Decision Released by Supreme Court in Charter and prisoners’ rights case

Mercedes Perez along with Karen Steward of the Advocacy Centre for the Elderly represented the Mental Health Legal Committee (MHLC) in an intervention at the Supreme Court of Canada in Ewert v. Canada. The decision was released on June 13, 2018.

The Supreme Court’s decision was a big win for prisoners of Indigenous descent who have long argued that there is no evidence that actuarial risk assessment tools such as the Violence Risk Appraisal Guide (VRAG) are valid or reliable when applied to them. Despite the ongoing controversy, these tools have continually been used on this population within Correctional Service of Canada (CSC) to make decisions that impact liberty interests; for example to make decisions about security classifications and parole recommendations.  The danger is that these tools are overestimating risk of recidivism.

A majority of the Court concluded that CSC’s use of these tools on Indigenous offenders constituted breaches of the Corrections and Conditional Release Act (CCRA).  Specifically, the majority found that the CSC’s duty to take all reasonable steps to ensure information about an offender is as accurate, up to date and complete as possible had been violated. The majority also held that provisions in the CCRA require CSC to advance substantive equality in correctional outcomes for Indigenous offenders given the systemic discrimination faced by this population in Canadian prisons. This systemic discrimination has resulted in the over-representation of Indigenous offenders in Canada’s criminal justice system. In this context, CSC had a duty to conduct or seek out the necessary confirmatory research respecting the validity and reliability of actuarial risk assessment tools.

With respect to Charter issues raised in this case, the MHLC argued that requiring proof of actual harm from Charter claimants (ie. requiring Charter claimants to conduct the necessary scientific research to establish that actuarial tools are invalid and unreliable) can insulate State conduct from meaningful Charter review.  While the majority found that CSC had a statutory obligation to prove that the tools were valid rather than Mr. Ewert having to prove that they were invalid, the majority nonetheless concluded that Mr. Ewert had not proved that his section 7 and section 15 Charter rights were violated.  Accordingly, important evidentiary issues that can impede access to the Charter for vulnerable claimants were not resolved.

The full text version of the Supreme Court of Canada decision is available here:

A plain language summary can be found here:

Media coverage is available here: