Correctional Services breaching obligations by relying on tools without confirming validity when applied to Indigenous persons

Supreme court | Aboriginal Law | Constitutional issues | Fiduciary duty of Crown

Appellant offender was convicted of murder and attempted murder in two separate incidents in 1984. At trial, E, who is Metis, challenged use of five psychological and actuarial risk assessment tools. E 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. E claimed that while he has been incarcerated, Correctional Services of Canada (“CSC”) has relied on these tools in conducting needs and risk assessments on him. Federal Court trial judge concluded that, by relying on these tools despite long-standing concerns about their application to Indigenous offenders, CSC had breached its obligation under s. 24(1) of Corrections and Conditional Release Act (“CCRA”) and had unjustifiably infringed E’s rights under s. 7 of Canadian Charter of Rights and Freedoms. Trial judge ordered interim injunction that prohibited CSC from using results generated by impugned tools with respect to E. Federal Court of Appeal overturned both of these findings. E appealed. Appeal allowed in part. Under s. 24(1) of CCRA, CSC shall take all reasonable steps to ensure that any information about offender that it uses is as accurate, up to date and complete as possible. In light of words, context and purpose of s. 24(1) of CCRA, results generated by impugned tools are “information” within meaning of that provision. Section 4(g) of CCRA represents acknowledgement of systemic discrimination faced by Indigenous persons in Canadian correctional system. Giving it meaningful effect includes addressing long-standing, and credible, concern that continuing to use impugned risk assessments in evaluating Indigenous inmates perpetuates discrimination and contributes to disparity in correctional outcomes between Indigenous and non-Indigenous offenders. Fact that s. 4(g) was intended to remedy troubled relationship between Canada’s criminal justice system and its Indigenous peoples informs its interpretation. E granted declaration that CSC breached its obligation set out in s. 24(1) of CCRA.

Ewert v. Canada (2018), 2018 CarswellNat 2804, 2018 CarswellNat 2805, 2018 SCC 30, 2018 CSC 30, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellNat 3417, 2016 CarswellNat 9943, 2016 FCA 203, 2016 CAF 203, Marc Nadon J.A., Eleanor R. Dawson J.A., and Wyman W. Webb J.A. (F.C.A.).

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

OBA Innovator-in-Residence Colin Lachance aims to help lawyers integrate AI into their practice

Ontario Superior Court rejects mining company’s breach of agreement and confidentiality claims

Ontario Superior Court orders plaintiff to pay substantial costs despite injury claims

Labour and employment lawyer Muneeza Sheikh opens her practice as part of 'building a brand'

Ontario Superior Court awards damages in domestic assault case due to defendant's default

Ontario Privacy Commissioner calls for stronger access and privacy protections

Most Read Articles

Labour and employment lawyer Muneeza Sheikh opens her practice as part of 'building a brand'

Ontario Superior Court awards damages in domestic assault case due to defendant's default

Ont. Superior Court upholds Human Rights Tribunal's denial of reconsideration in discrimination case

Ontario Privacy Commissioner calls for stronger access and privacy protections