Defendant Correctional Service of Canada (CSC) used certain psychological tests or assessment tools to assess risk of criminal recidivism and psychopathy in inmates, which impacted institutional decisions such as those relating to parole eligibility and security classifications. Plaintiff Aboriginal inmate brought action against CSC and wardens of institutions, alleging that assessment tools were unreliable when administered to Aboriginal inmates such that their use breached his rights, including under ss. 7 and 15 of Canadian Charter of Rights and Freedoms. Action was allowed on basis that CSC’s use of assessment tools breached s. 7 of Charter and s. 24(1) of Corrections and Conditional Release Act (Can.), with issuance of interim relief while remedy hearing was set to determine terms of final order. Defendants appealed. Appeal allowed. Trial judge did not expressly consider whether plaintiff established on balance of probabilities that scores and conclusions generated by assessment tools were inaccurate and unreliable when assessment tools were administered to Aboriginal persons. Trial judge relied on expert testimony that there was no evidence that scores and conclusions predicted recidivism in Aboriginal offenders as accurately as they did when administered to non-Aboriginal offenders. By relying on absence of evidence proving reliability of assessment tools, trial judge erred in law by failing to require plaintiff to establish his claim on balance of probabilities. Expert evidence was, as matter of law, insufficient to establish that assessment tools generated results that were inaccurate or unreliable in material way. Trial judge erred by failing to conclude that plaintiff failed to establish violation of his rights under s. 7 of Charter on balance of probabilities.
Canada (Commissioner of Correctional Service) v. Ewert (Aug. 3, 2016, F.C.A., Marc Nadon J.A., Eleanor R. Dawson J.A., and Wyman W. Webb J.A., A-421-15) Decision at 258 A.C.W.S. (3d) 320 was reversed. 269 A.C.W.S. (3d) 686.