[2016] 1 F.C.R. D-4
Penitentiaries
Claim for relief in respect of Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 15 for actions of Commissioner of Correctional Service of Canada (CSC) in using various psychological risk assessment tools (actuarial tests) during plaintiff’s incarceration — Plaintiff alleging actuarial tests used by CSC unreliable in regard to Aboriginal prisoners, adversely impacting plaintiff — Plaintiff, Aboriginal offender, serving, inter alia, two life sentences — Serving sentences in maximum or medium security institutions — Issue of validity of tests impacting plaintiff, other Aboriginal prisoners — Assessment tools consisting in several psychological tests, some of which CSC using to assess risk of violence in Aboriginal inmates — Plaintiff establishing that assessment tools, actuarial tests susceptible to cultural bias; therefore unreliable — Further establishing that tests in fact used in making decisions, constituting contributing factor in decisions adversely impacting plaintiff’s incarceration — Whether CSC breaching statutory duty in present case; whether Charter, ss. 7, 15 breached — Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 4(g), 24 relevant, critical in present case — Act, s. 24(1) providing that CSC must take all reasonable steps to ensure any information about offender used must be as accurate, up-to-date, complete as possible — In relying upon questionable tests, in failing to ensure reliability of tests, CSC not taking “all reasonable steps” to ensure that information about plaintiff as accurate, up-to-date, complete as possible — CSC’s lack of action insufficient to fulfill legislated standard of all reasonable steps to ensure accuracy, currency, completeness, particularly in face of plaintiff’s challenge — Therefore, CSC failing to meet statutory obligation under Act, s. 24(1) — Charter, s. 7 violation established herein: (1) liberty, security of person engaged; (2) deprivation thereof not in accordance with principles of fundamental justice — Continued use of assessment tools overbroad, arbitrary — Charter, s. 1 justification not established — In conclusion, use of assessment tools inconsistent with principles in Act, s. 4(g) by not being responsive to special needs of Aboriginal people; such use violation of plaintiff’s Charter, s. 7 rights — Order issued enjoining use of assessment tools in respect of plaintiff, other Aboriginal inmates.
Ewert v. Canada (T-1350-05, 2015 FC 1093, Phelan J., judgment dated September 18, 2015, 34 pp.)