Federal Court

Constitutional Law

Use of psychological risk assessment tools violated Aboriginal offender’s rights under s. 7 of Charter

Plaintiff was 53-year-old Aboriginal offender. Plaintiff was adopted by Caucasian family when he was six months old. Plaintiff was serving two life sentences for second degree murder and attempted murder, and was sentenced to 15 months’ imprisonment to be served concurrently for escape from lawful custody conviction. Plaintiff spent 30 years in federal correctional facilities. Plaintiff was eligible for full parole since 1999 but never had parole hearing. Commissioner of Correctional Services Canada used psychological risk assessment tools (“actuarial tests”) during plaintiff’s incarceration. Plaintiff waived his right to each parole hearing alleging he was unlikely to be granted parole because he was assessed as too great risk of reoffending in part due to results of actuarial tests. Actuarial tests were alleged to be unreliable in regard to Aboriginal prisoners and use of such tests resulted in significant adverse impact on plaintiff. Plaintiff asserted use of assessment tools violated his rights under s. 7 of Canadian Charter of Rights and Freedoms. Action allowed. Court intended to issue final order enjoining use of assessment tools in respect of plaintiff and other Aboriginal inmates until defendant conducted study confirming reliability of those tools in respect to adult Aboriginal offenders. In interim, defendant was enjoined from using results of assessment tools in regard to plaintiff. Use of assessment tools violated plaintiff’s rights under s. 7 of Charter without justification under s. 1. Continued use of assessment tools was overbroad of purpose and objective of the legislation and of CSC’s decision making responsibilities. Assessment tools were used without qualification or caution despite long-standing concerns about their reliability.

Ewert v. Canada (Sep. 18, 2015, F.C., Michael L. Phelan J., File No. T-1350-05) 258 A.C.W.S. (3d) 320.

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