine bundle is that he is the only one who should touch it. The evidence suggests this is a widely held belief in Indigenous communities. Part of a CSC manual addressing Principles of Religious and Spiritual Accommodation filed in evidence (undated but apparently from around April 2005) recognized that “[a] medicine bundle is sacred and the preservation of its spiritual value can be assured only if it is handled by its owner or by the person entrusted with its care.” Ginette Nadon, an Elder in the Algonquin community who worked under contract with CSC in July 2019 and who gave evidence at trial, similarly confirmed that in her experience of sweat lodge ceremonies, no-one but the owner of a medicine bundle would handle it, and that there are even those who believe that if another touches their medicine bundle, they will die. [11] The Crown, appropriately, does not contest any of the foregoing, nor the sincerity and strength of Mr. Ewert’s beliefs regarding his medicine bundle, including the importance of it being handled only by himself. As discussed in further detail below, Mr. Ewert has had a number of issues regarding the treatment of his medicine bundle by CSC staff over the years. He has consistently fought to maintain his medicine bundle, to have it respected, and to be the only person who touches it. (2) The legislative and regulatory context of the search [12] Mr. Ewert’s incarceration in the federal correctional system, and CSC’s control and supervision of that incarceration, are governed by provisions of the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA], and the associated Corrections and Conditional Release Regulations, SOR/92-620 [CCRR]. The CCRA defines the purpose of the federal correctional system as being to “contribute to the maintenance of a just, peaceful and safe society” by carrying out sentences through the safe and humane custody and supervision of offenders, and assisting their rehabilitation and reintegration into the community through the provision of programs: CCRA, s 3. [13] The CCRA sets out principles that guide the CSC in achieving this purpose. The paramount consideration is the protection of society: CCRA, s 3.1. Other principles include that CSC uses the least restrictive measures consistent with the protection of society, staff, and offenders; that offenders retain the rights of all members of society except those that are lawfully and necessarily removed or restricted; and that correctional policies, programs, and practices respect, among other things, cultural and religious differences and are responsive to the needs of Indigenous persons: CCRA, s 4(c), (d), (g). [14] As Mr. Ewert recognizes, searches of inmates are an important element of security in the penitentiary context. The CCRA and CCRR contain various provisions dealing with searches of inmates, their possessions, and their cells: CCRA, ss 46–58; CCRR, ss 43–53. Particularly relevant to this proceeding is section 47 of the CCRA, which permits routine non-intrusive or frisk searches of inmates without individualized suspicion, in prescribed circumstances, limited to what is reasonably required for security purposes. Section 47 of the CCRR sets out the prescribed circumstances, which include an inmate entering or leaving a penitentiary, a secure area, or a work or activity area. [15] The CCRA also has a number of provisions pertaining to Indigenous offenders in particular: CCRA, ss 79–84.1. Of note, paragraph 79.1(1)(c) requires that in making decisions affecting an Indigenous offender, CSC shall consider the Indigenous culture and identity of the offender; section 82 provides for the establishment of Indigenous advisory committees; and section 83 underscores that Indigenous spirituality, spiritual leaders, and Elders “have the same status as other religions and other religious leaders.” [16] Pursuant to sections 97 and 98 of the CCRA, the Commissioner of Corrections has issued a number of Commissioner’s Directives for carrying out the purposes and provisions of the CCRA, which are amended from time to time. At trial, the Court heard evidence from Kathleen Angus, Regional Administrator with the Indigenous Initiatives Directorate at CSC. She indicated that following the enactment of the CCRA in 1992, and notably the provisions pertaining to Indigenous offenders referred to above, various Commissioner’s Directives were implemented to take Indigenous practices and experiences into consideration. Based on her understanding from her role, the policies in these Directives were developed in consultation with Elders and Indigenous organizations, through the National Indigenous Advisory Committee established pursuant to section 82 of the CCRA. [17] I note that the versions of relevant Commissioner’s Directives that were filed in evidence date from the mid-2010s and earlier rather than being either the most recent versions or those applicable in 2019. These older versions, filed in their English versions, use the term “Aboriginal” rather than “Indigenous.” To the Court’s understanding, current English versions of the Commissioner’s Directives use the term “Indigenous,” as does the CCRA following amendments in 2019: An Act to amend the Corrections and Conditional Release Act and another Act, SC 2019, c 27. In quoting the documents in the English version of this judgment, I will use the original text, but will otherwise use the term “Indigenous.” In French, use of the term “autochtone” has remained consistent. Conversely, while the English term “medicine bundle” has generally remained constant, a number of French terms are used, including “ballot de médecine autochtone” and “sac sacré.” In the French version of this judgment, the original text from the French versions of the documents will be used, but I will otherwise use the term “sac de médecine,” as this was the term the witnesses generally used when referring to Mr. Ewert’s medicine bundle in French. [18] Commissioner’s Directives have addressed the issue of searching medicine bundles since at least the mid-1990s. The 1995 version of Commissioner’s Directive 702, then entitled “Aboriginal Programming” and now entitled “Indigenous Offenders” [CD 702], included a definition of “medicine bundle” and protocols for searching them, using language also seen in the section of the 2005 CSC manual addressing Principles of Religious and Spiritual Accommodation referred to above: 14. “Medicine bundle” means a receptacle of any size, or a blanket of any size, either of which contain natural objects or substances of spiritual value. A medicine bundle is considered to be sacred. To preserve its spiritual value, it should be handled only by its owner or by the person entrusted with its care. […] 21. Aboriginal inmates shall be permitted personal possession of medicine bundles and other sacred objects which have been provided or sanctioned by an Elder whose services to inmates have been solicited by the institution. Any required security examination of such bundles or objects shall normally be accomplished by having the owner manipulate them for visual inspection by the examining officer. [Emphasis added.] [19] CD 702 was subsequently amended to remove reference to medicine bundles. Protocols regarding searches of medicine bundles are now instead found in Commissioner’s Directive 566-7: Searching of Offenders [CD 566-7] and Commissioner’s Directive 566-9: Searching of Cells, Vehicles and Other Areas of the Institution [CD 566-9]. Section 10 of CD 566-7 reads as follows: 10. Any required security examination of Aboriginal medicine bundles, religious and spiritual articles or other sacred objects will be accomplished by having the owner manipulate them for visual inspection by the examining officer. In the owner’s absence, an Elder, an Elder’s representative (who is not an inmate) or a religious representative will inspect or manipulate the contents for inspection. [Emphasis added.] [20] The 2011 version of CD 566-9 in the record has a provision identical to section 10. Although not in evidence, the Crown advised the Court that the current version of CD 566-9 has a similar provision, with slightly different wording, as section 15. The parties agree that regardless of any subsequent changes in language or numbering, the language set out above as section 10 of CD 566-7 reflected the applicable CSC policy with respect to searches of medicine bundles and other sacred objects. I will therefore refer to this policy simply as “section 10” or the “CSC sacred object search policy.” [21] As can be seen, section 10 recognizes the principle that the owner of a medicine bundle should be the one to handle it, while providing that an Elder or Elder’s representative will do so “[i]n the owner’s absence.” The meaning of the phrase “[i]n the owner’s absence” was the subject of evidence and argument, as discussed further below. [22] Also of relevance is Commissioner’s Directive 566-12: Personal Property of Offenders [CD 566-12]. That directive sets out national lists of personal property that will normally be allowed, together with various rules and policies regarding such personal property. Of note, section 69 of CD 566-12 states that following the arrival of an inmate, “the receiving institution will normally issue personal items to the inmate within 10 working days after the effects have been received.” (3) The search (a) Context of the search [23] On June 17, 2019, Mr. Ewert was transferred from La Macaza Institution, a medium security facility in La Macaza, Quebec, to the minimum security unit of the Archambault Institution in Ste-Anne-des-Plaines, Quebec. The Archambault Institution is a clustered site, with a medium security unit and a minimum security unit. Mr. Ewert was transferred to Archambault Minimum after receiving a minimum security classification for the first time in his 35 years of incarceration. [24] Mr. Ewert’s medicine bundle was searched before leaving La Macaza. That search was conducted by Mr. Ewert handling the medicine bundle and displaying its contents to a corrections officer and an Elder at La Macaza before travelling in a transport vehicle. The medicine bundle travelled in the transfer vehicle with Mr. Ewert. [25] On arrival at Archambault Minimum, Mr. Ewert’s medicine bundle was taken and stored in the personal effects department. Ten days later, on June 27, Mr. Ewert was brought to the personal effects department by his new parole officer, Catherine Lesey. A search of the medicine bundle was conducted (not the one at issue in this action), during which Mr. Ewert was given the bundle in the presence of an Indigenous Liaison Officer, Chantale Chartrand, and a correctional officer, and was asked to open and show its contents. The search lasted about an hour, after which Mr. Ewert was permitted to take his medicine bundle back to his cell. Although Mr. Ewert feels there was no need for a ten-day delay before the search, he does not complain about the manner in which this search was conducted. Rather, the search appears to have been conducted in accordance with the CSC sacred object search policy, by having Mr. Ewert manipulate it for visual inspection by the examining officer. [26] The same day, June 27, Mr. Ewert experienced difficulties with his parole officer, Ms. Lesey. During the course of a meeting about a six-month plan, Mr. Ewert made comments to Ms. Lesey that he says were intended in a light-hearted and joking way, but that pertained to her appearance and her attractiveness. Shortly thereafter, he was called to the principal entrance, where he was handcuffed and advised that Ms. Lesey had raised concerns about his comments and her safety, particularly in light of the nature of Mr. Ewert’s earlier crimes. Mr. Ewert was transferred to the Archambault Medium facility pending a review of his security classification. [27] Mr. Ewert did not receive his medicine bundle, which had been in his cell at Archambault Minimum when he was transferred to Archambault Medium. On July 9, 2019, Mr. Ewert raised the issue of the whereabouts of his medicine bundle during a meeting with counsel for CSC about a claim arising from an earlier search of his medicine bundle at La Macaza Institution in 2017. A week later, on July 16, two correctional staff members came to Mr. Ewert’s cell and asked him where his medicine bundle was. He responded that he didn’t know, believing it to still be in his cell at Archambault Minimum. In fact, that cell had been cleaned within a day of his transfer to Archambault Medium. [28] Later the same day, July 16, Mr. Ewert spoke to Elder Nadon, who was working under contract with CSC at Archambault, and Anabelle Morin, the Indigenous Liaison Officer at Archambault Medium. Mr. Ewert asked about his medicine bundle and underscored the importance of him being the only one to touch it. Ms. Morin, who gave evidence at trial, had very little recollection of the contents of this meeting, but agreed that she was aware that Mr. Ewert’s medicine bundle was an issue for him. Elder Nadon recalled Mr. Ewert saying that he did not want anyone touching his medicine bundle. [29] Mr. Ewert met with Elder Nadon and Ms. Morin a number of times over the following week, discussing the medicine bundle among other things. On July 23, Mr. Ewert met with Elder Nadon, again asking after his medicine bundle. At this time, and to Mr. Ewert’s great surprise, Elder Nadon advised him that she and Ms. Morin had already searched the medicine bundle, a search that had occurred the week before, on July 17. (b) Evidence regarding the search [30] When Mr. Ewert was transferred to Archambault Medium, his medicine bundle was taken directly to the office of a Correctional Manager, Mark Morris. Édith Desnoyers, Deputy Warden at Archambault, testified that it was sent to a Correctional Manager’s office, rather than the personal effects department where many people worked, given the concerns Mr. Ewert had raised during his transfer from La Macaza. Ms. Desnoyers said CSC wanted to ensure it knew where the medicine bundle was, to allow it to be searched in Mr. Ewert’s presence or in the presence of an Elder, and to return it to Mr. Ewert as quickly as possible. However, the search did not occur in Mr. Ewert’s presence and, as set out below, the medicine bundle was not returned to Mr. Ewert until he was transferred to another institution, almost a month later. Rather, Mr. Ewert’s medicine bundle was searched on July 17, 2019, in Mr. Morris’ office, in the presence of Mr. Morris, Elder Nadon, and Ms. Morin. [31] Mr. Morris, the Correctional Manager who apparently made the decision to search Mr. Ewert’s medicine bundle in his absence, was not called to give evidence at trial. [32] Ms. Morin recalled having assisted in the search of Mr. Ewert’s medicine bundle with Elder Nadon. However, she had limited recollection of the search itself, or of meetings with Mr. Ewert before or after the search. She did recall seeing a cardboard box containing Mr. Ewert’s Indigenous effects, including a ribbon shirt, a drum, rocks, bandanas, and his medicine bundle. She did not recall whether the medicine bundle was tied or not, or whether she or Elder Nadon had to untie it. She said that the search took place by looking at what was inside the pockets of the medicine bundle and advising the Correctional Manager what she and Elder Nadon recognized, did not recognize, what they knew Mr. Ewert could keep, and what should be stored elsewhere. She also had no recollection of what she did with the objects after the search, but relied on her own general practice of always putting objects back the way she found them. [33] Elder Nadon similarly had some recollection of the search, but was unable to recall many details. She did not remember how the objects or the medicine bundle looked in the box when it was first opened. She originally recalled seeing pots of herbs and seeing the headbands in a corner of the box, but subsequently indicated she could not say with certainty and did not recall. She recalled that she was asked to identify the various plants and medicines, but beyond this had little recollection. [34] Neither Ms. Morin nor Elder Nadon recalled raising an issue with Mr. Morris about touching Mr. Ewert’s medicine bundle or searching it in his absence, despite the concerns Mr. Ewert had raised the day before. Based on Elder Nadon’s testimony, it seemed clear that she did not consider it her role to raise such issues or to question decisions by correctional officers regarding searches. In contrast, Ms. Desnoyers testified that in her view, either a Correctional Manager or an Elder could say that an Indigenous inmate should be present for the search. In any event, I conclude that no such concern was raised. The search was conducted without Mr. Ewert and did not reveal any contraband. [35] Mr. Ewert did not see his medicine bundle again until Friday, July 26. No evidence or explanation was given as to why the medicine bundle was not returned to Mr. Ewert immediately after the search. On July 26, Mr. Ewert met with CSC staff who told him his security classification would remain at minimum and discussed transfer options with him. Ms. Morin joined one of these meetings, and Mr. Ewert again asked after his medicine bundle. He was escorted to Mr. Morris’ office and shown his medicine bundle in the presence of Mr. Morris and Ms. Morin. Mr. Ewert’s evidence was that the bundle was in the cardboard box, but its contents were out of their pouches and sitting in the box. Stones and arrowheads, usually wrapped in velvet for protection, were loose in the box. In Mr. Ewert’s words, his medicine bundle was in “the worst disarray [he] had ever seen.” [36] Mr. Ewert was then advised that he could not take the entirety of his bundle back to his cell. Rather, Ms. Morin told him that he could only take a few items with him for the weekend, prior to his anticipated transfer to a new minimum security facility. Mr. Ewert explained that his medicine bundle is a single unit that is not readily subdivided, but he was still told he could only take a few items. He selected some items and returned to his cell. [37] Mr. Ewert was not cross-examined on this evidence, except being asked to confirm that none of the items in his medicine bundle had been chipped or broken. Ms. Morin has no recollection of the events of July 26. As noted above, Mr. Morris was not called to give evidence. Mr. Ewert’s evidence regarding what he saw and the state of his medicine bundle on July 26 was detailed, consistent, straightforward, and stands uncontroverted. I accept his evidence. [38] On Tuesday, July 30, Mr. Ewert was transferred to the minimum security unit at another multi-level facility in Quebec, known as Federal Training Centre (FTC)-6099. Prior to his transfer, he was brought to Mr. Morris’ office to retrieve his medicine bundle. It travelled in the same transport vehicle with him to FTC-6099. Upon arrival, Mr. Ewert met with an Elder, who sat with him while he displayed the contents of the medicine bundle for the Elder’s inspection. Mr. Ewert then packed up the bundle and took it to his new cell. He raises no issues with respect to this search of his medicine bundle. [39] Based on my appreciation of the evidence given by Mr. Ewert, Ms. Desnoyers, Elder Nadon, and Ms. Morin, I conclude that the following occurred between Mr. Ewert’s transfer to Archambault Medium on June 27 and his transfer to FTC-6099 on July 30: (a)Mr. Ewert’s medicine bundle was taken from his cell at Archambault Minimum and placed with other items in a box, brought to Archambault Medium, and placed in the office of Mr. Morris, a Correctional Manager. (b)At some point prior to July 17, the medicine bundle was opened by unknown CSC staff. Only this can account for Ms. Morin seeing rocks and bandanas in the box when it was first opened, and Elder Nadon seeing bandanas, items which Mr. Ewert kept tied up in his medicine bundle. (c)On July 17, the medicine bundle was searched by Elder Nadon and Ms. Morin in Mr. Morris’ office. Mr. Ewert was present at Archambault Medium and could have been brought to the office or another location for the search, but was not. No witness suggested there was any urgency associated with the search. (d)At the conclusion of the search or at some point afterwards, the contents of Mr. Ewert’s medicine bundle were placed in the cardboard box, outside the medicine bundle itself. There is little reason to doubt Elder Nadon and Ms. Morin’s evidence that they believe they treated the items in the medicine bundle with care, and Ms. Morin’s evidence that her practice was to return articles to where she found them. However, whether it was the outcome of the search or something that occurred later, the contents of Mr. Ewert’s medicine bundle were removed from the bundle, removed from pouches and protective fabric, and left loose in the bottom of the cardboard box. This is the only inference that concords with the condition in which Mr. Ewert saw them on July 26, evidence on which he was not contradicted. (e)Mr. Ewert’s medicine bundle was not returned to him after the search. He was not told about the search until July 23, was not taken to see his medicine bundle until July 26, was permitted to only take certain items from it at that time, and his medicine bundle was not returned to him until July 30. [40] The Crown argues I should not draw the inferences referred to above, notably those in paragraphs (b) and (d), based on the direction in article 2849 of the Civil Code of Québec that the Court “shall take only serious, precise and concordant presumptions into consideration.” A “presumption” for this purpose is an inference drawn by the law or the court from a known fact to an unknown fact: Civil Code of Québec, art 2846. I am satisfied that the inferences above in paragraphs (b) and (d) regarding the handling of Mr. Ewert’s bundle meet the requirements of “serious, precise and concordant presumptions”: Benhaim v St-Germain, 2016 SCC 48 at paras 59–60. In particular, the connection between the known facts (the state of the medicine bundle when first seen by, respectively, Ms. Morin, Elder Nadon, and Mr. Ewert) and the unknown facts (how they came to be in that state) is such that the existence of one establishes the other in a clear and obvious manner. In my view, no different or contrary inference is consistent with the known facts, and no contradictory evidence was presented. In this regard, the Crown’s reference to Mr. Ewert’s admission that his arrowheads had not been scratched or damaged is beside the point. The fact that objects had been removed and stones and arrowheads were out of the medicine bundle is in no way contradicted by the fact that the objects were not permanently damaged. [41] I note the Crown argues that article 2849 of the Civil Code of Québec applies by virtue of section 40 of the Canada Evidence Act, RSC 1985, c C-5. Section 40 provides that in proceedings over which Parliament has authority, the applicable laws of evidence are those “in force in the province in which those proceedings are taken” [emphasis added] (in the French version of the statute, “qui sont en vigueur dans la province où ces procédures sont exercées” [emphasis added]). [42] Having reviewed the limited jurisprudence on the application of section 40 of the Canada Evidence Act to proceedings in this Court, there is in my view some uncertainty as to whether these proceedings “are taken” in Quebec. In various cases, federal courts have referred to the location of commencement, pursuance, and/or trial as being where proceedings are “taken”: see, e.g., Anderson v Canada (Attorney General), 1997 CanLII 17645 (FC); Desroches v The Queen, 2013 TCC 81 at para 33; Canada (Citizenship and Immigration) v Halindintwali, 2015 FC 390 at para 96; Tepper v Canada (Attorney General), 2020 FC 1046 at para 2; Porto Seguro Companhia de Seguros Gerais v Belcan SA, [1996] 2 FC 751 (CA) at para 8, rev’d on other grounds, [1997] 3 SCR 1278; South Yukon Forest Corporation v Canada, 2010 FC 495 at paras 1–4, 40–41, rev’d on other grounds, 2012 FCA 165, leave to appeal ref’d, 2012 CanLII 76981 (SCC). [43] In the present case, the action was commenced in Vancouver, the causes of action arose in Quebec, and the trial was held at a sitting of the Court in Montreal (by videoconference), with the parties in Quebec. I question whether the applicable rules of evidence should be determined solely by the location of the Registry Office where the originating document was issued. In the present case, I am satisfied that the laws of evidence of Quebec should apply, as proposed by the Minister, while noting that none of my conclusions would differ if the British Columbia laws of evidence applied. [44] Having reviewed the factual nature of the search, I turn to Mr. Ewert’s Charter claims. (4) Section 2(a) of the Charter [45] As set out above, Mr. Ewert alleges that the search of his medicine bundle infringed his rights and freedoms under sections 2, 7, 8, 12, and 15 of the Charter. The parties focused most of their arguments on section 2(a) of the Charter. For the reasons expressed below, I conclude that section 2(a) is the most directly implicated Charter right. Since the factual matrix underpinning each of the Charter claims is the same, and since I find section 2(a) has been infringed, I will follow the approach of the Supreme Court of Canada in Trinity Western and focus my discussion on that provision: Law Society of British Columbia v Trinity Western University, 2018 SCC 32 at paras 76–78. [46] Section 2(a) of the Charter guarantees “freedom of conscience and religion” as a fundamental freedom. An infringement of section 2(a) is made out where (1) the claimant sincerely believes in a belief or practice that has a nexus with religion; and (2) the impugned measure interferes with the claimant’s ability to act in accordance with their religious beliefs in a manner that is more than trivial or insubstantial: Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para 32, citing Syndicat Northcrest v Amselem, 2004 SCC 47 and Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6; Trinity Western at para 63. If there has been such an infringement, the question becomes whether the limit is a reasonable one, prescribed by law and demonstrably justified in a free and democratic society: Charter, s 1; Hutterian Brethren at para 34; Loyola High School v Quebec (Attorney General), 2015 SCC 12 at para 39. (a) Mr. Ewert’s sincere beliefs have a nexus with religion [47] The Crown does not challenge the sincerity of Mr. Ewert’s beliefs and practices with respect to his medicine bundle, nor their nexus with religion. I am satisfied that the evidence, including Mr. Ewert’s testimony, establishes that he sincerely believes that his medicine bundle is a pure and sacred object; that it has assisted him in his healing, recovery, and sobriety; that it is to be kept in his possession; that he should be the only person who touches his medicine bundle; and that it is desecrated if anyone other than him touches it, particularly, but not exclusively, if that person has consumed drugs or alcohol, or is “on their moon time” (menstruating); and that it is to be kept together and not subdivided. Given the connection between these beliefs and Mr. Ewert’s spiritual faith, I am satisfied that his beliefs have a nexus with religion: Amselem at para 56. (b) The treatment of Mr. Ewert’s medicine bundle was a non-trivial interference [48] In my view, Mr. Ewert has established that the search of his medicine bundle constituted a non-trivial interference with his ability to act in accordance with his religious beliefs. The assessment of what constitutes a non-trivial interference is context-dependent: Amselem at para 60. In the present case, Mr. Ewert’s medicine bundle was kept out of his possession for a period of almost one month, preventing him from practising his beliefs through the use and possession of his medicine bundle. It was also searched in a manner that involved others touching the medicine bundle and its contents, an act that Mr. Ewert sincerely believes to be an act of desecration. He was then permitted to only take certain items from his medicine bundle, rather than the entire bundle, although the search had not revealed any items he was prohibited from having in his cell. In the context of Mr. Ewert’s evidence regarding the importance of his medicine bundle, his relationship to it, and its relationship to his spiritual and traditional beliefs, these are non-trivial matters. [49] I note that the interference with Mr. Ewert’s religious freedoms was not simply an accidental or unknowing one. The evidence clearly establishes that CSC was well aware of the spiritual importance and sacredness of medicine bundles generally, and of Mr. Ewert’s beliefs regarding his medicine bundle in particular. Indeed, Mr. Ewert specifically raised his concern that no-one else should touch his medicine bundle with Elder Nadon and Ms. Morin the day before the search. Although both were then asked to, and did, participate in the search, neither raised any concerns with the Correctional Manager, Mr. Morris. [50] It is worth highlighting one other aspect of Elder Nadon’s evidence on this point. Elder Nadon knew of Mr. Ewert’s belief that no-one else should touch his medicine bundle, and agreed this belief was consistent with her own knowledge of traditional beliefs regarding sacred objects, such as her own eagle feather. However, Elder Nadon considered it necessary to clarify that her responses related to her understanding with respect to matters outside a penitentiary, and that within a penitentiary, it was [translation] “completely different.” This then led to the following responses to questions from Mr. Ewert: Q: So, Mme Nadon, you were just telling the Court that your discussion about someone touching your feather, you were referring to what happens outside a prison, and not what happens inside a prison, correct? A: [translation] Correct. Q: And so, are you saying that if somebody touched your feather inside a prison, without your permission, that would be okay? A: [translation] There is a big difference, Mr. Ewert, between you and me. I am an Elder, you are an inmate. So the policies are not the same. Unfortunately, if the inmate cannot be present, the Elder and her [Indigenous Liaison Officer] have the right to conduct searches without the presence of the inmate. We spoke about that at the beginning. So, and I, what I can assure you is that all that I did was with respect for your beliefs and your items. [Emphasis added.] [51] Elder Nadon’s statements regarding the differences between inmates and non-inmates appear to pertain to CSC search policies, and to section 10 of CD 566-7 in particular, and not to the impact of touching a person’s medicine bundle from a religious or spiritual perspective. I address the question of CSC policies below in considering justification under section 1 of the Charter. However, to the extent that Elder Nadon may have been suggesting that what constitutes an interference with a religious belief is different for an inmate and a non-inmate, I cannot agree. As Justice Norris of this Court recently affirmed, “correctional institutions are not Charter-free zones”: Richards v Canada, 2022 FC 1763 at para 273; see also R v Joseph, 2014 ONCJ 559 at para 38, citing R v Taylor, 2014 SCC 50 at para 34. While the institutional setting is relevant to the question of justification, it does not prevent CSC’s actions from constituting an interference with Mr. Ewert’s freedom of religion. I also note that I agree with Mr. Ewert that given his beliefs only he should touch his medicine bundle, Elder Nadon’s assertion that she handled his medicine bundle and conducted the search [translation] “with respect” for his beliefs is difficult to reconcile. She may have handled his medicine bundle with care, but doing so without raising his concerns about who touched the bundle, or suggesting that he be present to handle it himself, showed little respect for his beliefs. [52] Similarly, Mr. Ewert was required to separate his bundle despite his express advice that this was contrary to his practices. In this regard, I agree with the views of Ms. Angus, who gave the following response to Mr. Ewert’s question as to whether it was appropriate to ask an Indigenous inmate to take his medicine bundle apart piecemeal: I believe it’s appropriate. At the end […] of the day, if it’s not something that culturally makes sense to the person being asked, then that can be shared. But from the start, knowing that we come from various traditions, and that we are open to the differences, and that we can […] ask out of good faith. And I think that it’s fair that somebody did ask that in the spirit of reassuring or in the spirit of ensuring that you had access to your medicine. Now, whether or not this [taking it apart] was something that you felt was appropriate or not [in] receiving it, in the sense that if it’s not something that you usually do, then it’s okay to state it. [Emphasis added.] [53] In the present case, Mr. Ewert was asked to take some objects from his bundle. He expressed that he did not consider it appropriate to subdivide the bundle. Nonetheless, this expression of his religious practices was ignored and he was required to separate his bundle. This constituted a further infringement of his religious freedoms. [54] In closing submissions, the Crown did not argue that the detention, search, and retention of Mr. Ewert’s medicine bundle was not an interference with his ability to act in accordance with his beliefs, or that any such interference was trivial or insubstantial. Nor did the Crown argue tha

Ewert v. Canada

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Ewert v. Canada

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