[2017] 2 F.C.R. D-2
Penitentiaries
Appeal from Federal Court (F.C.) decision (2015 FC 1093) finding use of assessment tools by Correctional Service of Canada (CSC) to assess risk of criminal recidivism, psychopathy contrary to Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 4(g), 24(1), violating Canadian Charter of Rights and Freedoms, s. 7 when used in respect of Aboriginal inmates — Respondent alleging, inter alia, assessment tools unreliable, generating false results, conclusions — Whether F.C. erring in finding appellant breached statutory obligation imposed by Act, s. 24(1), violated respondent’s Charter, s. 7 liberty and security interests — F.C. citing no authority for proposition that respondent not required “to establish definitively” that assessment tools biased — Respondent bearing burden of establishing these facts on balance of probabilities — F.C. erred in law when requiring that respondent establish only reasonable challenge to reliability of results, conclusions — In absence of evidence, respondent failing to establish that assessment tools generating false results, conclusions; that CSC breaching statutory duty — This conclusion consistent with F.C. reasons wherein F.C. expressing intent to issue final order enjoining use of assessment tools in respect of respondent, other Aboriginal inmates until, at minimum, appellant conducting study to confirm reliability of assessment tools — F.C. should have dismissed respondent’s action — Could not grant remedy it did on basis of an unequivocal evidentiary record — F.C. erred by failing to conclude that respondent failed to establish violation of s. 7 rights on balance of probabilities — Appeal allowed.
Canada v. Ewert (A-421-15, 2016 FCA 203, Dawson J.A., reasons for judgment dated August 3, 2016, 15 pp).