Ewert v. Canada (Attorney General) et al., 2016 FCA 203

• Judge: Nadon, Dawson and Webb, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: August 03, 2016
• Jurisdiction: Canada (Federal)
• Citations: 2016 FCA 203;(2016), 487 N.R. 107 (FCA)

Ewert v. Can. (A.G.) (2016), 487 N.R. 107 (FCA)

MLB headnote and full text

Temp. Cite: [2016] N.R. TBEd. AU.007

Her Majesty the Queen in Right of Canada (The Commissioner of the Correctional Service of Canada, The Warden of Kent Institution and the Warden of Mission Institution) (appellant) v. Jeffrey G. Ewert (respondent)

(A-421-15; 2016 FCA 203)

Indexed As: Ewert v. Canada (Attorney General) et al.

Federal Court of Appeal

Nadon, Dawson and Webb, JJ.A.

August 3, 2016.

Summary:

The Correctional Service of Canada employed certain psychological tests, referred to as assessment tools or actuarial tests, to assess the risk of criminal recidivism and to assess psychopathy in inmates. Ewert commenced an action alleging that the assessment tools were unreliable when administered to Aboriginal inmates such as himself and that, in the result, their use violated rights protected by ss. 7 and 15 of the Charter. He sought injunctive and declaratory relief.

The Federal Court, in a decision reported at [2015] F.T.R. TBEd. SE.066, found that the use of the assessment tools in respect of Aboriginal inmates was contrary to ss. 4(g) and 24(1) of the Corrections and Conditional Release Act, and also violated s. 7 of the Charter in a manner that could not be justified. The court found it unnecessary to consider the application of s. 15 of the Charter. The court stated its intent "to issue a final order enjoining the use of the assessment tools in respect of the Plaintiff and other Aboriginal inmates until, at minimum, the Defendant conducts or has conducted a study that confirms the reliability of those tools in respect to adult Aboriginal offenders". The court issued an interim order that: i. enjoined the defendant from using results obtained from the use of five specified assessment tools in respect of Ewert; and, ii. required the parties to "file written briefs in respect of the type, methodology and other relevant matters in respect of the study to be conducted to assess the reliability of these psychological tests in respect to adult Aboriginal offenders". The defendant appealed.

The Federal Court of Appeal held that the Federal Court erred in law in finding that Ewert had established both a breach of the Act and a violation of s. 7 of the Charter. The court allowed the appeal and dismissed Ewert's action.

Civil Rights - Topic 646

Liberty - Limitations on - Prisoners and imprisonment - [See Civil Rights - Topic 1370.6 ].

Civil Rights - Topic 1370.6

Security of the person - Inmates and prisoners - Assessment tools - The Correctional Service of Canada employed certain psychological tests, referred to as assessment tools or actuarial tests, to assess the risk of criminal recidivism and to assess psychopathy in inmates - Ewert commenced an action alleging that the assessment tools were unreliable when administered to Aboriginal inmates such as himself and that, in the result, their use violated rights protected by ss. 7 and 15 of the Charter - The Federal Court found, inter alia, that the use of the assessment tools in respect of Aboriginal inmates violated s. 7 of the Charter in a manner that could not be justified - The Federal Court of Appeal allowed an appeal - The Federal Court erred in finding that the defendant violated Ewert's liberty and security interests contrary to s. 7 of the Charter - By relying on the absence of evidence proving the reliability of the assessment tools, the Federal Court erred in law by failing to require Ewert to establish his claim on a balance of probabilities - The expert evidence was insufficient to establish on a balance of probabilities that the assessment tools generated results that were inaccurate or unreliable in a material way - It followed that the Federal Court erred by failing to conclude that Ewert had failed to establish a violation of his s. 7 rights on a balance of probabilities - Ewert argued that, notwithstanding the Federal Court's assessment that the evidence was not sufficiently developed to allow for the analysis mandated by s. 15 of the Charter, the remedy granted by the Federal Court could be supported under s. 15 of the Charter - However, the court saw no error in the Federal Court's characterization of the sufficiency of the evidence - Ewert failed to establish that the use of the assessment tools generated false results and conclusions when administered to Aboriginal persons - In consequence, his claim under s. 15 of the Charter could not succeed - See paragraphs 29 to 34.

Civil Rights - Topic 5646

Equality rights - Particular cases - Indians and Métis - [See Civil Rights - Topic 1370.6 ].

Civil Rights - Topic 5660.1

Equality and protection of the law - Particular cases - Prisoners - [See Civil Rights - Topic 1370.6 ].

Civil Rights - Topic 8364

Canadian Charter of Rights and Freedoms - Denial of rights - Burden of proof - [See Civil Rights - Topic 1370.6 ].

Prisons - Topic 1008

Administration - General - Prisoner's record (incl. rectifying and inaccurate information) - [See Prisons - Topic 1027.1 ].

Prisons - Topic 1027.1

Administration - Powers re prisoners - Risk assessment - The Correctional Service of Canada employed certain psychological tests, referred to as assessment tools or actuarial tests, to assess the risk of criminal recidivism and to assess psychopathy in inmates - Ewert commenced an action alleging that the assessment tools were unreliable when administered to Aboriginal inmates such as himself and that their use violated rights protected by ss. 7 and 15 of the Charter - The Federal Court found, inter alia, that the use of the assessment tools in respect of Aboriginal inmates was contrary to s. 24(1) of the Corrections and Conditional Release Act , which stated that "The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible" - The Federal Court of Appeal allowed an appeal - The Federal Court erred in finding that the defendant breached the statutory obligation imposed by s. 24(1) of the Act - Ewert alleged that the assessment tools "generate false results and false conclusions when used on Aboriginal persons" - Ewert bore the burden of establishing those facts on a balance of probabilities - The Federal Court erred in law when it required that Ewert establish only a reasonable challenge to the reliability of the results and conclusions generated by the use of the assessment tools in respect of Aboriginal persons - In the absence of evidence demonstrating that cultural bias affected or was more likely than not to affect test usage or the reliability and validity of the resulting test scores in a material way, Ewert failed to establish on a balance of probabilities that the assessment tools generated or were likely to generate false results and conclusions and failed to establish on a balance of probabilities any breach of statutory duty on the part of the Correctional Service - See paragraphs 12 to 28.

Counsel:

Banafsheh Sokhansanj, Nicholas Claridge and Liliane Bantourakis, for the appellant;

Jason Gratl and Eric Purtzki, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Vancouver, British Columbia, for the appellant;

Gratl & Company, Vancouver, British Columbia, for the respondent.

This appeal was heard on June 13, 2016, at Vancouver, British Columbia, before Nadon, Dawson and Webb, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Dawson, J.A, on August 3, 2016.