Ewert v Canada: Improving Prison Processes for Indigenous Peoples?

Federal prisons are run by the Correctional Service of Canada (“CSC”). To fulfill its statutory mandate of rehabilitating inmates while keeping other inmates, staff, and society safe, the CSC assigns its prisoners a risk classification, largely using quantitative tests. For inmates, being deemed “high-risk” can lead to segregation, stigmatization, and diminished chances of parole, while “low-risk” inmates have greater access to rehabilitative programming and avenues for early release. Given these stakes, it would seem a grave injustice if the tools used for risk assessment were untrustworthy or systemically biased against certain prisoner populations.

Ewert, a long-imprisoned Métis man in his 50s, brought this very issue before the Supreme Court of Canada (“SCC”). In their 7-2 decision in Ewert v Canada 2018 SCC 30 [Ewert], the SCC held there is ample reason to doubt the cross-cultural validity of the CSC’s risk tests (measuring recidivism and psychopathy) in their application to Indigenous prisoners. Accordingly, the SCC issued a declaration that the CSC was not obeying the law. Specifically, they held that the CSC breached its statutory duty to Ewert 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” (Corrections and Conditional Release Act, SC 1992, c 20 [CCRA]). I will discuss the procedural history before exploring the SCC’s decision and its ramifications. I conclude with some thoughts on the potential impact of Ewert within the correctional system in Canada.

Procedural History

Ewert began his legal challenge to CSC’s risk tests almost two decades ago. In April 2000, he brought the first of several grievances to an internal review body. The CSC responded by acknowledging that the cross-cultural validity of their risk tests was unproven, and that it would seek an opinion on the matter from an independent outside body. Ultimately, the CSC failed to consult with the outside body or to confirm the validity of the tests (Ewert, para 85). In 2005, the CSC once again assured Ewert that it was reviewing its assessment tests and that no further action could be taken until the review was complete. Ewert then sought judicial review from the Federal Court (“FC”) (Ewert v Attorney General of Canada and the Commissioner of the Correctional Service of Canada, 2007 FC 13 [Ewert, FC 2007]). This action was dismissed largely because the CSC was supposedly taking steps towards analyzing the alleged bias in their tests (Ewert FC 2007, paras 66-67). The Federal Court of Appeal (“FCA”) similarly dismissed Ewert’s appeal in 2008.

By the time Ewert returned to the FC, it was 2015 (Ewert v Canada, 2015 FC 1093 [Ewert, FC 2015]). The CSC still had not carried out the research it committed to doing in 2007 (Ewert FC 2015, para 72). Justice Phelan agreed with Ewert that it was unacceptable for the CSC to continue using tests they had no proof worked with Indigenous prisoners. Perhaps recognizing the CSC’s incentive not to conduct research that could support Ewert’s and others’ legal claims, Justice Phelan mandated the research. He also granted injunctive relief prohibiting the CSC from using their risk assessments on Ewert until the tests could be proven valid, but this injunction did not last long.

The government appealed, winning their case at the FCA, which held that Ewert had not provided enough evidence that the risk tests produce “false results and conclusions” and thus that he had not proven his claims on a balance of probabilities (Canada v Ewert, 2016 FCA 2016, para 34). Consequently, the FC’s mandate to conduct research, as well as the injunction, were lifted. The FCA’s ruling arguably put Ewert in a “catch-22” situation. The expert witness the trial court relied upon said there was a research gap concerning the validity of the tests, and that “it is hardly practical for an individual litigant to engage in this type of analysis. Given the CSC’s legislated mandate … it is an activity most appropriately commissioned by CSC” (Ewert FC 2015, paras 34 and 35). This meant that Ewert would have to wait for the opposing party, the CSC, to conduct the research he was hoping to use to win his case against them. The FCA result underscores the difficulty Ewert has had for years in enforcing his rights against a powerful government entity. The SCC outcome reversed this trend.

Supreme Court Decision

In Ewert, the SCC rejected the FCA’s approach. In a majority opinion written by Justice Wagner (before he became Chief Justice), the SCC agreed the onus was on Ewert to prove his claims, but that “the question is not whether the CSC relied on inaccurate information, but whether it took all reasonable steps to ensure that it did not” (though the two dissenting judges said it is “validity” and “reliability”, not “accuracy”, that a risk test is properly measured for) (Ewert, para 47). The SCC did not find any violation of the Charter, focusing instead on CSC’s breach of statutory duty.

1. Breach of Statutory Duty

The SCC found two sections of the governing statute, the CCRA, particularly relevant: ss. 4(g) and 24(1). Section 4(g) had not been considered by the SCC previously. This section sets out a principle guiding federal corrections, namely that their “correctional policies, programs, and practices respect gender, ethnic, cultural, and linguistic differences and are responsive to the special needs of women, aboriginal peoples, persons requiring mental health care and other groups” (emphasis added). Section 24(1) articulates how the CSC “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 SCC agreed with the FC, which found that by “relying upon questionable tests,” the CSC had not taken “all reasonable steps” to ensure that the information about Ewert (and potentially other Aboriginal inmates) was accurate, current, and complete (Ewert, para 80).

2. Declaratory Remedy

The SCC issued a declaration that the CSC had breached it statutory duties to Ewert. For Ewert, this is certainly a victory but likely only a partial one. The effectiveness of a court’s declaration—even from the Supreme Court—is dependent on the government actor to which it is directed against. It is up to the CSC to respond responsibly and undertake the necessary research. But there are reasons to be suspicious. To begin, there is the history of the CSC not responding to requests by courts to conduct cross-cultural research of their assessment tools. Also, according to one of  Ewert’s lawyers, the CSC responded to the judgment in Ewert by releasing a Commissioner’s Directive saying they are already doing all that the SCC required of them. Another reason this may not be a fulsome victory for Ewert is that the injunction he achieved at trial level, temporarily preventing CSC’s use of test scores in his case, was not brought back into force by the SCC. Even despite the apparent narrowness of the result, the dissenting judges still found the declaratory remedy problematic in that it, in their opinion, risked undue interference with administrative bodies (Ewert, para 127).

Even the majority was understandably cautious about the Court’s institutional role in overseeing the CSC. Judges would be out of their depth and role, for instance, in supervising academic examination of quantitative tests. So, practically speaking, what does Ewert do for Ewert? Perhaps the SCC’s declaration is a foundation for future litigation. A judicial review application could be brought on the basis that the SCC made this declaration and the government has since not lived up to it. On a broader scale, the declaration may have laid down some planks for a future class action.

Conclusion

As noted in the intervenor’s factum from Aboriginal Legal Services, the CCRA has its origins in the Department of Justice’s 1982 publication The Criminal Law in Canadian Society. Alongside this publication, a number of working papers were commissioned as part of a “Correctional Law Review,” one of which was titled “Correctional Issues Affecting Native Peoples.” This foundational report acknowledges systemic discrimination against Aboriginal inmates as a serious problem within corrections, and outlines what could be done through legislation to address it. This means that the CCRA was drafted with a remedial purpose in mind. It was intended to empower Aboriginal peoples in achieving equality. Just as the Criminal Code, RSC 1985, c C-46 recognizes the problem of over-incarceration through s. 718.2(e), the CCRA’s s. 4(g) addresses the issue of differential outcomes within prison walls.

Despite the CCRA’s remedial purpose, decades after enactment the situation of Indigenous prisoners seems to be getting worse, not better. Justice Wagner was clearly concerned about these matters, noting that the “gap between Indigenous and non-Indigenous offenders has continued to widen on nearly every indicator of correctional performance” (Ewert, para 60). If Indigenous inmates are systemically given inflated risk scores, this has undoubtedly contributed to these inequitable outcomes. The SCC’s interpretation of the CCRA, namely their reading together of s. 4(g) with s. 24(1) to find that risk profiles of Indigenous peoples must be as accurate as possible, may help to finally turn the tides towards achieving the CRRA’s purpose. This will still require more than weak compliance by the CSC, but a Supreme Court declaration is still a normative and legal push towards change.