Ewert v. Canada, 2018 SCC 30 – Prisons — Inmates — Indigenous offenders

On appeal from a judgment of the Federal Court of Appeal (2016 FCA 203) setting aside a decision of Phelan J. (2015 FC 1093).

E, who identifies as Métis, is currently serving two concurrent life sentences. He has spent over 30 years in federal custody, in medium and maximum security settings. E challenged the use of five psychological and actuarial risk assessment tools used by the Correctional Service of Canada (“CSC”) to assess an offender’s psychopathy and risk of recidivism, on the basis that they were developed and tested on predominantly non‑Indigenous populations and that no research confirmed that they were valid when applied to Indigenous persons. He claimed, therefore, that reliance on these tools in respect of Indigenous offenders breached s. 24(1) of the Corrections and Conditional Release Act (“CCRA”), which requires the CSC to “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”, as well as ss. 7 and 15 of the Charter. The trial judge agreed that, by relying on these tools despite long‑standing concerns about their application to Indigenous offenders, the CSC breached its obligation under s. 24(1) of the CCRA and infringed E’s rights under s. 7 of the Charter. The Federal Court of Appeal overturned both of these findings.

Held (7-2):The appeal should be allowed in part. The CSC breached its obligation set out in s. 24(1) of the CCRA.

Per McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Brown JJ.:

In continuing to rely on the impugned tools without ensuring that they are valid when applied to Indigenous offenders, the CSC breached its obligation under s. 24(1) of the CCRA to take all reasonable steps to ensure that any information about an offender that it uses is as accurate as possible. However, the CSC’s reliance on the results generated by the impugned tools does not constitute an infringement of E’s rights under s. 7 or s. 15 of the Charter.

The inquiry into whether the CSC met its obligation under s. 24(1) of the CCRA gives rise to two main questions. The first is whether results generated by the impugned tools are a type of information to which s. 24(1) applies. Reading the words of s. 24(1) in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and objects of the CCRA, the obligation in s. 24(1) applies to results generated by the impugned tools. In the ordinary sense of the words in s. 24(1), the knowledge derived from the impugned tools by the CSC is information about an offender.

This interpretation is supported by the relevant statutory context. Sections 23 through 27 of the CCRA deal with different aspects of the CSC’s collection, use and dissemination of different types of information. When they are read together, it is clear that where Parliament intended a particular provision to apply to only certain types of information, it enumerated them or otherwise qualified the scope of the information. This reinforces the conclusion that the obligation in s. 24(1), which applies to any information, was intended to have broad application. The context of these other provisions also confirms that the broad scope of s. 24(1) is not limited by the narrower scope of s. 24(2). Furthermore, the legislative scheme within which the CSC operates and the CSC’s practice based on the scheme contemplate that the CSC will use the results generated by the tools in making important decisions about offenders, and CSC policy requires its use in certain circumstances. This favours applying the obligation in s. 24(1) to this information.

In addition, the statutory purpose of the correctional system supports this interpretation. Accurate information about an offender’s psychological needs and the risk he or she poses is crucial to achieving the system’s purpose of contributing to the maintenance of a just, peaceful and safe society by carrying out sentences through safe and humane custody of inmates and assisting in their rehabilitation and reintegration into the community. Interpreting s. 24(1) as applying to a broad range of information is also consistent with the paramount consideration for the CSC: the protection of society may be undermined if inaccurate tests are applied and risk is underestimated. The nature of the information derived from the impugned tools provides further support for this interpretation: these tools are considered useful because the information from them can be scientifically validated; therefore, it should be accurate. As a result, the CSC’s statutory obligation at s. 24(1) applies to results generated by the impugned assessment tools.

The second question to be addressed is whether the CSC breached its obligation, and more specifically, whether it failed to take all reasonable steps to ensure that the impugned tools produce accurate information when applied to Indigenous persons. Section 24(1) requires that the CSC take all reasonable steps to ensure the accuracy of information about an offender that it uses, not all possible steps. What constitutes all reasonable steps will vary with the context. In this case, the trial judge’s conclusion that the CSC failed to take the reasonable steps required is amply supported by the record. The CSC had long been aware of concerns regarding the possibility of these tools exhibiting cultural bias yet took no action to confirm their validity and continued to use them in respect of Indigenous offenders, despite the fact that research would have been feasible. In doing so, the CSC did not meet the legislated standard set out in s. 24(1). This conclusion is supported by the interpretation and application of the guiding principle set out in s. 4(g) of the CCRA. This principle requires that correctional policies, programs and practices must respect gender, ethnic, cultural and linguistic differences and must be responsive to the special needs of equity‑seeking groups, and in particular Indigenous persons. Section 4(g) represents an acknowledgement of the systemic discrimination faced by Indigenous persons in the Canadian correctional system. It is evident from the grammatical and ordinary sense of the words of s. 4(g) and the legislative history of the CCRA that s. 4(g) should be understood as a direction from Parliament to the CSC to advance substantive equality in correctional outcomes for Indigenous offenders. It is critical that the CSC give this direction meaningful effect. In the context of the present case, this means, at a minimum, addressing the long‑standing, and credible, concern that continuing to use the impugned tools in evaluating Indigenous inmates perpetuates discrimination and disparity in correctional outcomes between Indigenous and non‑Indigenous offenders. The CSC must ensure that its policies and programs are appropriate for Indigenous offenders and responsive to their needs and circumstances. For the correctional system to operate fairly and effectively, the assumption that all offenders can be treated fairly by being treated the same way must be abandoned. The CSC’s inaction with respect to the concerns raised about the impugned tools fell short of what s. 24(1) required it to do.

In the circumstances of this case, it is appropriate to issue a declaration that the CSC has failed to meet its obligation under s. 24(1) of the CCRA. A court may, in its discretion, grant a declaration where it has jurisdiction to hear the issue, where the dispute is real and not theoretical, where the party raising the issue has a genuine interest in its resolution, and where the respondent has an interest in opposing the declaration sought. These criteria are met. Although a declaration is an exceptional and discretionary remedy which should normally be declined where there exists an adequate alternative statutory mechanism to resolve the dispute or to protect the rights in question, the statutory grievance mechanism that may be available to E has not been effective and he should not be required to begin the grievance process anew.

E has not established an infringement of his rights under s. 7 of the Charter. To establish that the CSC’s reliance on the impugned tools violated the principle of fundamental justice against arbitrariness or that against overbreadth, E had to show on a balance of probabilities that the CSC’s practice of using the impugned tools with respect to Indigenous offenders had no rational connection to the government objective. He has not done so: there was no evidence before the trial judge that how the impugned tools operate in the case of Indigenous offenders is likely to be so different from how they operate in the case of non‑Indigenous offenders that their use in respect of the former is completely unrelated to the government objective. E also failed to meet his onus of establishing that a new principle of fundamental justice — that the state must obey the law — should be found to exist. Similarly, E has not established the infringement of his rights under s. 15 of the Charter that he alleged. The trial judge could not have found, on the evidence before him, that the impugned tools overestimate the risk posed by Indigenous inmates or lead to harsher conditions of incarceration or to the denial of rehabilitative opportunities because of such an overestimation. His conclusion should not be disturbed.

Per Côté and Rowe JJ. (dissenting in part):

There is agreement with the majority with respect to E’s ss. 7 and 15 Charter claims. However, there is disagreement that s. 24(1) of the CCRA imposes an obligation on the CSC to conduct research as to the validity of the impugned tools. Although it is important to address Indigenous overrepresentation in prison, and there is concern with the CSC’s inaction with respect to the issue raised by E, it was not Parliament’s intent to hold the CSC to account on this issue pursuant to s. 24(1). The scope of the obligation in s. 24(1), as applied to the impugned tools, simply requires that the CSC maintain accurate records of the inmates’ test scores. Interpreted in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and the object of the CCRA and the intention of Parliament, the words of s. 24(1) refer to biographical or factual information about an offender, such as age, criminal record, behaviour in prison, or courses taken with a view to rehabilitation, that should be accurate, up to date, and complete. The scheme that is set out in ss. 23 and 24 is straightforward: s. 23 lists information that is to be recorded, s. 24(1) requires the CSC to record this information accurately and to keep it up to date, and s. 24(2) provides a means for an inmate to correct errors or deficiencies. The CCRA’s goals of managing the custody of offenders, assisting in their rehabilitation and reintegration, and protecting society require good decision‑making based on accurate information. Section 24 relates to the accuracy of information, thus it serves an important function. However, that function does not include verifying the validity of the impugned tools. Rather, the scheme reflects Parliament’s intent to provide offenders with a specific remedy to make sure that the CSC’s duty to maintain accurate records is met. The word “information” in ss. 24(1) and 24(2), consecutive subsections of the same provision, should be given the same meaning. These provisions are about accurate record‑keeping, not about challenging the means that the CSC uses to make its decisions. When an offender’s complaint is about the way that a particular decision is made, the CCRA provides a means for offenders to file a grievance and if necessary, pursue judicial review.

There is also disagreement with the majority as to the remedy. A declaration should not be granted, even in the exceptional circumstances of this case. The proper remedy for breach of statutory duty by a public authority is judicial review for invalidity. Allowing inmates to apply for a declaration would effectively bypass the ordinary process of judicial review and thus fail to accord the deference typically shown to administrative decision makers. This could open the door to undue interference with the discharge of administrative functions in respect of matters delegated to administrative bodies. It is unwise to depart from settled legal principles, even on the facts of this case. The appeal should be dismissed.

Reasons for judgment: Wagner J. (McLachlin C.J. and Abella, Moldaver, Karakatsanis, Gascon and Brown JJ. concurring)

Reasons Dissenting in Part: Rowe J. (Côté J. concurring)

Neutral Citation: 2018 SCC 30

Docket Number: 37233