Mercedes Perez and co-counsel Karen Steward (Advocacy Centre for the Elderly) represented the intervenor Mental Health Legal Committee (MHLC) at the Supreme Court of Canada today in Ewert v. Canada.
The case involved a Charter challenge to the Correctional Service of Canada’s use of psychiatric actuarial risk assessment tools, such as the Violence Risk Appraisal Guide (VRAG), to predict risk of violent recidivism in Aboriginal prisoners. The MHLC’s intervention focused on the nature and sufficiency of the factual record required of section 7 Charter claimants. In this case, there was no scientific evidence validating the use of actuarial risk assessment tools in persons of Aboriginal descent because the tools had been developed on the basis of data obtained from a mostly Caucasian population. Mr. Ewert had been able to establish potential bias in the tools but could not otherwise conduct the necessary confirmatory research. The State, on the other hand, had the resources and the statutory duty under the Corrections and Conditional Release Act to undertake the necessary research but had failed to do so for more than a decade.
The MHLC argued that vulnerable individuals often face insurmountable evidentiary hurdles in mounting Charter challenges due to cost and other factors, including scientific uncertainty. Given this reality, a contextual and flexible approach to Charter claimants’ evidentiary burden is essential to promote access to justice and the preventative remedial function of the Charter. A contextual approach takes into account the comparative ability of the Charter claimant’s versus the State’s ability to adduce the necessary scientific evidence. In some cases, conclusive social and legislative facts are out of reach for Charter litigants but within the power of the State to obtain. Reasons of policy, fairness, efficiency and the statutory context may require the State to obtain the necessary evidence where the Charter claimant can otherwise establish a meritorious section 7 challenge.
Media coverage is available at this link.