Ewert v. Canada

Aboriginal inmates – Assessment tools – Cultural bias – Actuarial tests – Charter of Rights and Freedoms – Section 7 – Life, liberty and security of the person

The Federal Court released a decision on September 18, 2015 in Ewert v. Canada (Correctional Services), allowing an action against Correctional Services Canada for an unjustified violation of the plaintiff’s section 7 right to life, liberty and security of the person under the Canadian Charter of Rights and Freedoms.

Background

The plaintiff is a 53 year old Métis prisoner named Jeffrey Ewert. Ewert alleged that the psychological risk assessment tools used by Correctional Services Canada weren't culturally appropriate for Aboriginal prisoners. Further, Ewert argued that these tests had an adverse impact on him. Ewert originally brought this claim against the Commissioner of Correctional Services Canada for damages based on section 12 of the Charter (the right not to be subjected to any cruel and unusual treatment or punishment). However, the claim was later amended so as to proceed under section 7 of the Charter. Ewert brought this claim on his own behalf and on behalf of all Aboriginal prisoners in Canada.

Impugned Psychological Assessment Tools

There are five psychological assessment tests at issue in this case. These tests are ostensibly designed to assess the risk of violent and sexual recidivism (i.e. the tendency to relapse into a certain mode of behaviour) as well as psychopathy among prisoners. The tests are applied to Aboriginal and non-Aboriginal inmates alike.

Importance of the tests

The Court found that the results of the tests are significant to the experience of prisoners in the penal system. The results contribute to the individual security ratings of inmates. The results can also influence whether inmates will be allowed Escorted Temporary Absences from prison. Finally, the test scores can be included in the assessment for parole.

The Court found that Ewert’s scores were used in a report prepared for his parole that labelled him an “undue risk to society.” Ewert alleged that the results of the tests would render him unlikely to be granted parole in future hearings. For this reason, Ewert consistently opted out of parole hearings.

Plaintiff's witness

Dr. Stephen Hart was called upon to act as the expert witness for the Plaintiff. Hart provided evidence to demonstrate that the impugned assessment tests are susceptible to various forms of cultural bias. Hart argued that he would not use the scores of the assessment tests of Aboriginal inmates because of the cultural differences between Aboriginal and non-Aboriginal groups in Canada. Overall, the Court found Hart’s evidence to be persuasive. The Court noted in particular Hart’s objectivity and balanced approach to the issues.

Defendant's witnesses

The main witness for the defendant was Dr. Rice. Rice is a clinical psychologist and professor of psychology. The Court found Rice’s evidence to be problematic for several reasons. Primarily, the Court was concerned that Rice presented an uncompromising view in support of the accuracy of the assessment tools. Rice supported her views in large part by referencing a study that had few Aboriginal participants. Rice also failed to disclose that she was one of the authors of the manuals for two of the psychological assessment tools.

Federal Court’s Decision

The Court relied heavily on the evidence presented by the plaintiff’s expert witness Dr. Hart. The evidence presented by the defendant’s expert witness, Dr. Rice, was generally disregarded. Based on the weight of the evidence, the Court determined that Ewert was successful in proving that the assessment tests were unreliable due their susceptibility of cultural bias. Furthermore, the Court found that the results of the tests negatively impacted Ewert by increasing his security classification and reducing his desire to apply for parole.

Ewert originally asserted that the use of the unreliable assessment tests was a breach of not only the Charter but also the Crown’s fiduciary duty to Aboriginal peoples. The Court stated that while the Crown has a fiduciary relationship with Aboriginal peoples, a fiduciary duty to Aboriginal individuals does not exist. The Court determined that the case could be accurately framed as a breach of the statutory requirements contained in the Corrections and Conditional Release Act. This statute provides that, among other things, Correctional Services Canada must keep updated and accurate information about inmates. The results of the assessment tools were not accurate information. Therefore, the defendant breached the Act by storing and using this data.

After addressing the fiduciary and statutory issues, the Court assessed whether there was a breach of Ewert’s section 7 Charter rights. Deprivation of life, liberty or security of the person is unconstitutional when it cannot be justified under section 1 of the Charter, which states that Charter rights are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Ewert was deprived of his liberty because the test results made parole practically unattainable. Ewert’s security of the person was also infringed because he was labelled as a risk to society and psychopathic based on his test results.

The Court found that the assessment tests went beyond their intended objective of identifying inmates who were threats to public security. The Court also found that using unreliable measures to make decisions which affect the liberty of persons is arbitrary. The continued use of the assessment tests on Aboriginal prisoners was a breach of the section 7 right to liberty and security of the person based on over-breadth and arbitrariness. This breach could not be justified.

The Court declared its intention to issue a final order preventing Correctional Services Canada from using the tests on Aboriginal inmates until studies could be conducted on their reliability and a Remedies Hearing Order to address the best and fairest manner of implementing this final order. Furthermore, the Court ordered that Correctional Services Canada cease using the results of Ewert’s assessment tests.

[This Case Watch blog post has been brought to you by the Native Law Centre in partnership with Pro Bono Students Canada - University of Saskatchewan]