Jeffrey G. Ewert v. 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)
(Federal Court) (Civil) (By Leave)
Prisons - Criminal law, Parole.
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Charter — Criminal law — Parole — Rights of prisoners — Applicant is Aboriginal federal inmate who brought action alleging psychological assessment tools related to recidivism and psychopathy are unreliable when administered to Aboriginal inmates, giving rise to statutory and ss. 7 and 15 Charter breaches — Federal Court judge found that use of assessment tools in respect of Aboriginal inmates was contrary to ss. 4(g) and 24(1) of Corrections and Conditional Release Act and gave rise to unjustifiable breach of s. 7 of Charter due to impact on institutional liberty decisions — Judge issued interim order enjoining Correctional Service of Canada from using assessment tools in respect of applicant — Federal Court of Appeal allowed appeal by Correctional Service of Canada — Whether ss. 4(g) and 24(1) of Corrections and Conditional Release Act require Correctional Service of Canada to establish reliability of assessment tools for Aboriginal inmates — Whether applicant’s s. 7 Charter right breached — Whether findings of fact sufficient to adjudicate applicant’s claim that CSC’s reliance on assessment tools breaches right to equal treatment under s. 15 of Charter — Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 4(g) and 24(1).
The Correctional Service of Canada (“CSC”) employs certain psychological tests, referred to as assessment tools or actuarial tests, to assess the risk of criminal recidivism and to assess psychopathy in inmates. The applicant, Mr. Jeffrey Ewert, commenced an action in the Federal Court in which he alleged that the assessment tools are 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 Canadian Charter of Rights and Freedoms. At trial, he sought injunctive and declaratory relief. A judge of the Federal Court found that the use of the assessment tools in respect of Aboriginal inmates was contrary to subsections 4(g) and 24(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, and violated s. 7 of the Charter in a manner that could not be justified. The Federal Court found it unnecessary to consider the application of s. 15 of the Charter. The Federal Court of Appeal allowed the CSC’s appeal. It held that the Federal Court judge erred in law in finding both a breach of the Act and a violation of s. 7 of the Charter.
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