Supreme Court of Canada rules use of psychological risk assessment tools on Indigenous offenders illegal

Ewert v Canada, 2018 SCC 30 (13 June 2018)

Summary

The Supreme Court of Canada has held (7-2) that the Correctional Service of Canada (CSC) breached its statutory duty to Jeffrey Ewert, an inmate of Métis heritage, in assessing his risk of recidivism using actuarial risk assessment tools that had not been proven to be accurate when applied to Indigenous offenders.

Facts

The appellant, Jeffrey Ewert, is a 56 year old inmate serving two concurrent life sentences following his convictions of murder and attempted murder in 1984.

Mr Ewert challenged five psychological and actuarial risk assessment tools used by the CSC to assess inmates' risk of recidivism. He claimed that there was no research to support the valid application of these tools to Indigenous persons, including himself, on the basis that they had been developed and tested on predominantly non-Indigenous persons.

Accordingly, Mr Ewert submitted that the CSC's reliance on these tools in respect of Indigenous inmates:

(a) breached the CSC's duty under section 24(1) of the Corrections and Conditional Release Act 1992 (CCRA) to "take all reasonable steps to ensure that any information about an offender that [the CSC] uses is as accurate, up to date and complete as possible";

(b) unjustly infringed Mr Ewert's right under section 7 of the Canadian Charter of Rights and Freedoms (Charter) to life, liberty and security of person; and

(c) unjustly infringed Mr Ewert's right under section 15 of the Charter to the equal protection and equal benefit of the law without discrimination.

Mr Ewert sought both declaratory and injunctive relief to prohibit the CSC from applying the impugned tools to him or disseminating the results generated by the tools in his case. 

Decision

By a 7-2 majority, the Supreme Court upheld Mr Ewert's claim that the CSC breached its statutory obligation under section 24(1) of the CCRA. The Court unanimously dismissed Mr Ewert's Charter submissions.

Justice Wagner delivered the majority opinion of the Court, joined by Chief Justice McLachlin and Justices Abella, Moldaver, Karakatsanis, Gascon and Brown.

Justice Rowe filed the dissenting opinion, joined by Justice Côté.

Statutory claim under the CCRA

The Court was first required to consider whether the results derived from the impugned tools were a type of "information" within the scope of section 24(1). The majority approached this by having regard to the statutory context of section 24(1), noting that its surrounding provisions were expressly limited to certain types of information. They inferred, therefore, that since section 24(1) contained no qualification and referred expressly to "any" information, Parliament must have intended that it be given a broad construction that encompassed information generated by the impugned tools. In the majority's view, this interpretation was also consistent with the guiding principle in section 4(g) of the CCRA that correctional policies and practices must respect ethnic, cultural and linguistic differences and be responsive to the special needs of Indigenous peoples.

The Court then considered whether the obligation to ensure that information is "as accurate, up to date and complete as possible" required that the impugned tools were accurate with respect to Indigenous persons. The majority answered this question in the affirmative, holding that the CSC's practices, including the use of the impugned tools, were required to "be responsive to the needs of equity-seeking groups" and that accurate data was necessary for "the protection of society".  

The question then for the Court's consideration was whether the CSC had failed to take reasonable steps to use psychological and actuarial risk assessment tools that were accurate for Indigenous persons. Relying on evidence that the CSC had long been aware of the potential cultural bias of the impugned tools but had taken no steps to verify the accuracy of the tools, the majority held that the CSC breached section 24(1) and granted Mr Ewert declaratory relief.

Dissenting opinion on the statutory claim under the CCRA

The minority adopted a more narrow view of section 24(1), as they were not convinced that it was possible to determine the accuracy of the data underpinning the psychological and actuarial risk assessment tools. In their view, the "assessment of human personality, by whatever means, remains imprecise" and as a result, the CSC did not breach section 24(1).

Claim under section 7 of the Charter

To demonstrate a violation of section 7, Mr Ewert needed to establish that the CSC's reliance on the tools had deprived him of his life, liberty or security and that the deprivation contravened "the principles of fundamental justice prohibiting arbitrariness and overbreadth". The Court unanimously held that it is not sufficient to simply demonstrate that a government practice is unsound or not effective to establish the requisite standard of arbitrariness. Rather, "no rational connection" between the government action and the relevant government objective must be shown. The Court concluded that Mr Ewert failed to establish on the balance of probabilities that the CSC's use of the impugned tools with respect to Indigenous offenders had no rational connection to the relevant government objective.

Claim under section 15 of the Charter

The Court unanimously dismissed Mr Ewert's alleged infringement of section 15 of the Charter. The Court held that while it was open to conclude that the impugned tools were less accurate when applied to Indigenous inmates, there was insufficient evidence to establish that the tools actually overestimated the recidivism risk of Indigenous inmates or cause harsher conditions of incarceration or restrict the rehabilitative opportunities as a result.

Commentary

This decision serves as a reminder, in the Australian context, that achieving substantive equality before the law for Aboriginal and Torres Strait Islander peoples must involve respect for cultural rights in all aspects of the criminal justice system, including in the administration of the correctional system.

The full text of the decision is available here.

Dominic Tran is a graduate at Ashurst.

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