Jeffrey G. Ewert Appellant v. Her Majesty The Queen in Right of Canada (the Commissioner of the Correctional Service of Canada, the Warden of Kent Institution, 2018 SCC 30

SUPREME COURT OF CANADA Citation: Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165 Appeal Heard: October 12, 2017 Judgment Rendered: June 13, 2018 Docket: 37233 Between: Jeffrey G.

Ewert Appellant and 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) Respondent - and - Native Women’s Association of Canada, Canadian Association of Elizabeth Fry Societies, Mental Health Legal Committee, West Coast Prison Justice Society, Prisoners’ Legal Services, Canadian Human Rights Commission, Aboriginal Legal Services, Criminal Lawyers’ Association (Ontario), British Columbia Civil Liberties Association and Union of British Columbia Indian Chiefs Interveners Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.

Reasons for Judgment: (paras. 1 to 90) Wagner J. (McLachlin C.J. and Abella, Moldaver, Karakatsanis, Gascon and Brown JJ. concurring) Reasons Dissenting in Part: (paras. 91 to 129) Rowe J. (Côté J. concurring) Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165

Jeffrey G. Ewert Appellant 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) Respondent and Native Women’s Association of Canada, Canadian Association of Elizabeth Fry Societies, Mental Health Legal Committee, West Coast Prison Justice Society, Prisoners’ Legal Services, Canadian Human Rights Commission, Aboriginal Legal Services, Criminal Lawyers’ Association (Ontario), British Columbia Civil Liberties Association and Union of British Columbia Indian Chiefs Interveners Indexed as: Ewert v.

Canada 2018 SCC 30 File No.: 37233. 2017: October 12; 2018: June 13.

Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. on appeal from the federal court of appeal Prisons — Inmates — Indigenous offenders — Accuracy of information about offenders — Federal correctional authorities relying on psychological and actuarial assessment tools to make decisions regarding inmates in their custody — M étis inmate challenging reliance on these tools on ground that their validity when applied to Indigenous offenders has not been established through empirical research — Whether correctional authorities breached their statutory obligation to ensure that information about offenders is accurate by using these tools in respect of Indigenous offenders — If so, whether it is appropriate to issue declaration that obligation was breached — Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 24(1) .

Constitutional law — Charter of Rights — Principles of fundamental justice — Right to equality — Whether use of psychological and actuarial assessment tools to make decisions about Indigenous offender breached his rights to liberty, security of the person and equality — Canadian Charter of Rights and Freedoms, ss. 7 , 15 . E, who identifies as Métis, is currently serving two concurrent life sentences. He has spent over 30 years in federal custody, in medium and maximum security settings.

E challenged the use of five psychological and actuarial risk assessment tools used by the Correctional Service of Canada (“CSC”) to assess an offender’s psychopathy and risk of recidivism, on the basis that they were developed and tested on predominantly non-Indigenous populations and that no research confirmed that they were valid when applied to Indigenous persons.

He claimed, therefore, that reliance on these tools in respect of Indigenous offenders breached s. 24(1) of the Corrections and Conditional Release Act (“ CCRA ”), which requires the CSC 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”, as well as ss. 7 and 15 of the Charter . The trial judge agreed that, by relying on these tools despite long-standing concerns about their application to Indigenous offenders, the CSC breached its obligation under s. 24(1) of the CCRA and infringed E’s rights under s. 7 of the Charter .

The Federal Court of Appeal overturned both of these findings. Held ( Côté and Rowe JJ. dissenting in part): The appeal should be allowed in part. The CSC breached its obligation set out in s. 24(1) of the CCRA . Per McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Brown JJ.: In continuing to rely on the impugned tools without ensuring that they are valid when applied to Indigenous offenders, the CSC breached its obligation under s. 24(1) of the CCRA to take all reasonable steps to ensure that any information about an offender that it uses is as accurate as possible.

However, the CSC’s reliance on the results generated by the impugned tools does not constitute an infringement of E’s rights under s. 7 or s. 15 of the Charter .

The inquiry into whether the CSC met its obligation under s. 24(1) of the CCRA gives rise to two main questions. The first is whether results generated by the impugned tools are a type of information to which s. 24(1) applies. Reading the words of s. 24(1) in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and objects of the CCRA , the obligation in s. 24(1) applies to results generated by the impugned tools. In the ordinary sense of the words in s. 24(1) , the knowledge derived from the impugned tools by the CSC is information about an offender. This

interpretation is supported by the relevant statutory context. Sections 23 through 27 of the CCRA deal with different aspects of the CSC’s collection, use and dissemination of different types of information. When they are read together, it is clear that where Parliament intended a particular provision to apply to only certain types of information, it enumerated them or otherwise qualified the scope of the information. This reinforces the conclusion that the obligation in s. 24(1) , which applies to any information, was intended to have broad application.

The context of these other provisions also confirms that the broad scope of s. 24(1) is not limited by the narrower scope of s. 24(2). Furthermore, the legislative scheme within which the CSC operates and the CSC’s practice based on the scheme contemplate that the CSC will use the results generated by the tools in making important decisions about offenders, and CSC policy requires its use in certain circumstances . This favours applying the obligation in s. 24(1) to this information. In addition, the statutory purpose of the correctional system supports this

interpretation. Accurate information about an offender’s psychological needs and the risk he or she poses is crucial to achieving the system’s purpose of contributing to the maintenance of a just, peaceful and safe society by carrying out sentences through safe and humane custody of inmates and assisting in their rehabilitation and reintegration into the community. Interpreting s. 24(1) as applying to a broad range of information is also consistent with the paramount consideration for the CSC: the protection of society may be undermined if inaccurate tests are applied and risk is underestimated. The nature of the information derived from the impugned tools provides further support for this

interpretation: these tools are considered useful because the information from them can be scientifically validated; therefore, it should be accurate. As a result, the CSC’s statutory obligation at s. 24(1) applies to results generated by the impugned assessment tools. The second question to be addressed is whether the CSC breached its obligation, and more specifically, whether it failed to take all reasonable steps to ensure that the impugned tools produce accurate information when applied to Indigenous persons.

Section 24(1) requires that the CSC take all reasonable steps to ensure the accuracy of information about an offender that it uses, not all possible steps. What constitutes all reasonable steps will vary with the context. In this case, the trial judge’s conclusion that the CSC failed to take the reasonable steps required is amply supported by the record.

The CSC had long been aware of concerns regarding the possibility of these tools exhibiting cultural bias yet took no action to confirm their validity and continued to use them in respect of Indigenous offenders, despite the fact that research would have been feasible. In doing so, the CSC did not meet the legislated standard set out in s. 24(1). This conclusion is supported by the

interpretation and application of the guiding principle set out in s. 4 (

g) of the CCRA . This principle requires that correctional policies, programs and practices must respect gender, ethnic, cultural and linguistic differences and must be responsive to the special needs of equity-seeking groups, and in particular Indigenous persons.

Section 4 (

g) represents an acknowledgement of the systemic discrimination faced by Indigenous persons in the Canadian correctional system. It is evident from the grammatical and ordinary sense of the words of s. 4 (

g) and the legislative history of the CCRA that s. 4 (

g) should be understood as a direction from Parliament to the CSC to advance substantive equality in correctional outcomes for Indigenous offenders. It is critical that the CSC give this direction meaningful effect. In the context of the present case, this means, at a minimum, addressing the long-standing, and credible, concern that continuing to use the impugned tools in evaluating Indigenous inmates perpetuates discrimination and disparity in correctional outcomes between Indigenous and non-Indigenous offenders.

The CSC must ensure that its policies and programs are appropriate for Indigenous offenders and responsive to their needs and circumstances. For the correctional system to operate fairly and effectively, the assumption that all offenders can be treated fairly by being treated the same way must be abandoned. The CSC’s inaction with respect to the concerns raised about the impugned tools fell short of what s. 24(1) required it to do. In the circumstances of this case, it is appropriate to issue a declaration that the CSC has failed to meet its obligation under s. 24(1) of the CCRA .

A court may, in its discretion, grant a declaration where it has jurisdiction to hear the issue, where the dispute is real and not theoretical, where the party raising the issue has a genuine interest in its resolution, and where the respondent has an interest in opposing the declaration sought. These criteria are met.

Although a declaration is an exceptional and discretionary remedy which should normally be declined where there exists an adequate alternative statutory mechanism to resolve the dispute or to protect the rights in question, the statutory grievance mechanism that may be available to E has not been effective and he should not be required to begin the grievance process anew. E has not established an infringement of his rights under s. 7 of the Charter .

To establish that the CSC’s reliance on the impugned tools violated the principle of fundamental justice against arbitrariness or that against overbreadth, E had to show on a balance of probabilities that the CSC’s practice of using the impugned tools with respect to Indigenous offenders had no rational connection to the government objective.

He has not done so: there was no evidence before the trial judge that how the impugned tools operate in the case of Indigenous offenders is likely to be so different from how they operate in the case of non-Indigenous offenders that their use in respect of the former is completely unrelated to the government objective. E also failed to meet his onus of establishing that a new principle of fundamental justice — that the state must obey the law — should be found to exist. Similarly, E has not established the infringement of his rights under s. 15 of the Charter that he alleged.

The trial judge could not have found, on the evidence before him, that the impugned tools overestimate the risk posed by Indigenous inmates or lead to harsher conditions of incarceration or to the denial of rehabilitative opportunities because of such an overestimation. His conclusion should not be disturbed. Per Côté and Rowe JJ. (dissenting in part): There is agreement with the majority with respect to E’s ss. 7 and 15 Charter claims. However, there is disagreement that s. 24(1) of the CCRA imposes an obligation on the CSC to conduct research as to the validity of the impugned tools.

Although it is important to address Indigenous overrepresentation in prison, and there is concern with the CSC’s inaction with respect to the issue raised by E, it was not Parliament’s intent to hold the CSC to account on this issue pursuant to s. 24(1) . The scope of the obligation in s. 24(1) , as applied to the impugned tools, simply requires that the CSC maintain accurate records of the inmates’ test scores.

Interpreted in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and the object of the CCRA and the intention of Parliament, the words of s. 24(1) refer to biographical or factual information about an offender, such as age, criminal record, behaviour in prison, or courses taken with a view to rehabilitation, that should be accurate, up to date, and complete.

The scheme that is set out in ss. 23 and 24 is straightforward: s. 23 lists information that is to be recorded, s. 24(1) requires the CSC to record this information accurately and to keep it up to date, and s. 24(2) provides a means for an inmate to correct errors or

deficiencies. The CCRA’s goals of managing the custody of offenders, assisting in their rehabilitation and reintegration, and protectingsociety require good decision-making based on accurate information.

Section 24 relates to the accuracy of information, thus it serves animportant function. However, that function does not include verifying the validity of the impugned tools. Rather, the scheme reflectsParliament’s intent to provide offenders with a specific remedy to make sure that the CSC’s duty to maintain accurate records is met. Theword “information” in ss. 24(1) and 24(2), consecutive subsections of the same provision, should be given the same meaning. Theseprovisions are about accurate record-keeping, not about challenging the means that the CSC uses to make its decisions.

When anoffender’s complaint is about the way that a particular decision is made, the CCRA provides a means for offenders to file a grievance andif necessary, pursue judicial review. There is also disagreement with the majority as to the remedy. A declaration should not be granted, even in the exceptionalcircumstances of this case.

The proper remedy for breach of statutory duty by a public authority is judicial review for invalidity.Allowing inmates to apply for a declaration would effectively bypass the ordinary process of judicial review and thus fail to accord thedeference typically shown to administrative decision makers. This could open the door to undue interference with the discharge ofadministrative functions in respect of matters delegated to administrative bodies. It is unwise to depart from settled legal principles, evenon the facts of this case. The appeal should be dismissed. Cases Cited By Wagner J.

Referred to: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; F.H. v. McDougall, 2008 SCC 53,[2008] 3 S.C.R. 41; Ewert v. Canada (Attorney General), 2008 FCA 285, 382 N.R. 370; Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13,[2012] 1 S.C.R. 433; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Canada (Attorney General) v. Bedford,2013 SCC 72, [2013] 3 S.C.R. 1101; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R.571; Manitoba Metis Federation Inc. v.

Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; Daniels v. Canada (IndianAffairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R.44; Solosky v. The Queen, (SCC), [1980] 1 S.C.R. 821; Ewert v. Canada (Attorney General), 2007 FC 13, 306 F.T.R.234. By Rowe J. (dissenting in part) R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; Ewert v.Canada (Attorney General), 2007 FC 13, 306 F.T.R. 234, aff’d 2008 FCA 285, 382 N.R. 370; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; R. v.

Zeolkowski, (SCC), [1989] 1 S.C.R. 1378; Kim v. Canada, 2017 FC 848;Tehrankari v. Canada (Correctional Service) (2000), (FC), 38 C.R. (5th) 43; Charalambous v. Canada (AttorneyGeneral), 2015 FC 1045, aff’d 2016 FCA 177, 483 N.R. 398; Tehrankari v. Canada (Attorney General), 2012 FC 332; GreaterVancouver (Regional District) v. British Columbia, 2011 BCCA 345, 339 D.L.R. (4th) 251; Holland v. Saskatchewan, 2008 SCC 42,[2008] 2 S.C.R. 551; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 1, 7, 15.

Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 3, 3.1, 4, 15.1, 23 to 27, 23, 24, 25(1), 26, 27, 28, 28 to 31, 30, 80 to 84,90. Corrections and Conditional Release Regulations, SOR/92-620, ss. 13, 17, 18, 74 to 82. Criminal Code, R.S.C. 1985, c. C-46, s. 718.2(e). Federal Courts Act, R.S.C. 1985, c. F-7, s. 17. Federal Courts Rules, SOR/98-106, r. 64.

Interpretation Act, R.S.C. 1985, c. I-21, s. 12. Authors Cited Brown, Donald J. M., and John M. Evans, with the assistance of David Fairlie. Judicial Review of Administrative Action in Canada.Toronto: Thomson Reuters, 2013 (loose-leaf updated April 2018, release 1). Canada. Commission of Inquiry into Certain Events at the Prison for Women in Kingston. Ottawa: Public Works and GovernmentServices Canada, 1996. Canada. Department of Justice and Solicitor General. Directions for Reform: A Framework for Sentencing, Corrections and ConditionalRelease. Ottawa: Supply and Services Canada, 1990. Canada. House of Commons.

House of Commons Debates, vol. IV, 3rd Sess., 34th Parl., November 4, 1991, pp. 4430-31. Canada. Office of the Auditor General. 2016 Fall Reports of the Auditor General of Canada: Report 3 — Preparing IndigenousOffenders for Release — Correctional Service Canada. Ottawa, 2016. Canada. Office of the Correctional Investigator. Annual Report 2015-2016. Ottawa, 2016.

Canada. Office of the Correctional Investigator. Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act — Final Report . Ottawa, 2012. Canada. Royal Commission on Aboriginal Peoples. Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada . Ottawa, 1996. Canada. Solicitor General. Towards a Just, Peaceful and Safe Society: The Corrections and Conditional Release Act Five Years Later — Consolidated Report . Ottawa: Public Works and Government Services of Canada, 1998. Hogg, Peter W., Patrick J. Monahan and Wade K. Wright.

Liability of the Crown , 4th ed. Toronto: Carswell, 2011. Manitoba. Public Inquiry into the Administration of Justice and Aboriginal People. Report of the Aboriginal Justice Inquiry of Manitoba , vol. 1, The Justice System and Aboriginal People . Winnipeg, 1991. Sarna, Lazar. The Law of Declaratory Judgments , 4th ed. Toronto: Thomson Reuters, 2016. Sullivan, Ruth. Sullivan on the Construction of Statutes , 6th ed. Markham, Ont.: LexisNexis, 2014. APPEAL from a judgment of the Federal Court of Appeal (Nadon, Dawson and Webb JJ.A.), 2016 FCA 203 , 487 N.R. 107, 363 C.R.R. (2d) 120, [2016] F.C.J.

No. 853 (QL), 2016 CarswellNat 3417 (WL Can.), setting aside a decision of Phelan J., 2015 FC 1093 , 343 C.R.R. (2d) 15, [2016] 1 C.N.L.R. 50, [2015] F.C.J. No. 1123 (QL), 2015 CarswellNat 4551 (WL Can.). Appeal allowed in part, Côté and Rowe JJ. dissenting in part. Jason B. Gratl and Eric Purtzki , for the appellant. Anne Turley and Banafsheh Sokhansanj , for the respondent. Pam MacEachern and Virginia Lomax , for the interveners the Native Women’s Association of Canada and the Canadian Association of Elizabeth Fry Societies. Mercedes Perez and Karen A.

Steward , for the intervener the Mental Health Legal Committee. Avnish Nanda , for the interveners the West Coast Prison Justice Society and the Prisoners’ Legal Services. Fiona Keith and Sasha Hart , for the intervener the Canadian Human Rights Commission. Emily Hill and Jessica Wolfe , for the intervener the Aboriginal Legal Services. Anita Szigeti , Jill R. Presser , Andrew Menchynski and Breana Vandebeek , for the intervener the Criminal Lawyers’ Association (Ontario).

Paul Champ and Christine Johnson , for the interveners the British Columbia Civil Liberties Association and the Union of British Columbia Indian Chiefs. The judgment of McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Brown JJ. was delivered by Wagner J. — I. Overview [ 1 ] A person who is convicted of a criminal offence and sentenced to imprisonment for two years or longer becomes an inmate of Canada’s federal correctional system.

Parliament has directed in s. 3 of the Corrections and Conditional Release Act , S.C. 1992, c. 20 (“ CCRA ”), that the purpose of the correctional system is to contribute to the maintenance of a just, peaceful and safe society. This purpose is to be achieved by two means: first, by carrying out sentences through the safe and humane custody of offenders and, second, by assisting in their rehabilitation and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and the community.

The Correctional Service of Canada (“CSC”) is the entity charged with ensuring that the purpose of the correctional system is achieved. [ 2 ] In order to fulfill its mandate, the CSC must make numerous decisions about each inmate in its custody. For example, it is required to assign a security classification of maximum, medium or minimum to each inmate, taking into account the risk to public safety posed by the inmate, the inmate’s likelihood of escape, and the inmate’s institutional supervision needs: see CCRA , s. 30; Corrections and Conditional Release Regulations , SOR/92-620 , s. 18.

The CSC must decide in which penitentiary to house each inmate, taking into account factors such as the safety of the inmate, other inmates and the public, and the availability of rehabilitative programs and services: see CCRA , s. 28. It develops a correctional plan for each inmate in order to ensure that inmates receive the most effective programs to rehabilitate them and prepare them for reintegration into the community on their release: see CCRA , s. 15.1.

The CSC also decides whether to recommend to the Parole Board of Canada that an inmate be released on parole. [ 3 ] If the CSC is to effectively assist in the rehabilitation of inmates while ensuring the safety of other inmates and staff members and the protection of society as a whole, it must base its decisions about inmates in its custody on sound information.

This is explicitly recognized in s. 24(1) of the CCRA , which requires the CSC 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”. [ 4 ] This appeal concerns a challenge by the appellant, Jeffrey G. Ewert, to the CSC’s use of one particular type of information. Mr. Ewert, who is Métis, challenges the CSC’s reliance on certain psychological and actuarial risk assessment tools on the ground that the validity of the tools when applied to Indigenous offenders has not been established through empirical research.

[ 5 ] A judge of the Federal Court concluded that, by relying on these tools despite long-standing concerns about their application to Indigenous offenders, the CSC had breached its obligation under s. 24(1) of the CCRA and had unjustifiably infringed Mr. Ewert’s rights under s. 7 of the Canadian Charter of Rights and Freedoms . The Federal Court of Appeal overturned both of these findings. [ 6 ] I agree with the Federal Court of Appeal that Mr. Ewert has not established a violation of his Charter rights.

However, I conclude that the trial judge was correct to find that the CSC had, in continuing to rely on the impugned tools without ensuring that they are valid when applied to Indigenous offenders, breached its obligation under s. 24(1) of the CCRA . As I will explain, my conclusion in this respect is informed in part by the guiding principle in s. 4 (

g) of the CCRA , which provides that correctional policies, programs and practices must respect cultural differences and be responsive to the special needs of Indigenous peoples. [ 7 ] For the reasons that follow, I would allow Mr. Ewert’s appeal in part, and declare that the CSC did in fact breach the obligation in s. 24(1) of the CCRA . Although a declaration is an exceptional remedy, it is one that is available in the circumstances of this case and one that this Court should exercise its discretion to grant. II. Background [ 8 ] Mr. Ewert is 56 years old. He identifies as Métis. [ 9 ] Mr.

Ewert was convicted of murder and attempted murder for strangling and sexually assaulting two women in two separate incidents in 1984. Mr. Ewert is currently serving two concurrent life sentences for these offences. He has spent over 30 years in federal custody and has been held in medium and maximum security settings during that time. [ 10 ] Mr. Ewert has been eligible to apply for day parole since 1996 and for full parole since 1999. He has waived his right to each parole hearing for which he has been eligible. [ 11 ] At trial, Mr.

Ewert challenged the CSC’s use of five psychological and actuarial risk assessment tools. One of these is the Hare Psychopathy Checklist-Revised (“PCL-R”), a tool that was designed to assess the presence of psychopathy but is also used to assess the risk of recidivism. Mr.

Ewert also challenged the use of the Violence Risk Appraisal Guide (“VRAG”) and the Sex Offender Risk Appraisal Guide (“SORAG”), two actuarial tools designed to assess the risk of violent recidivism; the Static-99, an actuarial tool designed to estimate the probability of sexual and violent recidivism; and the Violence Risk Scale – Sex Offender (“VRS-SO”), a rating scale designed to assess the risk of sexual recidivism that is used in connection with the delivery of sex offender treatment. [ 12 ] Mr.

Ewert claimed that while he has been incarcerated, the CSC has relied on these tools in conducting needs and risk assessments on him. He further claimed that these tools had been developed and tested on predominantly non-Indigenous populations and that there was no research confirming that they were valid when applied to Indigenous persons. Mr.

Ewert submitted that, therefore, the CSC’s reliance on the impugned tools in respect of Indigenous offenders represented a failure by the CSC to take all reasonable steps to ensure the accuracy of information about offenders that it uses, as required by s. 24(1) of the CCRA . He also argued that the CSC’s reliance on the tools was contrary to the guiding principle now set out in s. 4 (

g) of the CCRA that correctional policies and practices must respect ethnic and cultural differences and be responsive to the special needs of Indigenous persons. Further, Mr. Ewert argued that the CSC’s reliance on tools that had not been shown to be valid when applied to Indigenous offenders infringed his rights under ss. 7 and 15 of the Charter . He sought declaratory relief and an injunction preventing the CSC from using the impugned tools in respect of him or disseminating any results generated by the tools in his case. III. Judgments Below A.

Federal Court (Phelan J.), 2015 FC 1093 , 343 C.R.R. (2d) 15 [ 13 ] At trial, Mr. Ewert relied in support of his claims on the expert evidence of Dr. Stephen Hart, a professor of psychology at Simon Fraser University. Dr. Hart was qualified to give opinion evidence in the area of the development, application and validity of actuarial and psychological instruments used by the CSC. The trial judge generally accepted Dr. Hart’s evidence. In particular, he accepted and relied on Dr. Hart’s evidence that tests like the impugned tools are susceptible to “cross-cultural bias” or “variance”. Dr.

Hart testified that cross-cultural variance occurs when the reliability or validity of an assessment tool varies depending on the cultural background of the individual to whom the tool is applied. He further testified that membership in a cultural group is assessed through self-identification and that acculturation is a matter of degree.

Generally speaking, however, because of the significant cultural differences between Indigenous and non-Indigenous Canadians, the impugned tools — which were developed for and validated by studies on predominantly non-Indigenous populations — are more likely than not to be cross-culturally variant to some degree when applied to Indigenous individuals. Dr.

Hart testified that notwithstanding his opinion that the tools were likely to be affected by cultural bias, he could not express an opinion on the impact of that bias: it could be subtle and tolerable or it could be profound and intolerable. [ 14 ] The trial judge also accepted Dr. Hart’s evidence that although there are a number of types of analyses that can be employed to establish that an actuarial test is free of cross-cultural variance, none of them have been completed for the impugned tools.

One academic study published in 2013 suggests that the PCL-R does validly predict the recidivism risk posed by Indigenous offenders, but Dr. Hart discounted it because, for one thing, it is based on a small sample size. Dr. Hart’s evidence led the trial judge to find that the scores generated by the impugned tools when applied to Indigenous individuals ought not to be relied upon “in and of themselves”: para. 56. [ 15 ] The respondent, to whom I will refer as the “Crown” in these reasons, presented the conflicting expert evidence of Dr.

Marnie Rice, a clinical psychologist, researcher and professor of psychology and psychiatry. Dr. Rice testified that the impugned tools are valid and are not affected by cultural bias with respect to Indigenous offenders. The trial judge found Dr. Rice’s evidence to be of little assistance and concluded that it could not be relied upon, except where it was consistent with that of Dr. Hart. [ 16 ] The trial judge accepted that the CSC had relied on results generated by certain of the impugned tools in making decisions that affected key aspects of Mr. Ewert’s incarceration.

Specifically, he found that results generated by these tools were one

factor CSC decision-makers had considered in deciding whether to recommend that Mr. Ewert be granted parole, in determining his security classification, and in denying requests for escorted temporary absences.

The trial judge also found that it was common practice in the CSC to use the impugned tools to assess an inmate’s psychopathy or risk of violence, and that the scores derived from these assessments were required to be taken into account in determining an inmate’s overall security rating. [ 17 ] Citing the evidence of the Crown’s fact witness, a former head of research at the CSC, the trial judge found that the CSC had been aware of concerns about the validity of the application of the impugned tools to Indigenous offenders since 2000, but that it had conducted no research to verify the validity of their application in that context. [ 18 ] These findings led the trial judge to conclude that, by continuing to rely on the impugned tools without confirming ― even though it had long had concerns in this respect ― that they are valid when applied to Indigenous persons, the CSC had failed to “take all reasonable steps to ensure that any information about an offender that it uses is as accurate . . . as possible” as is required by s. 24(1) of the CCRA . [ 19 ] The trial judge also concluded that the CSC had, by relying on the impugned tools, infringed Mr.

Ewert’s rights under s. 7 of the Charter . The trial judge was satisfied that Mr. Ewert’s s. 7 liberty interest had been adversely affected by decisions related to his security classification, his suitability for parole and his requests for temporary absences, and that his security of the person interest under that

section was engaged by the impact on him of being labelled a psychopath. The trial judge concluded that these deprivations of liberty and security of the person were contrary to the principles of fundamental justice. The CSC’s application of the impugned tools to Indigenous inmates was arbitrary and overbroad given the purpose and objective being pursued by the CSC in making decisions, which the trial judge characterized as being to predict an offender’s risk of reoffending as accurately as possible in the interests of public safety.

These infringements could not be justified under s. 1 of the Charter . [ 20 ] Mr. Ewert argued, in the alternative, that the CSC’s use of the impugned tools was contrary to a proposed new principle of fundamental justice, namely that the state must obey the law. The trial judge concluded that it was unnecessary to address this argument. The trial judge also held that the factual record was not sufficiently developed to support Mr. Ewert’s argument that his rights under s. 15 of the Charter had been infringed. [ 21 ] Having concluded that the CSC had breached a statutory duty owed to Mr.

Ewert and had violated his rights under s. 7 of the Charter , the trial judge ordered an interim injunction that prohibited the CSC from using results generated by the impugned tools with respect to Mr. Ewert. The trial judge also indicated his intention to issue a final order enjoining the use of these tools in respect of Mr. Ewert and other Indigenous inmates until, at a minimum, the CSC had conducted a study that confirmed the reliability of the tools for use in respect of Indigenous offenders. The details of the final order were to be addressed at a remedies hearing. B.

Federal Court of Appeal (Dawson J.A., Nadon and Webb JJ.A. Concurring) , 2016 FCA 203 , 487 N.R. 107 [ 22 ] The Federal Court of Appeal allowed the Crown’s appeal from the trial judge’s interim order. [ 23 ] The Federal Court of Appeal concluded that the trial judge had applied an incorrect legal test in deciding whether Mr. Ewert had established a breach of s. 24(1) of the CCRA .

The Court of Appeal stated that, to find that s. 24(1) had been breached, the trial judge had to be satisfied on a balance of probabilities that the assessment tools produce or are likely to produce false results and conclusions when applied to Indigenous persons. Because there was no evidence showing that to be the case, Mr. Ewert had not established that the CSC had failed to take all reasonable steps to ensure that the information it used about Indigenous inmates was as accurate as possible. [ 24 ] The Court of Appeal also held that to establish a violation of s. 7 of the Charter , Mr.

Ewert had to establish on a balance of probabilities that the impugned tools produce inaccurate results when applied to Indigenous inmates. The trial judge had erred in failing to require Mr. Ewert to meet this standard, as he had instead relied on the absence of evidence proving the accuracy and reliability of the assessment tools when applied to Indigenous offenders to find that Mr. Ewert had established a s. 7 violation. [ 25 ] Finally, the Court of Appeal rejected Mr. Ewert’s argument that it should find that his rights under s. 15 of the Charter had been infringed. IV. I ssues [ 26 ] Mr.

Ewert’s appeal to this Court raises the following issues: A. Did the CSC breach its obligation under s. 24(1) of the CCRA by failing to take all reasonable steps to ensure the accuracy of the results generated by the impugned tools when applied to Indigenous offenders? B. Did the CSC’s reliance on results generated by the impugned tools constitute an unjustified infringement of Mr. Ewert’s rights under s. 7 of the Charter ? C. Did the CSC’s reliance on results generated by the impugned tools constitute an unjustified infringement of Mr. Ewert’s rights under s. 15 of the Charter ? V.

A nalysis [ 27 ] In this Court, Mr. Ewert’s argument that the CSC breached its obligation under the CCRA has been made primarily in support of the further argument that this constituted an infringement of his rights under the Charter . Mr. Ewert argues that this Court

should recognize a new principle of fundamental justice, namely that the state must obey the law, and he further argues that he wasdeprived of liberty and security of the person contrary to that principle, because the CSC was in breach of its obligation under s. 24(1) ofthe CCRA. Mr. Ewert has failed to establish his Charter claims. I nonetheless agree with the trial judge that Mr. Ewert has establishedthat the CSC breached its obligation under s. 24(1) of the CCRA. In the exceptional circumstances of this case, it is appropriate for thisCourt to exercise its discretion to grant a declaration to this effect.

I will set out my reasons for reaching this conclusion after explainingthe basis for my finding that the CSC was in breach of the obligation in s. 24(1) of the CCRA and for my conclusion that Mr. Ewert’sCharter claims should be dismissed. A. Did the CSC Breach Its Obligation Under Section 24(1) of the CCRA? [28] In order to determine whether the CSC breached its obligation under s. 24(1) of the CCRA, the scope of thatobligation must first be defined.

Then, the CSC’s conduct must be examined in order to determine whether the CSC met the legislatedstandard. [29] To interpret the scope of the obligation provided for in s. 24(1), I will apply the modern approach to statutoryinterpretation: “the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously withthe scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), (SCC),[1998] 1 S.C.R. 27, at para. 21, quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). Because the CCRA is federallegislation, the

interpretation exercise must also be guided by s. 12 of the

Interpretation Act, R.S.C. 1985, c. I-21, which reads asfollows: 12 Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensures theattainment of its objects. [30] In the instant case, the inquiry into whether the CSC has met the obligation set out in s. 24(1) gives rise to two mainquestions. The first is whether results generated by the impugned tools are a type of information to which s. 24(1) applies. If the answeris yes, the second question is whether the CSC took sufficient steps to ensure the accuracy of that information. I will discuss each ofthese questions in turn.

(1) Does the Obligation Provided for in Section 24(1) of the CCRA Apply to Results Generated by the Impugned Tools? [31] The first issue to address is whether the obligation provided for in s. 24(1) of the CCRA applies to results generatedby the impugned tools. Mr. Ewert argues that it does, while the Crown argues that it does not. The Crown submits that s. 24(1) requiresonly that information be properly gathered and recorded, and that the obligation imposed by that provision is inapplicable to the resultsgenerated by the impugned tools. For the reasons set out below, I would reject the Crown’s argument.

Reading the words of s. 24(1) intheir entire context and in their grammatical and ordinary sense harmoniously with the scheme and objects of the CCRA, I conclude thatthe obligation provided for in s. 24(1) applies to results generated by the impugned tools. [32] Section 24(1) of the CCRA reads as follows: Accuracy, etc., of information 24

(1) The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to dateand complete as possible. [33] On its face, the obligation imposed by s. 24(1) of the CCRA appears to apply to information derived from theimpugned tools. Section 24(1) provides that the obligation applies to “any information about an offender that [the CSC] uses”.

In theordinary sense of these words, the knowledge the CSC might derive from the impugned tools — for example, that an offender has apersonality disorder or that there is a high risk that an offender will violently reoffend — is “information” about that offender. The trialjudge found that the CSC uses results generated by the impugned tools in making various decisions about offenders. Thus, those resultsare “information about an offender that [the CSC] uses” in the ordinary meaning of those words.

The fact that s. 24(1) applies to “any”such information confirms that, if its words are read in their grammatical and ordinary sense, it applies to the information at issue in thiscase. [34] This

interpretation of s. 24(1) is supported by the relevant statutory context. Sections 23 through 27 of the CCRA allfall under the heading “Information” and must be read together. However, although these sections all relate generally to information,they deal with different aspects of the CSC’s collection, use and dissemination of information and apply to different types ofinformation. For example, s. 23(1) enumerates specific types of information the CSC must obtain when a person is sentenced, committedor transferred to penitentiary.

Section 25(1) requires the CSC to disclose to bodies authorized to supervise offenders “all informationunder its control that is relevant to release decision-making”.

Section 26 governs the disclosure of information about an offender to avictim of an offence, enumerating, for example, specific information that must be disclosed to the victim (s. 26(1)(a)) and otherinformation that may be disclosed to the victim in specific circumstances (s. 26(1)(b)).

Section 27 governs the disclosure to an offenderof information considered in taking a decision about him or her, requiring that in certain circumstances the offender be given “all theinformation” to be considered or that was considered in the taking of the decision, or a

summary of that information. [35] When ss. 23 through 27 are read together, it is clear that where Parliament intended a particular provision to apply toonly certain types of information, it enumerated them or otherwise qualified the scope of the information to which a particular provisionwas to apply.

This further reinforces the conclusion that the obligation in s. 24(1) — which applies to “any information about an offenderthat [the CSC] uses” — was intended to have broad application. [36] Furthermore, reading s. 24(1) in the context of the other provisions in ss. 23 through 27 confirms that the broadscope of the obligation in s. 24(1) should not be limited by the evidently narrower scope of s. 24(2). Section 24(2) provides that it applies

to information the CSC has obtained pursuant to s. 23(1) and then disclosed to an offender pursuant to s. 23(2). However, the fact that subs. 24(2) is in the same

section as subs. 24(1) does not mean that these two provisions were intended to have identical scopes. As I mentioned above, certain provisions in s. 26 expressly apply to different types of information, but s. 26 as a whole deals generally with the disclosure of information to victims. And whereas the subsections of s. 27 all deal generally with giving information to offenders, ss. 27(1) and 27(2) address the giving of information in different circumstances. Likewise, ss. 24(1) and 24(2) both deal generally with the accuracy of information. It does not follow that they apply to identical types of information.

Had Parliament intended s. 24(1) to apply only to information the CSC has collected pursuant to s. 23(1), it could have said so explicitly. Moreover, it could have placed the two subsections of s. 24 in s. 23 instead of placing them together in a separate section. In any case, the fact that subss. 24(1) and 24(2) are in the same

section is not sufficient to overcome the clear language of the words “ any information”, which indicate that the obligation provided for in s. 24(1) has a broad scope. [ 37 ] The legislative scheme within which the CSC operates also favours a reading of the words “any information about an offender that [the CSC] uses” in s. 24(1) that includes results generated by the impugned tools. Both that legislative scheme and the CSC’s practice based on the scheme contemplate CSC decision-makers using information such as results generated by the impugned tools in making important decisions about offenders.

For example, s. 17 of the Corrections and Conditional Release Regulations requires the CSC to consider “ any physical or mental illness or disorder suffered by the inmate” and “the inmate’s potential for violent behaviour” in determining the security classification to be assigned to an inmate . Moreover, according to evidence presented at trial, it is CSC policy to require that psychological risk assessments be conducted with respect to offenders in some circumstances, including where an inmate serving a life sentence is being considered for conditional release.

The fact that the legislative scheme contemplates that the CSC will use information such as results generated by the impugned tools indicates that the scheme also contemplates that the information will be subject to the obligation provided for in s. 24(1). And the fact that CSC policy requires the use of this information in certain circumstances favours applying the obligation to it. [ 38 ] In addition, the statutory purpose of the correctional system supports an

interpretation according to which the CSC’s obligation under s. 24(1) extends to the accuracy of psychological or actuarial test results that it uses. As I mentioned above, the system’s purpose is to contribute to the maintenance of a just, peaceful and safe society by carrying out sentences through the safe and humane custody of inmates and by assisting in their rehabilitation and their reintegration into the community as law-abiding citizens: CCRA , s. 3.

Having accurate information about an offender’s psychological needs and the risk the offender poses is doubtless crucial for the CSC to effectively achieve this purpose. Thus, the system’s purpose is best furthered by interpreting s. 24(1) of the CCRA broadly. [ 39 ] Accurate information about an offender’s psychological needs is also necessary for the CSC to comply with the guiding principle set out in s. 4 (

c) of the CCRA , namely that the CSC is to use necessary and proportionate measures to attain the purpose referred to in s. 3 . And interpreting s. 24(1) such that the obligation to ensure the accuracy of information applies to the results of psychological tests is consistent with the guiding principle in s. 4(

g) that the CSC’s practices must be responsive to the needs of equity- seeking groups, including persons requiring mental health care. This is because psychological tests, including some of the tests at issue in this case, are used to assess the psychological and treatment needs of such persons. [ 40 ] Interpreting s. 24(1) as applying to a broad range of information, including psychological test results and recidivism risk assessments, is also consistent with the paramount consideration for the CSC set out in s. 3.1 of the CCRA : the protection of society. Mr.

Ewert’s concern in this case is that, as a result of cultural bias, the impugned psychological tests and risk assessments incorrectly identify him as having psychopathic personality disorder or overestimate the risk that he will reoffend.

But when the CSC uses tests whose accuracy is in question, there is also a risk of the converse: that psychological or actuarial tests that are inaccurate when applied to a particular cultural group may underestimate risk, thereby undermining the protection of society. [ 41 ] Finally, the nature of the information derived from the impugned tools provides further support for its inclusion in the scope of the words “any information” in s. 24(1).

In oral argument, the Crown took the position that actuarial tests are an important tool because the information derived from them is objective and thus mitigates against bias in subjective clinical assessments. In other words, the impugned tools are considered useful because the information derived from them can be scientifically validated.

In my view, this is all the more reason to conclude that s. 24(1) imposes an obligation on the CSC to take reasonable steps to ensure that the information is accurate. [ 42 ] I accordingly reject the Crown’s argument that the obligation in s. 24(1) relates only to information-gathering and record-keeping — that is, that the CSC’s obligation extends only to ensuring that information about an offender is accurately recorded.

Had Parliament so intended, it would have been simple enough to provide that the obligation was “to take all reasonable steps to ensure that any information the CSC uses is accurately recorded”. Moreover, an obligation to ensure accurate record-keeping would be relatively easy for the CSC to meet. The obligation s. 24(1) actually creates with respect to ensuring accuracy is qualified: what is required is that “all reasonable steps” be taken to ensure that information is “as accurate . . . as possible”.

The fact that Parliament considered these qualifications necessary suggests that s. 24(1) requires more than simply good record-keeping. [ 43 ] The Crown also argues that the obligation to ensure accuracy provided for in s. 24(1) should not apply to results generated by the impugned tools, because it is inappropriate to speak of “accuracy” in the context of actuarial science.

The Crown submits that actuarial scores cannot be described as being “accurate” or “inaccurate”; rather, they may have “different levels of predictive validity, in the sense that they predict poorly, moderately well or strongly”: R.F., at para. 106. However, the obligation provided for in s. 24(1) is a general one that is necessarily described using general rather than technical language.

Even if we accept that actuarial science draws a distinction between the concepts of “accuracy” and “predictive validity”, it is not inappropriate to apply the obligation provided for in s. 24(1) to actuarial test scores: in this context, the obligation to take all reasonable steps to ensure that information is “as accurate . . . as possible” may be understood to mean that the CSC must take steps to ensure that it relies on test scores that predict risks strongly rather than those that do so poorly. [ 44 ] In any case, at trial, both parties’ experts proceeded from the premise that the accuracy of a psychological or actuarial assessment tool can be evaluated and that such an evaluation is relevant to a decision whether to use that tool.

For example, Dr. Hart testified that “validity” is a term of art in psychology that refers to “the accuracy or meaningfulness of test scores” and that “with respect to a violence risk assessment tool, the accuracy would be the ability of the test scores to forecast future violence”: A.R., vol. XX,

at pp. 6635-36. Similarly, Dr. Rice testified that, in the context of risk assessment instruments, “validity” refers to “the accuracy of measurement” or “[t]he degree to which an assessment measures what it’s supposed to measure”: “accurate predictions are said to be valid”: A.R., vol. XXI, at pp. 6770-71. That the experts understood that accuracy is a concept relevant to the impugned tools makes sense.

The PCL-R produces a numerical score that is meant to indicate whether the subject has a psychopathic personality disorder; if PCL-R scores actually reflect the subject’s state in this regard, they can, in ordinary language, be said to be accurate.

Similarly, if the results generated by assessment tools meant to assess the risk of recidivism actually correspond to the risk that the subject will reoffend, they can be said to be accurate. [ 45 ] In light of the words, the context and the purpose of s. 24(1) of the CCRA , I conclude that results generated by the impugned tools are “information” within the meaning of that provision. As a result, the CSC’s statutory obligation to take “all reasonable steps” to ensure that information is accurate applies to them.

(2) Did the CSC Take “All Reasonable Steps” to Ensure That the Information It Used Was Accurate? [ 46 ] Having determined that the obligation provided for in s. 24(1) applies to information derived from the impugned tools, the next question is whether the CSC breached that obligation. More specifically, it must be asked whether the CSC took all reasonable steps to ensure that the impugned tools produce accurate information when applied to Indigenous persons such as Mr. Ewert. [ 47 ] Mr.

Ewert bore the onus of establishing on a balance of probabilities that the CSC had breached its obligation under s. 24(1) of the CCRA . As the trial judge correctly found, this did not require Mr. Ewert to prove that the impugned tools produce inaccurate results. The question is not whether the CSC relied on inaccurate information, but whether it took all reasonable steps to ensure that it did not.

Showing that the CSC failed to take all reasonable steps in this respect may, as a practical matter, require showing that there was some reason for the CSC to doubt the accuracy of information in its possession about an offender. If the trial judge’s reasons for judgment are read as a whole, it is clear that this is what he meant when he wrote that it was sufficient for Mr. Ewert to raise a “reasonable challenge” to the “reliability” of the assessment tools: para. 82.

The trial judge stated clearly that the question to be addressed was whether the CSC’s actions were sufficient to fulfill the legislated standard of all reasonable steps to ensure accuracy, currency and completeness. He made no error in setting out the applicable legal test, and there is no indication that he applied an incorrect standard of proof: see F.H. v. McDougall , 2008 SCC 53 , [2008] 3 S.C.R. 41, at para. 54 . [ 48 ] Section 24(1) requires that the CSC take all reasonable steps to ensure the accuracy of information about an offender that it uses, not all possible steps.

What constitutes “all reasonable steps” for the purposes of s. 24(1) of the CCRA will vary with the context. The trial judge’s conclusion that the CSC failed to take the reasonable steps required in the particular circumstances of this case is amply supported by the record. [ 49 ] The trial judge noted that the CSC had long been aware of concerns regarding the possibility of psychological and actuarial tools exhibiting cultural bias.

Such concerns had in fact led the CSC to conduct research into the validity of certain actuarial tools other than the impugned tools when applied to Indigenous offenders and to cease using those other tools in respect of Indigenous inmates. Similar confirmatory research had also been contemplated by the Federal Court of Appeal in Ewert v. Canada (Attorney General) , 2008 FCA 285 , 382 N.R. 370.

As well, research into the validity of at least some of the impugned tools when applied to members of cultural minority groups had been conducted in other jurisdictions. [ 50 ] By contrast, the trial judge found that the CSC had not taken any action to confirm the validity of the impugned tools and that it had continued to use them in respect of Indigenous offenders without qualification. This was true despite the fact that research by the CSC into the impugned tools, though challenging, would have been feasible.

In these circumstances, the trial judge concluded that the CSC’s failure to take any steps to ensure the validity of the impugned tools when applied to Indigenous offenders did not meet the legislated standard set out in s. 24(1) of the CCRA . [ 51 ] Further support for the conclusion that the CSC’s inaction in this respect constituted a failure to take the requisite reasonable steps can be found in the guiding principle set out in s. 4 (

g) of the CCRA , which the trial judge highlighted as being of particular relevance to his inquiry. That provision reads as follows: Principles that guide Service 4 The principles that guide the Service in achieving the purpose referred to in

section 3 are as follows: . . . (

g) 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; [ 52 ] This is the first opportunity this Court has had to consider the

interpretation and application of s. 4 (

g) of the CCRA . The inquiry into its meaning must be guided by the modern approach to statutory

interpretation I discussed above in relation to s. 24(1) of the CCRA . [ 53 ] In my view, the application of that approach leads to the conclusion that the principle set out in s. 4 (

g) of the CCRA can only be understood as a direction from Parliament to the CSC to advance substantive equality in correctional outcomes for, among others, Indigenous offenders.

Section 4 (

g) represents an acknowledgement of the systemic discrimination faced by Indigenous persons in the Canadian correctional system. This is a long-standing concern, and one that has become more, not less, pressing since s. 4 (

g) was enacted. In these circumstances, it is critical that the CSC give meaningful effect to s. 4 (

g) in performing all of its functions. In the context of the present case, giving meaningful effect to s. 4 (

g) means, at a minimum, addressing the long-standing, and credible, concern that continuing to use the impugned risk assessments in evaluating Indigenous inmates perpetuates discrimination and contributes to the disparity in correctional outcomes between Indigenous and non-Indigenous offenders. [ 54 ] It is evident from the grammatical and ordinary sense of the words of s. 4 (

g) that this provision requires the CSC to

ensure that its practices, however neutral they may appear to be, do not discriminate against Indigenous persons. The requirement thatthe CSC respect differences and be responsive to the special needs of various groups reflects the long-standing principle of Canadian lawthat substantive equality requires more than simply equal treatment and that, indeed, “identical treatment may frequently produce seriousinequality”: Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143, at pp. 164-65. Although s. 4(

g) isnot limited to Indigenous persons, the fact that the provision specifically adverts to the needs of Indigenous persons, as well as of womenand persons requiring mental health care, indicates that, in Parliament’s view, those groups are among the most vulnerable todiscrimination in the correctional system. [55] The legislative history of the CCRA supports the view that s. 4(

g) mandates the CSC to pursue substantive equalityin correctional outcomes by respecting the unique needs of equity-seeking groups, and in particular those of Indigenous persons. Aguiding principle similar to the one now found in s. 4(

g) was among the proposals originally set out in a federal government green paperentitled Directions for Reform: A Framework for Sentencing Corrections and Conditional Release (1990): see Canada, Solicitor General,Towards a Just, Peaceful and Safe Society: The Corrections and Conditional Release Act Five Years Later — Consolidated Report(1998), at pp. ii and 7; House of Commons Debates, vol. IV, 3rd Sess., 34th Parl., November 4, 1991, at pp. 4430-31 (Hon.

Doug Lewis).One of the concerns identified in Directions for Reform was that although the correctional system had shortcomings even in “managing ahomogenous population of offenders” (p. 10), the function to which it was geared, its shortcomings were even more acute for women,Indigenous persons, racialized persons, persons with mental health issues and other distinct groups.

The authors acknowledged that theprofound effects of this disparity called into question the very effectiveness, fairness and even-handedness of the corrections system, andthey called for reforms to promote equity and predictability in the system and in decisions made about individual offenders: pp. 10 and15, see also pp. 6-7. [56] In Directions for Reform, the over-representation of Indigenous persons in the criminal justice system wasemphasized as a priority for the federal government.

The paper expressed a commitment to ensuring the equitable treatment ofIndigenous offenders by all components of that system, including the correctional system. Significantly, the authors explicitly recognizedthat equitable treatment of Indigenous offenders involves “more than the replication of programs designed for non-Aboriginal offenders”:p. 25. Inequitable treatment of Indigenous offenders in the correctional system and the conditional release process was specifically linkedto the issue of Indigenous over-representation in prison populations: p. 11. [57] The mischief s. 4(

g) was intended to remedy informs its

interpretation. This mischief is, at least in part, the troubledrelationship between Canada’s criminal justice system and its Indigenous peoples. The alienation of Indigenous persons from theCanadian criminal justice system has been well documented. Although this Court has in the past had occasion to discuss this issue mostextensively in the context of sentencing and of the

interpretation and application of s. 718.2(

e) of the Criminal Code, R.S.C. 1985, c. C-46, it is clear that the problems that contribute to this reality are not limited to the sentencing process. Numerous governmentcommissions and reports, as well as decisions of this Court, have recognized that discrimination experienced by Indigenous persons,whether as a result of overtly racist attitudes or culturally inappropriate practices, extends to all parts of the criminal justice system,including the prison system: see R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, at paras. 61-65 and 68; R. v.

Ipeelee, 2012SCC 13, [2012] 1 S.C.R. 433; Manitoba, Public Inquiry into the Administration of Justice and Aboriginal People, Report of theAboriginal Justice Inquiry of Manitoba, vol. 1, The Justice System and Aboriginal People (1991), pp. 431-73; Canada, RoyalCommission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada(1996); Canada, Commission of Inquiry into Certain Events at the Prison for Women in Kingston (1996), at pp. 219-23. [58] Parliament has recognized an evolving societal consensus that these problems must be remedied by accounting forthe unique systemic and background factors affecting Indigenous peoples, as well as their fundamentally different cultural values andworld views.

In the sentencing context, this recognition is embodied in s. 718.2(

e) of the Criminal Code, which directs sentencing judges“to undertake the process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence”:Gladue, at para. 33. Given this social context, the clear direction in s. 4(

g) of the CCRA to respect cultural and linguistic differences,together with the provisions dealing specifically with Indigenous inmates in ss. 80 through 84, should be understood to be the means bywhich Parliament chose to address this broader problem in the correctional context. [59] Indeed, the purpose of the correctional system set out in the CCRA cannot be fully achieved without giving effect tothe guiding principle set out in s. 4(g). The CSC must provide for the humane custody of offenders, using measures that are limited towhat is necessary and proportionate: CCRA, ss. 3(

a) and 4(c). It must also assist in their rehabilitation and their reintegration into thecommunity in order to contribute to the maintenance of a just, peaceful and safe society: CCRA, ss. 3 and 3.1. To achieve theseobjectives relative to Indigenous offenders, the CSC must ensure that its policies and programs are appropriate for Indigenous offendersand responsive to their needs and circumstances, including needs and circumstances that differ from those of non-Indigenous offenderpopulations.

For the correctional system, like the criminal justice system as a whole, to operate fairly and effectively, those administeringit must abandon the assumption that all offenders can be treated fairly by being treated the same way. [60] Two and a half decades have passed since this principle in s. 4(

g) was incorporated into the CCRA. Nonetheless,there is nothing to suggest that the situation has improved in the realm of corrections. Recent reports indicate that the gap betweenIndigenous and non-Indigenous offenders has continued to widen on nearly every indicator of correctional performance.

For example,relative to non-Indigenous offenders, Indigenous offenders are more likely to receive higher security classifications, to spend more timein segregation, to serve more of their sentence behind bars before first release, to be under-represented in community supervisionpopulations, and to return to prison on revocation of parole: Canada, Office of the Correctional Investigator, Spirit Matters: AboriginalPeople and the Corrections and Conditional Release Act: Final Report (2012); Canada, Office of the Correctional Investigator, AnnualReport 2015-2016 (2016), at pp. 43-44; Canada, Office of the Auditor General, 2016 Fall Reports of the Auditor General of Canada:Report 3 — Preparing Indigenous Offenders for Release — Correctional Service Canada (2016). [61] It is thus clear that the concerns that motivated the incorporation of the principle set out in s. 4(

g) into the CCRA areno less relevant today than they were when the CCRA was enacted. In the face of ongoing disparities in correctional outcomes forIndigenous offenders, it is crucial, to ensure that the correctional system functions fairly and effectively, that the direction set out in s.4(

g) be given meaningful effect. Although many factors contributing to the broader issue of Indigenous over-incarceration and alienationfrom the criminal justice system are beyond the CSC’s control, there are many matters within its control that could mitigate these

pressing societal problems: see Spirit Matters , at pp. 6 and 13. Taking reasonable steps to ensure that the CSC uses assessment tools that are free of cultural bias would be one. [ 62 ] Against this backdrop of the purposes of s. 4 (

g) of the CCRA , I will now turn to how this provision can inform the inquiry into what was required of the CSC in the context of this case. In my view, both the clear direction expressed in s. 4 (

g) and the underlying rationale for that direction strongly support the conclusion that the CSC’s inaction with respect to the concerns raised about the risk assessment instruments at issue in this appeal fell short of what s. 24(1) of the CCRA required it to do. [ 63 ] The trial judge found that the impugned tools were susceptible to cultural bias. He also found that, although the CSC was aware of this concern, it had not conducted any research to confirm the validity of the tools when used in respect of Indigenous inmates.

The CSC failed to address a concern that the psychological and risk information generated by these tools — information that influences the CSC’s decisions — may be less accurate in the case of Indigenous inmates. This failure is contrary to the direction set out in s. 4 (

g) that correctional practices must respect cultural and linguistic differences. [ 64 ] The failure to inquire into the validity of the impugned tools also risked undermining the purposes of s. 4 (

g) and of the CCRA as a whole. The trial judge found that scores derived from the impugned tools were considered in CSC decisions on key aspects of Mr. Ewert’s incarceration, including those related to his security classification, to escorted temporary absences and to parole.

The trial judge’s findings therefore show that these tools are used for a variety of purposes, including in areas in which Indigenous inmates reportedly lag behind non-Indigenous inmates. [ 65 ] Thus, the clear danger posed by the CSC’s continued use of assessment tools that may overestimate the risk posed by Indigenous inmates is that it could unjustifiably contribute to disparities in correctional outcomes in areas in which Indigenous offenders are already disadvantaged.

For example, if the impugned tools overestimate the risk posed by Indigenous inmates, such inmates may experience unnecessarily harsh conditions while serving their sentences, including custody in higher security settings and unnecessary denial of parole. Overestimation of the risk may also contribute to reduced access to rehabilitative opportunities, such as a loss of the opportunity to benefit from a gradual and structured release into the community on parole before the expiry of a fixed-term sentence.

Another effect of an overestimation of the risk is that it could bar an inmate from participation in Indigenous-specific programming that is contingent on an offender having a low security classification or being eligible for an escorted temporary absence: see generally Spirit Matters , at pp. 3-4 and 29; Annual Report 2015-2016 , at p. 44. Thus, any overestimation of the risk posed by Indigenous offenders would undermine the purpose of s. 4(

g) of the CCRA of promoting substantive equality in correctional outcomes for Indigenous inmates and would also frustrate the correctional system’s legislated purpose of providing humane custody and assisting in the rehabilitation of offenders and their reintegration into the community. [ 66 ] Given this context, it is crucial that the CSC heed the directive set out in s. 4 (

g) of the CCRA , the effect of which is that the CSC’s practices must not perpetuate systemic discrimination against Indigenous persons. In the context of the case at bar, this required, at the very least, that the CSC take seriously the credible concerns that have been repeatedly raised according to which information derived from the impugned tools is of questionable validity with respect to Indigenous inmates because the tools fail to account for cultural differences.

By disregarding the possibility that these tools are systematically disadvantaging Indigenous offenders and by failing to take any action to ensure that they generate accurate information, the CSC fell short of what it is required to do under s. 24(1) of the CCRA . [ 67 ] Although this Court is not now in a position to define with precision what the CSC must do to meet the standard set out in s. 24(1) in these circumstances, what is required, at a minimum, is that if the CSC wishes to continue to use the impugned tools, it must conduct research into whether and to what extent they are subject to cross-cultural variance when applied to Indigenous offenders.

Any further action the standard requires will depend on the outcome of that research. Depending on the extent of any cross-cultural variance that is discovered, the CSC may have to cease using the impugned tools in respect of Indigenous inmates, as it has in fact done with other actuarial tools in the past. Alternatively, the CSC may need to qualify or modify the use of the tools in some way to ensure that Indigenous inmates are not prejudiced by their use. B. Did the CSC’s Reliance on Results Generated by the Impugned Tools Constitute an Unjustified Infringement of Mr. Ewert’s Rights Under

Section 7 of the Charter ? [ 68 ] To establish that a law or a government action violates s. 7 of the Charter , a claimant must show that the law or action interferes with, or deprives him or her of, life, liberty or security of the person and that the deprivation is not in accordance with the principles of fundamental justice: Carter v. Canada (Attorney General) , 2015 SCC 5 , [2015] 1 S.C.R. 331, at para. 55 . [ 69 ] In this Court, Mr.

Ewert argues that the trial judge was correct to find that the CSC’s use of the impugned tools deprived him of liberty and security of the person in a way that was contrary to the principles of fundamental justice prohibiting arbitrariness and overbreadth.

In the alternative, he submits that this Court should recognize a new principle of fundamental justice — that the state must obey the law — and should find that the CSC’s use of the impugned tools was contrary to that principle because it constituted a breach of s. 24(1) of the CCRA . [ 70 ] Assuming, although I will not so decide, that the CSC’s reliance on the impugned tools in making decisions about Mr. Ewert engaged a liberty interest or security of the person interest protected by s. 7 of the Charter , I conclude that Mr.

Ewert has not established that the CSC’s reliance on the tools violated the principle of fundamental justice against arbitrariness or that against overbreadth. I also conclude that Mr. Ewert has not established that this Court should recognize a new principle of fundamental justice in this case. Therefore, Mr. Ewert has not established an infringement of his rights under s. 7 of the Charter .

(1) Mr. Ewert Has Not Established That the CSC’s Reliance on the Impugned Tools Violated the Prohibition Against Arbitrariness or That Against Overbreadth [ 71 ] This Court discussed the prohibitions against arbitrariness and overbreadth as principles of fundamental justice in Canada (Attorney General) v. Bedford , 2013 SCC 72 , [2013] 3 S.C.R. 1101, at paras. 107 and 111-13 (citations omitted):

Although there is significant overlap between these three principles, and one law may properly be characterized by more than one of them, arbitrariness, overbreadth, and gross disproportionality remain three distinct principles that stem from what Hamish Stewart calls “failures of instrumental rationality” — the situation where the law is “inadequately connected to its objective or in some sense goes too far in seeking to attain it” . . . .

As Peter Hogg has explained: The doctrines of overbreadth, disproportionality and arbitrariness are all at bottom intended to address what Hamish Stewart calls “failures of instrumental rationality”, by which he means that the Court accepts the legislative objective, but scrutinizes the policy instrument enacted as the means to achieve the objective. If the policy instrument is not a rational means to achieve the objective, then the law is dysfunctional in terms of its own objective. . . .

Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law’s purpose. There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or security of the person . . . . A law that imposes limits on these interests in a way that bears no connection to its objective arbitrarily impinges on those interests. . . .

Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part . At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some , but not all, of its impacts. . . . Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others.

Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual .

Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter . [Emphasis in original.] [ 72 ] In the instant case, the trial judge concluded that the CSC had infringed Mr. Ewert’s rights under s. 7 of the Charter , because its reliance on the impugned tools in making decisions about Indigenous persons was contrary to the principles against arbitrariness and overbreadth. His conclusions on arbitrariness and overbreadth can be considered together, because they were based on the same underlying findings.

The trial judge found that the objective of the CSC’s decision-making was to “reliably predict an offender’s risk of reoffending as accurately as possible in the interests of public safety”: para. 96. In this Court, Mr. Ewert does not take issue with this characterization of the relevant objective. The trial judge accepted Dr. Hart’s evidence that the impugned tools were susceptible to cultural bias and that there was no evidence that scores generated by those tools predict the risk of recidivism as accurately for Indigenous inmates as for non-Indigenous inmates.

In the trial judge’s view, two conclusions flowed from these findings. First, given the absence of evidence of accuracy, the CSC’s continued use of the impugned tools in respect of Indigenous offenders was inconsistent with the objective of predicting the risk posed by offenders and was therefore arbitrary.

Second, because the CSC’s reliance on the impugned tools with respect to Indigenous offenders was arbitrary but its reliance on them with respect to non-Indigenous offenders was unobjectionable, its practice of using those tools for the entire inmate population without distinguishing between Indigenous and non- Indigenous inmates was overbroad. [ 73 ] The trial judge reasonably concluded that, given the concerns relating to cultural bias, it was problematic for the CSC to continue to use the impugned tools without qualification or caution. Be that as it may, to establish arbitrariness or overbreadth, Mr.

Ewert had to show on a balance of probabilities that the CSC’s practice of using the impugned tools with respect to Indigenous offenders had no rational connection to the relevant government objective. The fact that a government practice is in some way unsound or that it fails to further the government objective as effectively as a different course of action would is not sufficient to establish that the government practice is arbitrary.

The finding that there is uncertainty about the extent to which the tests are accurate when applied to Indigenous offenders is not sufficient to establish that there is no rational connection between reliance on the tests and the relevant government objective. Indeed, taken at its highest, Dr. Hart’s expert evidence does not support a finding that there is no such rational connection. Dr. Hart testified that the tools were susceptible to cultural bias. But when asked directly about the likely magnitude of any cultural bias, he was unable

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