20070112
Docket: T-1974-05
Citation: 2007 FC 13
Ottawa,
Ontario, January 12, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
JEFF
EWERT
Applicant
and
ATTORNEY GENERAL OF CANADA
AND THE COMMISSIONER OF THE
CORRECTIONAL SERVICE OF CANADA
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7, in which the Applicant advances Charter
issues and constitutional questions to challenge the use of risk assessment
tools on Aboriginal inmates. The Applicant also seeks judicial review of the
third level decision by Gerry Hooper of the internal offender grievance process
dated June 10, 2005. The Applicant appears on his own behalf.
I. ISSUES
[2]
The
issues raised in this judicial review application are as follows:
a) Did
the Respondent, the Commissioner of the Correctional Service of Canada err in
its response to the Applicant’s third level grievance?
b) Does
the use of actuarial assessment tools to evaluate the Applicant’s risk level
infringe the Applicant’s rights under sections 7, 9, 12 or 15 of the Charter?
If so, is the infringement demonstrably justifiable in a free and democratic
society pursuant to section 1 of the Charter?
c) Does
the Court have jurisdiction to grant the relief sought restricting the
discretion of the Respondents with respect to the management of its federal
inmate population?
d) The
constitutional questions posed by the Applicant are found at Annex "A
"of these reasons.
[3]
For
the following reasons, the present application shall be dismissed.
II. BACKGROUND
[4]
The
Applicant is an Aboriginal offender serving his first federal term of two
concurrent life sentences for second degree murder and attempted murder, in
relation to two separate incidents which involved sexual assault. The Applicant
has been incarcerated since July 10, 1984, and was eligible for parole after
having served a minimum of 15 and 7 years respectively.
[5]
The
Applicant has been in prison for 22 years, over 15 of which were served in
maximum security institutions. However, the Applicant has at times been
classified as minimum or medium security. The Applicant alleges that the
fluctuation in his security classification is done at the whim and caprice of
the Respondent, Correctional Service of Canada Staff (CSC) based largely on the
use of the impugned risk assessment tools, including the Violence Risk
Appraisal Guide (VRAG), Psychopathy Checklist-Revised (PCL-R), Offender Intake
Assessment (OIA), Custody Rating Scale (CRS) and the Statistical Information on
Recidivism Scale (SIR).
[6]
Although the Applicant has been eligible for full parole since
1999, he has repeatedly waved his legislative Full Parole reviews, citing that
he was not prepared to reintegrate.
[7]
On
April 14, 2000, the Applicant filed an inmate complaint in which he claimed
that the SIR, Psychopathy Checklist (PCL) and VRAG actuarial risk assessment
tools along with the PCL-R used by CSC to classify and place offenders should
not be applied to him as a “native” person. The Applicant’s complaint alleged
that these assessment tools were “normed” for the general prison population
only and therefore should not be applied to specific ethnic, gender or age
groups, including Aboriginal peoples.
[8]
This
grievance was dismissed in June 2000 pending further investigation. On June 10,
2000, the Applicant filed another grievance on the same subject matter, seeking
the same relief. This grievance was in turn denied at the first level on the
ground that the SIR was not used in CSC’s assessment of the Applicant. The
decision also upheld the practice that PCL-R and VRAG were valid assessment
tools for native prisoners.
[9]
The
decision stated as follows:
Your
grievance has been reviewed at the first level.
While it is not policy to use the SIR
scale on Native offenders this scale is valid (predicts equally well for
natives and non-natives) for Native men. The SIR scale, however, was not used
in your case and its “removal” from your file is thus a moot point as was
explained to you by Dr. Boer on July 21, 2000.
The PCL-R is valid for Native Offenders.
Native men comprised 15% of the original sample and no systematic differences
were found between Native and non-Native men. In addition, your score was
assessed three times, each time giving the same score, and is therefore a
reliable result in each case. There is no reason to remove it from your file.
The VRAG test authors did not analyze
ethnicity differences in their data and, in fact, Dr. Rice thinks that Native
men were not a large part of the sample. Nonetheless, Dr. Rice can see no
particular reason why the CVRAG would be invalid for Native men. Given that the
prevalence of risk factors and outcomes may vary significantly as a function of
ethnicity or culture, the association between test scores and recidivism may
vary (i.e., the test may over or under predict risk). Certainly in your case
the VRHG suggests a lower level of violence risk than the PCL-R and this
suggests no logical grounds for removal of such information from your file.
[10]
The
Applicant took the matter to the second level of the grievance process and
supplemented his first level claims with reference to a variety of academic
studies and research articles to support the position that these assessments
were inappropriate for use with Aboriginal offenders. However, this second
level grievance was denied on December 20, 2000. The decision stated that the
VRAG and PCL-R are considered to be useful predictors of recidivism, and are
only a few of the tools utilized in the process of determining the risk the
offender presents; a process that includes provision for Native Elder
assessment when necessary.
[11]
On
November 22, 2002, the Applicant filed a third level grievance on the same
grounds to which he added the Sex Offender Risk Assessment Guide (SORAG) and
the Violence Risk – Sex Offenders (VRS-SO). The Applicant alleged that these
risk assessment instruments were designed by and for western people and when
they are used in assessing Aboriginal offenders they produce a discriminatory
effect that places Aboriginal prisoners in a disadvantaged position in the
federal correctional system. The Applicant characterised these assessment tools
as racist and a contributing factor to the over representation of Aboriginal
peoples in Canadian correctional institutions.
[12]
The
CSC responded on February 21, 2003, indicating that the complaints would
require further investigation. In this vein, CSC informed the Applicant that it
had sought advice from the Alberta Board of Psychologists (ABP) regarding the
validity of applying the assessment tools to Aboriginal inmates. On June 13,
2003, the Director General, Rights Redress and Resolution advised the Applicant
that his grievance was dismissed. The letter indicated that the impugned
assessment tools were part of a multi-method assessment process subject to
professional judgment of those who perform the risk assessments. Moreover, CSC
had undertaken a review of assessment tools for Aboriginal offenders and
modifications would occur if necessary.
[13]
On
September 13, 2004, the Applicant submitted another inmate grievance to the
third level. This grievance repeated the allegations and sought additional
relief in that he wanted his reintegration into the community fast tracked. The
Applicant justified this relief based upon alleged violations of the Charter.
The Applicant sent a follow-up presentation alleging that CSC had
improperly delayed processing his September 13, 2004 claim.
[14]
On
June 10, 2005, the decision on the Applicant’s grievance was rendered.
III. JUDICIAL
HISTORY
[15]
On
August 4, 2005, the Applicant commenced an action in Federal Court (T-1350-05)
for the same relief as sought under the inmate grievance processes. In a
decision dated September 30, 2005, my colleague Justice Frederick Gibson allowed
a motion by the Defendants and severed those issues which were more properly
the subject matter of a judicial review and stayed the action T‑1350-05
pending the outcome of the present judicial review, which the Applicant filed
on November 1, 2005.
[16]
However,
prior to filing this application for judicial review, the Applicant brought a
motion for injunctive relief in action T-1350-05 seeking to prevent his
transfer to a maximum security federal correctional institution until this
matter is finally decided. This motion was dealt with as part of T-1974-05 and
dismissed with costs by Justice Judith Snider on November 1, 2005. The
Applicant brought another motion following the order of Justice Snider in which
he sought to amend this judicial review to include the cause of action advanced
in action T-1350-05 and required a review of decisions regarding the
Applicant’s classification and placement. A decision on this motion has not as
yet been rendered.
IV. DECISION
UNDER REVIEW
[17]
The
impugned decision by G. R. Hooper dated June 10, 2005, is brief and bears
repeating in its entirety, as follows:
Mr. Ewert you submitted a grievance
concerning the use of actuarial tests on native offenders in the Correctional
Service of Canada. Please accept our apologies for the delay in responding to
your grievance.
You submitted a grievance on the above
issue in 2003. At that time, you were advised in writing that the Correctional
Service of Canada was in the process of having these instruments reviewed and
evaluated through its Research Branch. On June 13, 2003 you received a letter
from Ms. Shereen Benzvy Miller, the Director General, Rights, Redress and
Resolution, Correctional Service of Canada. This correspondence provided you
with a detailed explanation regarding the use of actuarial instruments on
offenders, the process of assessment CSC follows and the current initiative
being undertaken by the Research Branch to review the appropriateness of CSC
intake assessment tools for Aboriginal offenders. This process is currently ongoing.
Once the evaluation of these measurements
has been undertaken by CSC [it] will then determine whether any changes or
modification(s) will be required to the current actuarial scales being used for
assessment purposes.
Until such time as this review is
completed, no further action is required.”
[emphasis in the original]
V. RELEVANT
LEGISLATION
[18]
The
purpose of the Corrections and Conditional Release Act, 1992, c. 20 (the
Act) is set out in section 3, whereas section 4 provides the principles
that guide the Service. These provisions are as follows:
Purpose
3. The purpose of the federal correctional
system is to contribute to the maintenance of a just, peaceful and safe
society by
(a) carrying
out sentences imposed by courts through the safe and humane custody and
supervision of offenders; and
(b) assisting
the rehabilitation of offenders and their reintegration into the community as
law-abiding citizens through the provision of programs in penitentiaries and
in the community.
Principles
that guide the Service
4. The principles that shall guide the
Service in achieving the purpose referred to in section 3 are
(a) that the
protection of society be the paramount consideration in the corrections
process;
(b) that the
sentence be carried out having regard to all relevant available information,
including the stated reasons and recommendations of the sentencing judge,
other information from the trial or sentencing process, the release policies
of, and any comments from, the National Parole Board, and information
obtained from victims and offenders;
(c) that the
Service enhance its effectiveness and openness through the timely exchange of
relevant information with other components of the criminal justice system,
and through communication about its correctional policies and programs to
offenders, victims and the public;
(d) that the
Service use the least restrictive measures consistent with the protection of
the public, staff members and offenders;
(e) that
offenders retain the rights and privileges of all members of society, except
those rights and privileges that are necessarily removed or restricted as a
consequence of the sentence;
(f) that the
Service facilitate the involvement of members of the public in matters
relating to the operations of the Service;
(g) that
correctional decisions be made in a forthright and fair manner, with access
by the offender to an effective grievance procedure;
(h) that
correctional policies, programs and practices respect gender, ethnic,
cultural and linguistic differences and be responsive to the special needs of
women and aboriginal peoples, as well as to the needs of other groups of
offenders with special requirements;
(i) that
offenders are expected to obey penitentiary rules and conditions governing
temporary absence, work release, parole and statutory release, and to
actively participate in programs designed to promote their rehabilitation and
reintegration; and
(j) that staff
members be properly selected and trained, and be given
(i)
appropriate career development opportunities,
(ii) good
working conditions, including a workplace environment that is free of
practices that undermine a person’s sense of personal dignity, and
(iii)
opportunities to participate in the development of correctional policies and
programs.
|
Objet
3.
Le système
correctionnel vise à contribuer au maintien d’une société juste, vivant en
paix et en sécurité, d’une part, en assurant l’exécution des peines par des
mesures de garde et de surveillance sécuritaires et humaines, et d’autre
part, en aidant au moyen de programmes appropriés dans les pénitenciers ou
dans la collectivité, à la réadaptation des délinquants et à leur réinsertion
sociale à titre de
citoyens
respectueux des lois.
Principes
de fonctionnement
4.
Le Service
est guidé, dans l’exécution de ce mandat, par les principes qui suivent :
a)
la protection de la société est le critère prépondérant lors de l’application
du processus correctionnel;
b)
l’exécution de la peine tient compte de toute information pertinente dont le
Service dispose, notamment des motifs et recommandations donnés par le juge
qui l’a prononcée, des renseignements obtenus au cours du procès ou dans la
détermination de la peine ou fournis par les victimes et les délinquants,
ainsi que des directives ou observations de la Commission nationale des
libérations conditionnelles en ce qui touche la libération;
c)
il accroît son efficacité et sa transparence par l’échange, au moment
opportun, de renseignements utiles avec les autres éléments du système de
justice pénale ainsi que par la communication de ses directives d’orientation
générale et programmes correctionnels tant aux délinquants et aux victimes
qu’au grand public;
d)
les mesures nécessaires à la protection du public, des agents et des
délinquants doivent être le moins restrictives possible;
e)
le délinquant continue à jouir des droits et privilèges reconnus à tout
citoyen, sauf de ceux dont la suppression ou restriction est une conséquence
nécessaire de la peine qui lui est infligée;
f)
il facilite la participation du public aux questions relatives à ses
activités;
g)
ses décisions doivent être claires et équitables, les délinquants ayant accès
à des mécanismes efficaces de règlement de griefs;
h)
ses directives d’orientation générale, programmes et méthodes respectent les
différences ethniques, culturelles et linguistiques, ainsi qu’entre les
sexes, et tiennent compte des besoins propres aux femmes, aux autochtones et à
d’autres groupes particuliers;
i)
il est attendu que les délinquants observent les règlements pénitentiaires et
les conditions d’octroi des permissions de sortir, des placements à
l’extérieur et des libérations conditionnelles ou d’office et qu’ils
participent aux programmes favorisant leur réadaptation et leur réinsertion
sociale;
j)
il veille au bon recrutement et à la bonne formation de ses agents, leur
offre de bonnes conditions de travail dans un milieu exempt de pratiques
portant atteinte à la dignité humaine, un plan de carrière avec la
possibilité de se perfectionner ainsi que l’occasion de participer à
l’élaboration des directives d’orientation générale et programmes
correctionnels.
|
[19]
The
classification of inmates as maximum, medium or minimum is governed by section
30 of the Act, which states as follows:
30. (1) The Service shall assign a security
classification of maximum, medium or minimum to each inmate in accordance
with the regulations made under paragraph 96 (z. 6).
(2) The Service shall give each inmate
reasons, in writing, for assigning a particular security classification or
for changing that classification.
|
30. (1) Le Service assigne une cote de sécurité
selon les catégories dites maximale, moyenne et minimale à chaque détenu
conformément aux règlements d’application de l’alinéa 96z.6).
(2) Le Service doit donner, par
écrit, à chaque détenu les motifs à l’appui de l’assignation d’une cote de
sécurité ou du changement de celle-ci.
|
[20]
The
purpose of administrative segregation is found in section 31 of the Act:
Administrative
Segregation: Purpose:
31. (1) The purpose of administrative
segregation is to keep an inmate from associating with the general inmate
population.
Duration
(2) Where an inmate is in administrative
segregation in a penitentiary, the Service shall endeavour to return the
inmate to the general inmate population, either of that penitentiary or of
another penitentiary, at the earliest appropriate time.
Grounds for
confining inmate in administrative segregation
(3) The institutional head may order that
an inmate be confined in administrative segregation if the institutional head
believes on reasonable grounds
(a) that
(i) the inmate
has acted, has attempted to act or intends to act in a manner that
jeopardizes the security of the penitentiary or the safety of any person, and
(ii) the
continued presence of the inmate in the general inmate population would
jeopardize the security of the penitentiary or the safety of any person,
(b) that the
continued presence of the inmate in the general inmate population would
interfere with an investigation that could lead to a criminal charge or a
charge under subsection 41(2) of a serious disciplinary offence, or
(c) that the
continued presence of the inmate in the general inmate population would
jeopardize the inmate’s own safety, and the institutional head is satisfied
that there is no reasonable alternative to administrative segregation.
|
Isolement préventif
Objet :
31.
(1)
L’isolement préventif a pour but d’empêcher un détenu d’entretenir des
rapports avec l’ensemble des autres détenus.
Retour
parmi les autres détenus
(2) Le détenu en isolement
préventif doit être replacé le plus tôt possible parmi les autres détenus du
pénitencier où il est incarcéré ou d’un autre pénitencier.
Motifs
d’isolement préventif
(3) Le directeur du pénitencier
peut, s’il est convaincu qu’il n’existe aucune autre solution valable,
ordonner l’isolement préventif d’un détenu lorsqu’il a des motifs
raisonnables de croire, selon le cas :
a)
que celui-ci a agi, tenté d’agir ou a l’intention d’agir d’une manière
compromettant la sécurité d’une personne ou du pénitencier et que son
maintien parmi les autres détenus mettrait en danger cette sécurité;
b)
que son maintien parmi les autres détenus peut nuire au déroulement d’une
enquête pouvant mener à une accusation soit d’infraction criminelle soit
d’infraction disciplinaire grave visée au paragraphe 41(2);
c)
que le maintien du détenu au sein de l’ensemble des détenus mettrait en
danger sa sécurité.
|
[21]
The
factors to consider when determining an inmate’s security classification are listed
in Section 17 of the Corrections and Conditional Release Regulations,
SOR/92-620 (the Regulations):
Security
Classification
17. The Service shall take the following
factors into consideration in determining the security classification to be
assigned to an inmate pursuant to section 30 of the Act:
(a) the
seriousness of the offence committed by the inmate;
(b) any
outstanding charges against the inmate;
(c) the
inmate's performance and behaviour while under sentence;
(d) the
inmate's social, criminal and, where available, young-offender history;
(e) any
physical or mental illness or disorder suffered by the inmate;
(f) the
inmate's potential for violent behaviour; and
(g) the
inmate's continued involvement in criminal activities.
|
Cote
de sécurité
17. Le Service détermine la
cote de sécurité à assigner à chaque détenu conformément à l'article 30 de la
Loi en tenant compte des facteurs suivants :
a)
la gravité de l'infraction commise par le détenu;
b)
toute accusation en instance contre lui;
c)
son rendement et sa conduite pendant qu'il purge sa peine;
d)
ses antécédents sociaux et criminels, y compris ses antécédents comme jeune
contrevenant s'ils sont disponibles;
e)
toute maladie physique ou mentale ou tout trouble mental dont il souffre;
f)
sa propension à la violence;
g)
son implication continue dans des activités criminelles.
|
VI. ANALYSIS
A. Did the Respondent, the
Commissioner of the Correctional Service of Canada err in its
response to the Applicant’s third level grievance?
(1) Standard
of Review
[22]
I
must first proceed with a pragmatic and functional analysis in order to
determine the applicable standard of review in this case. In Dr. Q v.
College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R.
226, the Supreme Court of Canada established the following four factors to
consider:
a)
Presence of a privative clause or right of appeal
[23]
The
Act does not contain a privative clause. There are extensive internal
review mechanisms through which inmates can pursue grievances, as was exercised
in this case. The silence of the legislation renders this factor neutral in the
overall functional and pragmatic analysis and implies deference by the reviewing
Court where the decision is fact based as it is in this instance.
b)
Relative expertise of the tribunal vis-à-vis the Court
[24]
The
legislator has imbued those responsible for the management and maintenance of
federal correctional institutions and their inmates with a high degree of
training and expertise in such matters, which calls for an increased level of
deference by the reviewing Court. Justice George Addy said it best in Re
Cline (1981), Court No. T-894-81 (F.C.T.D.) as follows:
I would like to add that, except in clear
and unequivocal cases of serious injustice coupled with mala fides or
unfairness, judges, as a general rule, should avoid the temptation of using
their ex officio wisdom in the solemn, dignified and calm atmosphere of
the courtroom and substituting their own judgment for that of experienced
prison administrators. The latter are truly in the firing-line and are charged
by society with the extra-ordinarily difficult and unenviable task of
maintaining order and discipline among hundreds of convicted criminals who, as
a class, are not generally reputed to be the most disciplined or emotionally
stable members of society and who, by the mere fact of incarceration, are being
forcibly deprived of many of their most fundamental freedoms. Similarly, courts
should avoid laying down any detailed rules of conduct for these administrators
since courts have very little practical knowledge of the problems involved in
maintaining prison security generally or of the specific tensions, pressures
and dangers existing in any particular prison or in any given situation. Such
detailed rules of conduct, if any, should be left to the legislators or better
still, to those possessing the required expertise who might be charged by the
legislators with the issuing of regulations pertaining to these matters.
c)
The purpose of the statute
[25]
Section
3 of the Act outlines the purpose of the federal correctional system, which has
a dual aim: to protect the public and rehabilitate offenders. The
classification and placement of the offender during the intake assessment and
incarceration processing are key elements in achieving these goals. In order to
do so, Respondent CSC staff must conduct a thorough assessment based on all the
available facts and other information on the offender and seek to find the
right balance between the best interests of the inmate with those of society at
large. This requires not only a careful review of facts but also relies on the
appropriate application of various policies and guiding principles, including
the Act and the Commissioner’s Directives and Standard Operating
Practices.
[26]
As
noted by Madam Justice McLaughlin in Dr. Q, above “this factor of
the analysis weighs in favour of increased deference”.
d)
The nature of the question
[27]
The
nature of the question at issue demands a high degree of deference. Not only is
the decision at the third level grievance largely fact specific, but it is also
based on a review of the actuarial assessment tools used by the Respondent both
on the Applicant and on the wider Aboriginal inmate population.
[28]
As
a result of this review of the four factors in the pragmatic and functional
analysis, the standard of review to be applied in this judicial review is that
of patent unreasonableness.
(2) Was the
third level grievance decision patently unreasonable?
a) Inordinate delay
[29]
Although
it is not coached in these terms, the Applicant raises a procedural fairness
matter with respect to the delay in obtaining a decision. I believe I must
address this matter before turning to the other issues. I must also note at
the outset that the Federal Court of Appeal has established that the standard
of review and the application of the pragmatic and functional analysis as set
out in Dr. Q, above, apply only to substantive issues and not procedural
matters (see Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056
(F.C.A.) (QL) at paras. 40-85).
[30]
The
test for establishing whether inordinate delay has occurred is set out in
Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307,
where the Supreme Court of Canada held that unreasonable delay causing serious
prejudice could amount to an abuse of process. However, as stated in paragraph
133:
[…] There must be more than merely a
lengthy delay for an abuse of process; the delay must have caused actual
prejudice of such magnitude that the public's sense of decency and fairness is
affected. […]
[31]
With
respect to the 23-month delay in receiving the decision following the
Applicant’s grievance of October 25, 2000, it has been held time and again that
delay alone is not sufficient to reverse a decision. In Niaki v. Canada (Attorney
General),
[2006] F.C.J. No. 1393 (F.C.) (QL), at paragraph 44, my colleague Justice Yves de
Montigny held:
[…] To succeed in an allegation of delay,
an applicant must demonstrate two things: that there has been inordinate delay,
and that the applicant has suffered real prejudice as a result of the delay. In
this case, the entire process (from the filing of the first complaint to the
release of the investigation report) took approximately 23 months. This is
certainly a long delay, no doubt occasioned at least in part by the two changes
of investigator, but I am not convinced that it is inordinate. In any case, Mr.
Niaki has failed to present any evidence that he suffered any real prejudice as
a result of that delay. While I am prepared to accept that the applicant may
have been under stress during that period, I am not prepare to hold that the
delay was abusive and that it caused actual prejudice of such magnitude that it
would offend "the community's sense of decency and fairness," to use
the Supreme Court's language in Blencoe v. British Columbia (Human Rights
Commission), [2000] 2 S.C.R. 307 at paragraph 132.
[32]
Applying
this test to the case at bar, I find that while there is a five-year span
between April 14, 2000 when the Applicant filed his first grievance to the
ultimate decision on June 10, 2005, this delay was not inordinate when one
considers the complexity of the matter and the fact that the Applicant filed at
least four grievances on the same subject matter during that period, as set out
in Table 1 below:
Table 1
Date Grievance Filed
|
Date Decision Rendered
|
Delay
|
1. April 14, 2000
|
September 6, 2000
|
5 months
|
2. June 10, 2000
|
August 8, 2000
|
2 months
|
3. October 25, 2000
|
December 20, 2000
|
2
months (decision received October 25, 2002)
|
4. October 26, 2002
|
February 21, 2003
|
4 months
|
5. September 13, 2004
|
Received on October
1, 2004
|
2 weeks
|
6. November 25, 2004
|
June 10, 2005
|
7 months
|
[33]
What
is troubling to the Court is the almost two-year delay before the receipt of
the Respondent’s decision rendered on December 20, 2000, which he received
October 25, 2002. However, I find reasonable the Respondent’s explanation that
it was unaware that the Applicant did not receive the decision dated December
20, 2000. In addition, I note that the Applicant failed to bring this to the
attention of the Respondent for a period of 23 months. This inaction on the
part of the Applicant leaves the impression that the Applicant suffered no real
prejudice as a result of the delay, such that it would shock the conscience of
the community. The Respondent reports as follows (Applicant’s Affidavit, Exhibit
C, Tab 6):
There was no reason for you (the
Applicant] not to have pursued the second level response through the
Institutional Grievance Coordinator’s office when you did not receive it as
expected or to have submitted a separate third level grievance indicating that
the response was late. Either action would have drawn attention to the matter
and it would have been resolved then.
[34]
Moreover,
the Respondent has apologized to the Applicant for the delay as stated in the
response by Mr. Hooper dated June 10, 2005. I therefore consider this matter
settled as the Applicant failed to take appropriate action to notify the
Respondent of the lack of response for a period of 23 months and has failed to avail
himself of the Respondent’s grievance redress mechanisms before bringing the
matter to the Court’s attention.
b) Submissions of the Applicant
[35]
The
Applicant has four main
arguments.
[36]
The
first argument: a written opinion (November 28, 2005) by Dr. Menzies on the
accuracy of the risk assessment instruments used by CSC on federal prisoners.
Dr. Menzies, a Ph.D. in Sociology from the University of Toronto, is a professor in the
Department of Humanities at Simon Fraser University British Columbia. In his conclusion, he
states the following:
IN
CONCLUSION, the Correctional Service of Canada has failed to demonstrate the
accuracy of the risk assessment instruments that it routinely enlists in the
classification of federal prisoners, and in the imposition of a range of
conditions on their carceral sentences. Further, no authoritative data exist
to establish that such instruments are applicable specifically to Aboriginal
offenders. At no time, to my knowledge, have the VRAG, PCL-R, SIR, Static 99,
CRS and other actuarial risk instruments received the rigorous cross-validation
testing that would be necessary to assess their relevance to the subpopulation
of Indigenous people serving time in Canadian federal penitentiaries. Coupled
with the disproportionately high risk ratings assigned to Aboriginal inmates
and their over-representation in Canadian prisons, a significant likelihood
exists that the deployment of these highly fallible and under-analyzed risk
assessment instruments has had a direct and discriminatory impact on the rights
and freedoms of Indigenous prisoners.
[37]
The
second one: a document filed by the Respondents called "Do not send to
Inmate" (Respondents’ Record, p. 122) as well as the following e-mail
message (Respondents’ Record, p. 129):
-Original Message-
From: Mason, Randolph (NHQ-AC)
Sent: Monday, January 20, 2003,
9:59 AM
To: Sonnichsen Paul
(NHQ-AC)
Subject: RE: Inmate Grievance re use of
PCL-R and VRAG instruments.
Paul:
This is timely in that we have already
flagged this issue as a concern. In fact, the Research Branch (NHQ) has already
begun some work on this – if only in a preliminary capacity. I suspect that the
inmate will win his case and that this will force our hand as a Service. And
rightly so! It has always been our position that the inappropriate use of
actuarial scales and measures adversely affects our Aboriginal population. In
fact, we contend that the use of these measures artificially inflates need and
risk ratings.
Randy
Mason.
[38]
The
third one: the
assessment tools applied to him are inappropriate. For example, his score in
2000 for "the computed security classification" went from
"minimum" (Applicant’s Record, p. 85) to “medium" (Applicant’s
Record, p. 87) in 2003 although he was absolutely charge free, had completed a
second round of intensive treatment, two counselling certifications and two
alternatives to violence modules.
[39]
The
fourth one: the SIR was applied to him in 1995. The Applicant explained in
great details the negative results obtained by this assessment tool used on him
and alleges by citing some extracts in the Respondents’ Record that this tool
should not have been applied because he is an Aboriginal inmate.
[40]
Therefore, the Applicant submits
that the assessment tools are harmful to him and other Aboriginal inmates.
c) Submissions of the Respondents
[41]
The
Respondents allege that pursuant to section 5 of the Act, CSC is charged
with the responsibility of ensuring the objectives under section 3 are
achieved.
[42]
Pursuant
to subsection 6(1) of the Act, the Commissioner has control and
management of CSC. He has been granted an authority under sections 97 and 98 of
the Act in the form of Commissioner’s Directive and Standard Operating
Practices to issue rules and guidelines to its staff in the exercise of their
duties.
[43]
Upon
admission to federal custody, the offender is subjected to an OIA.
[44]
CSC must
ensure that the individual is placed in the least restrictive environment
taking into account a degree and kind of custody and control necessary
accessibility to the individual’s home community and support and the
availability of programming.
[45]
Such
placement requires a consideration of the individual’s escape risk, risk to
public safety in the event of escape and a degree of supervision and control
that is necessary in order to fulfill the objectives of the Act. This process
is referred to "the inmate security classification process". The
factors to be considered are set out in section 17 of the Regulations.
[46]
The OIA
has two components: the Static Factors Assessment and the Dynamic Factors
Assessment. Some of the assessment tools to measure the risk of re-offending
are: the Criminal History Record, Offensive Severity Record, Sex Offense
Checklist and Statistical Information on Recidivism-Revised 1 Scale (SIR-RI).
In particular circumstances, an offender may be referred for a specialized
psychological assessment when there is a sexual offence component.
[47]
The
Respondents submit that the SRI-RI is a valid predictor of the risk of re-offending
with respect to Aboriginal inmates, but the size of the sample upon which the
test was constructed has lead CSC to adopt a cautious approach to its
application to that subgroup. CSC asserts that the SRI-RI was not applied to
the Applicant.
[48]
The second
component of the OIA (Dynamic Factors Assessment) attempts to identify those
factors that can be influenced through programming and treatment.
[49]
Therefore,
the Respondents argue that the risk/needs assessment is a multi-method
involving a multi-disciplinary team and does not rely on a single assessment
tool to the exclusion of others. The CRS is one of the tools to determine the
security classification of an inmate.
[50]
The
Respondents allege that in the OIA process, the staff involved may request a
specialized psychological assessment as it was done in this case. Specialized
psychological risk measures include the PCL-R, VRAG and SORAG. The Respondents
contend that these tools have been validated for use in adult male correctional
and forensic psychiatric samples. These tools are used at the discretion of the
psychologist. Other tools such as the Violence Risk Scale: Sex Offender Version
VRSSO and the STATIC-99 are also available to predict the long-term potential
for sexual recidivism. The Respondents maintain that the utilization of these
tools enhances professional judgment and assists in ensuring the consistency
and predictive accuracy of decisions relating to the rehabilitation and
reintegration of offender.
[51]
The
Respondents filed an opinion (dated January 7, 2006) written by Dr. Quinsey, Ph.D.,
Head, Department of Psychology, Professor of Psychology, Biology, and Psychiatry
at Queen’s University, Kingston, Ontario. Dr. Quinsey drew the following
conclusion (Respondents’ Record, p. 32):
In
summary, there is no evidence of which I am aware showing that actuarial
instruments are biased against aboriginal federally sentenced offenders; the
available data suggest the opposite. A number of actuarial estimates provide
accurate estimates of the probability with which an offender would be arrested
or convicted for a new offense in a given period of opportunity to offend. The
accuracy of actuarial instruments is robust across a wide variety of
populations. Lastly, there is no defensible alternative to assessing risk
using actuarial instruments-- in particular, the use of unstructured intuitive
judgments is likely to produce inappropriately conservative, biased, and inaccurate
judgments of risk.
[52]
The
Respondents also filed an affidavit by Dr. Motiuk. He has a Ph.D. in Psychology
from Carleton University and a master’s degree
in clinical psychology from the University of Ottawa. He is the Director
General of Research for CSC.
[53]
In
this affidavit, he explains the history of risk assessment and the development
of the assessment tools at CSC. Here are some of his comments (Respondents’
Record, tab 4, pp. 24 to 25 of Dr. Motiuk’s Affidavit):
79. The
administration of specialized psychological risk measures such as the PCL-R,
Violence Risk Appraisal Guide ("VRAG") and Sex Offender Risk
Appraisal Guide ("SORAG") require training and can only be
administered by or under the direct supervision of registered psychologists.
Although the PCL-R developed by R. Hare was not originally designed as a risk
assessment device, it has gradually come to be used to assess likely future
recidivism and violent offending. In the PCL-R has been validated for use in
adult male correctional and forensic psychiatric samples. Over recent years,
research has shown that it is a relatively good predictor of violence across
diverse populations. PCL-R scores are incorporated into a number of
subsequently developed risk assessment tools and guides such as the VRAG and
SORAG.
80. The
VRAG and SORAG, he developed by v. Quinsey, G. Harris, M. Rice, and C. Cormier,
are used to assess the risk of violence and sexual recidivism of previously
convicted sex offenders within a specific period of release. It uses the
clinical record as a basis for scoring and incorporates the PCL-R scores.
Similarly, the VRAG and SORAG have been validated for use in adult male
correctional and forensic psychiatric samples.
81. […]
Although psychologists have individual discretion in the use of tools, it is
believed that the majority of CSC psychologists use these assessment tools.
Also used are specialized scales such as the STATIC-99 developed by K. Hanson
and the Violence Risk Scale: Sex Offender Version ("VRSSO") by S.
Wong and A. Gordon. The Static 99 and VRSSO were specifically designed to
assess the long-term potential for sexual recidivism among adult male sex
offenders. So far, the Static-99 and VRSSO have been used predominately within
the correctional system.
83. Case-specific
information from several instruments and other sources (such as recommendations
based on clinical observations) are combined as multi-method assessments
prepared by CSC psychologists to provide informed and reliable decisions.
85. The
prediction of both general and violent criminal recidivism of persons released
from correctional institutions has been researched extensively. The consensus
among correctional researchers and practitioners is that criminal recidivism is
predictable and can be influenced. Given the usefulness of a variety of
predictors (number and variety of criminal convictions, breaches of trust,
criminal associations, addictions, etc.), combining them is a means to increase
consistency and predictive accuracy. Known as the actuarial method, it has been
well established in the scientific literature that these empirically derived
instruments are highly efficient. This formal approach to risk assessment has
been reviewed and endorsed in the 1996 study […]
88. The
inclusion of objective measures in this process by CSC and other correctional
systems throughout the world enhances the consistency and accuracy of decision
making based on that risk. In turn, the needs of the offender can be more
effectively addressed through the provision of appropriate programming and
treatment thereby lessening the risk to society upon the offender's eventual
release to the community.
[54]
On
the day of the hearing, the Respondents filed additional documents that have
been sent to the Applicant. Some of these documents were missing in the Applicant’s
Record. Nothing is new here except for a few pages of the Annual Report of the
Office of the Correctional Investigator 2005-2006 and a few pages of the
Response from the Correctional Service of Canada to the 33rd Annual Report of
the Correctional Investigator 2005-2006.
[55]
I
agree with the Respondents that the subject matter of this application is the
legitimacy of applying various psychological assessment tools and actuarial
assessment tools in the classification process of the Applicant.
[56]
The non-contradictory
evidence shows that the first OIA for the Applicant was made in 1996 and not 2001
as the Applicant alleged. Also, there was no SIR applied to the Applicant because
he was identified as “native” (Aboriginal).
[57]
As
can be
seen, there is conflicting affidavit evidence of the expert witnesses provided
by both parties with respect to the applicability of the assessment tools on
offenders.
[58]
The
Court prefers the Respondents’ expert evidence to the Applicant’s for the
following reasons:
- Dr. Menzies is a sociologist
and not a doctor of psychology as the other two are;
- Although Dr.
Menzies has an extensive and impressive curriculum vitae like the other
two experts, Dr. Quinsey is the Head of the Department of Psychology at
Queen’s University in Kingston Ontario and is
the co-developer of the VRAG and SORAG. Dr. Motiuk has 27 year in the
correctional system and was involved in the drafting of the OIA;
- Dr. Menzies
concludes that there is no evidence for validation of the psychological
tools used by CSC but provides no other alternatives. On the other hand, Dr.
Quinsey and Dr. Motiuk disagree with that proposition and submit
evidence to the contrary and affirm that the psychological assessment
tools are efficient and accurate;
- The assessment
tools challenged by the Applicant form part of a multi-method assessment
process and CSC do not rely on a single assessment tool to the exclusion
of others;
- The VRAG and SORAG
were originally developed using a heterogeneous offender sample that was
not restricted to non-aboriginal offenders. A very large number of
follow-up studies conducted since the yearly 90s have obtained respectable
to excellent predictive results in a wide variety of populations.
[59]
There
is no evidence from the Applicant that he would have been classified at a lower
level if the assessment tools had not been applied to him.
[60]
The
Court is satisfied with the explanation provided by the Respondents concerning
the documents (e-mail at paragraph [37] above). This is not a formal opinion
from CSC but that of an employee who works in the Aboriginal Programming Unit.
It is an internal e-mail from an employee sharing his view with another
colleague. CSC was aware of that opinion because it was considered at the third
level grievance. In its final response to the grievance, CSC came to the
conclusion that there was nothing with respect to the application of the
actuarial assessment tools that discriminates against the Applicant.
[61]
The
Court is satisfied that the Respondents took appropriate action by considering
the Applicant’s submissions that assessment tools were inappropriate for assessing
risk of Aboriginal inmates such as himself by asking the Psychologist
Association of Alberta an independent opinion regarding VRAG and PCL-R as an
assessment tool with Aboriginal offenders. This was in turn shared with the
Applicant. Unfortunately, the Executive Director of the Association replied
that he could only offer the name of a psychologist who could be contacted for
an opinion.
[62]
I
also note that the Respondents disposed of the grievance at the third level
with the caveat that this may change pending the results of the study
undertaken by its Research Branch in 2003 regarding applicability of the
actuarial assessment tools to its Aboriginal inmate population.
[63]
In
this regard, it bears repeating the decision with respect to its undertaking
following the results of the research analysis. Mr. Hooper states as follows:
You submitted a grievance on the above
issue in 2003. At that time, you were advised in writing that the Correctional
Service of Canada was in the process of having these instruments reviewed and
evaluated through its Research Branch. On June 13, 2003 you received a letter
from Ms. Shereen Benzvy Miller, the Director General, Rights, Redress and
Resolution, Correctional Service of Canada. This correspondence provided you
with a detailed explanation regarding the use of actuarial instruments on
offenders, the process of assessment CSC follows and the current initiative
being undertaken by the Research Branch to review the appropriateness of CSC
intake assessment tools for Aboriginal offenders. This process is currently
ongoing.
Once the evaluation of these measurements
has been undertaken by CSC [it] will then determine whether any changes or
modification(s) will be required to the current actuarial scales being used for
assessment purposes.
Until such time as this review is
completed, no further action is required.”
[emphasis in the original]
[64]
At
the hearing, the Court asked the Respondents what it considers the end result
of the Applicant’s third level grievance. The Respondents expressed the opinion
that the Court should implicitly consider that the grievance had been denied
because the decision maker felt at the time that there would not be a
withdrawal of the application of the assessment tools challenged.
[65]
Upon
an analysis of the document at page 83 of the Applicant’s Record (Offender’s Grievance
Response, Third Level) the Court cannot ignore the "x" in the box
just above Mr. Hooper’s signature where it is indicated "Resolved/No
further action required". This is intimately related to the last sentence
of the response at third level "Until such time as the review is
completed, no further action is required" (emphasis in the original).
[66]
Therefore,
the Court finds that it was not patently unreasonable for CSC to reach such a
conclusion due to the caveat mentioned above and also because the process to
review the appropriateness of CSC intake assessment tools for Aboriginal
offenders was still ongoing.
[67]
Now
that we are in 2007, the Court strongly suggests that CSC should explain to the
Applicant the initiative undertaken by the Research Branch and the results obtained,
if any.
B. Does the use of
the actuarial assessment tools to evaluate the Applicant’s risk level infringe
the Applicant’s rights under sections 7, 9, 12 or 15 of the Charter? If so, is
the infringement demonstrably justifiable in a free and democratic society
pursuant to section 1 of the Charter?
[68]
The
Applicant has selected race as a ground for discrimination. The Court agrees
with the Respondents that the subject matter here is not race but risk factors
in the application of the actuarial assessment tools:
In this matter the assessment tools
distinguish between inmates not on the basis of race but largely on the basis
of the inmate’s past course of conduct.
[69]
It
is therefore unnecessary to undertake a Charter analysis and answer the
constitutional questions raised by the Applicant in light of my findings in the
present case. I cite my colleague Justice Carolyn Layden-Stevenson in Worthington
v. Canada (Minister of
Citizenship and Immigration, [2004] F.C.J. No. 1879 (F.C.) (QL), who held
at paragraph 24:
The mere existence of a constitutional
question does not mean that the court is obliged to determine it. It is an
established practice in Canadian law that, if a judge can decide a case without
dealing with a constitutional issue, he or she should do so: R.J. Sharpe, K.E.
Swinton and K. Roach, The Charter of Rights and Freedoms, 2nd ed. (Toronto:
Irwin Law, 2002) at p. 97. […]
- Does
the Court have jurisdiction to grant the relief sought restricting the
discretion of the Respondents with respect to the management of its
federal inmate population?
- The
constitutional questions posed by the Applicant and found at Annex "A
"of these reasons.
[70]
In
the exercise of its discretion, the Court declines to answer questions C. and
D.
JUDGMENT
THIS COURT ORDERS that
1. The
application for judicial review is dismissed. No costs are awarded.
“Michel
Beaudry”
Judge
ANNEX “A”
(as filed by the Applicant - grammatical
errors included)
Court No.:
T-1974-05
Vancouver Registry
IN THE
FEDERAL COURT OF CANADA
TRIAL
DIVISION
BETWEEN:
JEFF EWERT
APPLICANT
AND:
THE ATTORNEY GENERAL OF CANADA AND
THE COMMISSIONER OF THE CORRECTIONAL
SERVICE OF CANADA
RESPONDENTS
NOTICE OF
CONSTITUTIONAL QUESTION
THE APPLICANT intends to
question the constitutional validity and effect of:
• Rule 319 of the Federal Court
Rules, 1998;
• the
subordination and 'devolution' of the Yukon, the Northwest Territories and
Nunavut to a single, central authority while Canada is a federalist state [s.
12., 21., 22., 26., 27., 37., 51A., 52., 58-68., 91., 92., and 146. of the Constitution
Act, 1867]; [s.30.; 31.; 32 (1)(a); s.36. (1); s. 38.(1)(a) and (b), (2),
(3), (4); s. 39(1)(2); s. 41. (a)(b) and (d); s. 42.(1)(a)(b)(c)(d)(e) and (f);
s. 43(a) and (b); s. 45; and s. 46. (1) Constitution Act of Canada 1982]; [s.
28. Interpretation Act, R.S.0 1985];
• Parliamentary
limitation of legislative powers of the people of the Yukon, Northwest
Territories and Nunavut [s. 12., 21., 22., 26., 27., 37., 51A., 52., 58.-68.,
91., 92., and 146. of the Constitution Act, 1867]; [s.30.; 31.; 32
(1)(a); s.36. (1); s. 38.(1)(a) and (b), (2), (3), (4); s. 39(1)(2); s. 41.
(a)(b) and (d); s. 42.(1)(a)(b)(c)(d)(e) and (f); s. 43(a) and (b); s. 45; and
s. 46. (1) Constitution Act of Canada 1982]; [s.
28. Interpretation Act, R.S.0 1985];
• permitting
the Commissioner of the Correctional Service of Canada such broad discretionary
powers as conferred by the Penitentiary Act, and the Corrections and
Conditional Release Act [sections 96, 97 and 98], resulting in said broad
discretion giving rise to a question of jurisidiction of a Canadian Court
properly considering judicial review;
• any
Canadian law that permits the uncertain science of risk-assessment to become
the essential aim of the Correctional Service of Canada in contravention with
Article 10, paragraph 3 of the International Covenant on Civil and Political
Rights to which Canada is a States Party, and;
• the
applicability, validity and effect of any Correctional
Service of Canada rules that provide for the use of actuarial and non-actuarial
risk assessment instruments and practices on Aboriginal people for whom said
instruments and practices have not been validated for, insofar as these CSC rules
(Standard Operating Practices and Commissioner's Directives) are derived from
law that includes but is not limited to the Corrections and Conditional
Release Act; and
• the
validity of saving of any violations of Charter rights on behalf
of Canadian prison administrators by way of s. 1 of the Charter;
• The
validity of s. 1 of the Charter in light of Canada being a State
Party to the International Covenant on Civil and Political Rights, where said
convenant prohibits scientific experimentation on a person without their
consent, and where contemporary risk assessment research and development is at
best scientific experimentation, and where said scientific experimentation
occurs to the detriment of the liberty interests of Canada's Aboriginal people,
and where the International Covenant on Civil and Political Rights does not
have a provision that saves violations of its provisions; and
• the
applicability and yalidity of s. 1 of the Charter to limit
s. 25 Charter rights of Aboriginal people that guarantee them the right
(by the Royal Proclamation of 1763) to have their Civil as well as Criminal
Causes heard and decided according to Law and Equity by the Courts of the
Judicature.
I. The
questions are to be argued on August 10, 2006, at 9:00 AM to 3:00 PM, at Vancouver.
Il. The
following are the material facts giving rise to the constitutional questions:
1. Aboriginal
people have continued to be unjustifiably and inexplicably overrepresented
within Canadian prisons;
2. The
Government of Canada has been aware of the discriminatory impact of our
criminal justice system on Canada's Aboriginal people for decades, and have
failed to take any realistic steps towards correcting the problem;
3. When
subjected to contemporary actuarial and non-actuarial risk assessment
instruments, Aboriginal people artificially bear out higher risk and needs
assessments than non-Aboriginal people, resulting in the further detainment of
Aboriginal people within Canada's prisons;
4. The
Respondent Correctional Service of Canada was aware of this
artificial inflation of risk and needs scores, while they continued to deny
Applicant any and all administrative remedy he requested;
5. The
Courts have generally displayed antipathy with regard to entertaining judicial
review of matters pertaining to the pure discretion of prison administrators;
6. The
severe overrepresentation and the inaction or otherwise ineffective action on
behalf of the Canadian government to remedy the problem results in a racist
effect giving rise to a number of Constitutional Questions;
7. The
Federal Court Rules, 1998, do not provide for the Attorney Generals of the
Yukon, Northwest Territories and Nunavut to be parties to Constitutional
Questions, where these territories are largely inhabited by Aboriginal people
who, by virtue of their ethnicity, ought to have the greatest interest in the
Constitutional Questions raised;
8. The
Constitution Act, 1867, and the Constitution Act, 1982 both
assign the term 'province' the same meaning as in s. 28. of the Interpretation
Act, R.S.C 1985, yet the Northwest Territories, Yukon and Nunavut are not
'coordinate' with the legislative powers of Canada's remaining provinces, but
instead are subject to a 'devolution of power' from federal Parliament or
otherwise subordinate to Canada's central Parliamentary authority resulting in
an inconsistent constitutional foundation that derogates and abrogates the Charter
rights of the inhabitants of the three northern territories, who are largely
Aboriginal, and whose interests would, presumably on a balance of probability,
include the interests of other Aboriginal people in other parts of Canada,
especially where it becomes known that Canada's Aboriginal peoples are
presently so severely and inexplicably over-represented in Canadian prisons;
9. The
Courts allow Charter violations to be saved by section 1 while at the
same time Canada is a State Party to the International Covenant on Civil and
Political Rights which prohibits many or all of the same violations and has no
similar violation-saving section — thus the former conflicts with the latter;
10. Section
1 of the Charter is in conflict with s.25 of the Charter which
guarantees that Aboriginal rights and freedoms are not affected by the Charter
whenever s.1 is invoked to save any violation of the said Charter rights
in respect to Aboriginal people.
III. The following
is the legal basis for the constitutional questions:
Constitutional Question
#1
1. Is
Rule 319 of the Federal Court Rules, 1998, unconstitutional insofar as the
requirement to serve a Notice of Constitutional Question on the Attorney
General of Canada and the Attorney General's of Canada's ten provinces while,
by omission, it excludes a requirement for service upon the Attorney Generals
of the Yukon, the Northwest Territories and Nunavut?
a.
Should the Attorney Generals of Canada's three great territories not be
included in legal processes with constitutional implications, especially where
a Constitutional Question is with respect to Canada's Indian,
First Nations or Inuit people?
b. Is
the exclusion of the Yukon, the Northwest Territories and Nunavut from
participation in constitutional questions a violation of the rules of
federalism?
c. If,
in a federalist state where the regional authorities and the central authority
have 'coordinate' powers and every individual in a federalist state
is to be subject to the laws of the two authorities, is it not
unconstitutional to allow the inhabitants of the Yukon, the Northwest
Territories and Nunavut to continue to be subject to only to the 'unitary
state' power of the one central Parliamentary authority?
d. Why,
in a free and democratic society have the legislative powers of Canada's three
territorial regional authorities not been made 'coordinate' with Canada's ten
provincial regional authorities, especially when such proposed change in
regional powers on federal grounds would not abrogate or derogate any
Aboriginal rights or non-aboriginal rights of the inhabitants of the said
territories currently guaranteed on Charter grounds?
e. Can
the continued subordination of the legislative powers of the Yukon, and the Northwest
Territories,
136 years after their admission into Canada (and subsequently Nunavut [1993?]), be
demonstrably justified in a free and democratic society that claims to be founded
on principles and rules of federalism?
f. Is
it constitutional to allow the United Kingdom's principle of
devolution to continue to exist in the federalist state of Canada after the
enactment of the Canada Act, 1982?
g. Does
limiting the legislative powers of the largely Aboriginal inhabitants of the
Yukon, the Northwest
Territories
and Nunavut constitute a
violation of their s. 15 Charter rights?
h. Does
a limitation on the legislative powers of the regional authorities of the
Yukon, the Northwest Territories and Nunavut place the largely Aboriginal
inhabitants of these territories at disadvantage or otherwise render them
unequal to the inhabitants of Canada's ten provinces vis-à-vis the Constitution
Act 1867, the Constitution Act 1982, parliamentary and/or legal
processes of Canada?
(b) Limitations
on judicial review
In a federal
state such as Canada, where
legislative powers are distributed between a central legislative body (the
federal Parliament) and regional legislative bodies (the provincial Legislatures),
one function of judicial review is to enforce the distribution-of-powers rules
(the rules of federalism).
p. 128,
Constitutional Law of Canada, Peter W. Hogg, 2003
Constitutional Question
#2
2. Is
it demonstrably justifiable in a free and democratic society to
permit the use of risk and needs assessment instruments that bear out higher
risk and needs outcomes for Aboriginal people due to inherent and immutable
characteristics, where such higher risk/needs outcomes have the effect of
imposing "burdens, obligations and disadvantages" on
aboriginal people that are not imposed on non-aboriginal people who are “similarly
situated” except for the presence of the inherent and 'immutable' personal
characteristics of aboriginal people?
a.
Is there purpose and justification for permitting such impugned actuarial and
non-actuarial risk assessment where said risk-assessment results in a
distinction between risk-levels of aboriginal and non-aboriginal people to the
detriment of aboriginal people?
b. Is
such a distinction demonstrably justifiable in a free and democratic society?
52.6
Equality
(c)
Aristotle's definition
Aristotle
said that "justice considers that persons who are equal should have
assigned to them equal things", and "there is no inequality when
unequals are treated in proportion to the inequality existing between
them". According to Aristotle's conception of equality, persons who are
alike (similarly situated) should be treated alike, and persons who are not
alike should be treated differently in proportion to the difference. Laws that
single out groups for special treatment do not offend the principle of equality
if they employ classifications that appropriately distinguish between people
who are not alike, and if they provide for appropriately different treatment
for those who are not alike.
p.
1067, Constitutional Law of Canada, Peter W. Hogg, 2003
52.7
Equality
(e)
Analogous grounds involve immutable personal characteristics
Another way
of looking at immutability as the common element of the listed personal
characteristics is to notice that the characteristics are inherent, rather than
acquired. They do not reflect a voluntary choice by anyone, but rather an
involuntary inheritance. They describe what a person is, rather than what a
person does. Section 15 prohibits laws that distinguish between people on the
basis of their inherent attributes as opposed to their behaviour. Section 15
therefore does not prohibit laws that make special provision for those who have
committed a crime, become insolvent, manufactured food or drugs, joined the
legal profession, made a will, purchased a taxable good or service, etc. It is
true that individuals may claim to be treated unfairly by the law for
conditions that are their own responsibility, but this kind of claim even if
fully justified does not warrant a constitutional remedy. This kind of claim is
the daily fare of politics, and is best remedied not by judges but by those who
are politically accountable. What does warrant a constitutional remedy is the
claim that a person has been unfairly treated by reason of a condition over
which the person has no control. In that case, forces of prejudice may well
have distorted the political process, and it is appropriate for judges to
review the challenged decision.
p.
1084, Constitutional Law of Canada, Peter W. Hogg, 2003
Constitutional Question
#3
3. Is
it constitutional to allow a branch of government powers and authorities
conferred upon it by law that cannot be challenged by way of using the very law
from which that branch of government derives its powers and authorities? Asked
another way, is it constitutional to allow the Commissioner of the Correctional
Service of Canada such broad discretionary powers so as to permit his
contravention of the very law from which his discretionary powers are derived?
a.
Is it constitutional to allow the Commissioner of the Correctional Service of
Canada the discretion to create 'rules' under the legal authority of the Corrections
and Conditional Release Act that "draw an unreasonable, irrational,
unfair, unjustified or invidious distinction," between Aboriginal and
non-Aboriginal people, while at the same time discourages or precludes the
Court's broad discretion to review the said 'rules' because they are not 'law'
proper?
b. What
is the "pith and substance" of such a law that allows for such
rules that cannot be challenged by law?
c. Is
due process of law as specified in the Canadian Bill of Rights properly
termed due process of law if said law is construed or applied in such a way so
as to draw "unreasonable, irrational, unfair, unjustified or invidious
distinctions" between Canadians to whom the law is applied?
d. Can
such "unreasonable, irrational, unfair, unjustified or invidious
distinctions" inherent in the detrimental and impugned risk assessment
practices which authorize or effect the arbitrary detention and imprisonment of
Aboriginal people be saved by s. 1 of the Charter?
e. Can
the saving of Charter violations by way of the s. 1 provision be
justified in a free and democratic society when the said Charter
violations occur in prison society which is not 'free and democratic', and
where the impugned condition present in prison society is precisely the result
of judicially unattended historical abuse of broad discretionary powers?
Addy
J., Re Cline (1981), Court No. 894-81 (F.C.T.D.)
I would like
to add that, except in clear and unequivocal cases of serious injustice coupled
with mala fides or unfairness, judges, as a general rule should avoid
the temptation of using their ex-officio wisdom in the solemn, dignified
and calm atmosphere of the court-room and substituting their own judgment for
that of experienced prison administrators.
Trono
(Deputy Commissioner, Pacific Region, Correctional Service Canada) v. Gallant,
68 C.R. (3d) 173
"The
decision to transfer the prisoner was not made in accordance with the
principles of fundamental justice, since he was not given a real opportunity to
answer the allegation against him. With respect to s. 1 of the Charter, the
Penitentiary Act gives the commissioner and his delegates discretionary power
to transfer a prisoner. In a free and democratic society, it is reasonable and
perhaps even necessary to confer such a wide discretion on penitentiary
authorities. Hence the transfer decision was saved by s. 1."
Constitutional Question
#4
4. Are
contemporary Correctional Service of Canada risk-assessment practices that
assume homogeneity and are internationally debatable and are still in mere
"preliminary stages" of research and development, nothing more than "scientific
experimentation" as referenced and prohibited by Article 7 of the International
Covenant on Civil and Political Rights? — which reads as follows:
International
Covenant on Civil and Political Rights
Article 7
No one shall
be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent
to medical or scientific experimentation.
a. Is such experimentation
unconstitutional in Canada insofar as Canada is a States Party to
the International Covenant on Civil and Political Rights?
— Original
Message —
From: Mason, Randolph (NHQ-AC)
Sent: Monday, January 20, 2003,
9:59 AM
To: Sonnichsen Paul
(NHQ-AC)
Subject: RE: Inmate Grievance re use of
PCL-R and VRAG instruments
Paul:
This is timely in that we have already
flagged this issue as a concern. In fact, the Research Branch (NHQ) has already
began some work on this - if only in a preliminary capacity. I suspect that the
inmate will win his case and that this will force our hand as a Service. And
rightly so! It has always been our position that the inappropriate use of
actuarial scales and measures adversely affects our Aboriginal population. In
fact, we contend that the use of these measures artificially inflates need and
risk ratings.
Randy Mason
(e-mail from Randy Mason, Assistant
Commissioner, Correctional Service of Canada National Headquarters, to Paul
Sonnichsen, Manager Aboriginal Community Relations, Aboriginal Issues Section,
Correctional Service of Canada)
p.
000129, Respondents' Record, Affidavit of Shereen Benzvy
Miller, Director of Rights, Redress and
Resolution, Correctional Service of Canada
Unlike the
PCL-R the VRAG was designed with the intent of measuring risk in violent
populations and constructed as an actuarial risk assessment tool (the PCL¬R is
a clinical rating scale) (Quinsey et al., 1998). The construction sample
consisted of 618 male offenders who had been patients at Oak Ridge Psychiatric
facility in Ontario. The VRAG
contains twelve variables one of which is the PCL¬R score (Rice, & Harris,
1995). While the VRAG has been found to be a robust predictor of violent
re-offending, it has been found to be less predictive of sexually violent
re-offending. In a paradox the authors (Quinsey et al., 1998, p.29) have
designed a tool (Sexual Offender Risk Assessment Guide) specifically for this
group despite their claim that predictors related to violent re-offending
"do not vary as a function of the type of population studied." Thus,
both the PCL-R and VRAG are questionable sources of assessment without
validation on Australian offenders as they have been shown to be less accurate
or not predictive of risk in populations differing from the validation sample.
Assumption of Homogeneity, Deborah
Dawson, Edith Cowan U., WA, p. 686 Applicant's Record
Constitutional Question
#5
5. Do
the impugned Correctional Service of Canada risk-assessment practices
contravene Article 10, paragraph 3 of the International Covenant on Civil and
Political Rights, insofar as the essential aim of said practices is not the
rehabilitation and reform, but rather, the continued detention and prolonged
incarceration of the Aboriginal subjects of risk assessment experimentation?
International Covenant on
Civil and Political Rights
Article 10
3. The
penitentiary system shall comprise treatment of prisoners the essential aim of
which shall be their reformation and social rehabilitation.
Constitutional Question
#6
6. Can
section 1 of the Charter of Rights and Freedoms rightly save violations
of Charter rights of Aboriginal people while s. 25 of the Charter
guarantees that Aboriginal rights are not affected by the Charter
and guarantees Canada's Aboriginal people rights and freedoms under the Royal
Proclamation of October 7, 1763? — that reads in part as follows:
And whereas it will greatly contribute to
the speedy settling of our said new Governments, that our loving Subjects
should be informed of our Paternal care, for the security of the Liberties and
Properties of those who are and shall become Inhabitants thereof, We have
thought fit to publish and declare, by this Our Proclamation, that We have, in
the Letters Patent under our Great Seal of Great Britain, by which the said
Governments are constituted, given express Power and Direction to our Governors
of our Said Colonies respectively, that so soon as the state and circumstances
of the said Colonies will admit thereof, they shall, with the Advice and
Consent of the Members of our Council, summon and call General Assemblies
within the said Governments respectively, in such Manner and Form as is used
and directed in those Colonies and Provinces in America which are under our
immediate Government; And We have also given Power to the said Governors, with
the consent of our Said Councils, and the Representatives of the People so to
be summoned as aforesaid, to make, constitute, and ordain Laws, Statutes, and
Ordinances for the Public Peace, Welfare, and good Government of our said
Colonies, and of the People and Inhabitants thereof, as near as maybe agreeable
to the Laws of England, and under such Regulations and Restrictions, as are
used in other Colonies; and in the mean Time, and until such Assemblies can be
called as aforesaid, all Persons Inhabiting in or resorting to our Said
Colonies may confide in our Royal Protection for the Enjoyment of the Benefit
of the Laws of our realm of England; for which Purpose We have given Power
under our Great Seal to the Governors of our said Colonies respectively to
erect and constitute, with the Advice of our said Councils respectively, Courts
of Judicature and public Justice within our Said Colonies for hearing and
determining all Causes, as well Criminal as Civil, according to Law and
Equity, and as near as may be agreeable to the Laws of England, with Liberty
to all Persons who may think themselves aggrieved by the Sentences of such
Courts, in all Civil Cases, to appeal, under the usual Limitations and
Restrictions, to Us in our Privy Council.
[emphasis
added]
Aboriginal
rights and freedoms not affected by Charter
25. The
guarantee in this Charter of certain rights and freedoms shall not be construed
so as to abrogate or derogate from any aboriginal, treaty or other rights or
freedoms that pertain to the aboriginal peoples of Canada including
a) any
rights or freedoms that have been recognized by the Royal Proclamation of
October 7, 1763; and
b) any
rights or freedoms that now exist by way of land claims agreements or may be so
acquired.
Notes:
Rupert's Land and the North-western Territory
(1870) existed as part of the Dominion of Canada before the provinces of British
Columbia,
Alberta, Saskatchewan, Manitoba, Prince
Edward Island
and Newfoundland. Manitoba
was carved out of part of Rupert's Land by federal statute in 1870 after
Rupert's Land had already been admitted into Canada. What was
left of Rupert's Land and the North-western Territory became the Northwest
Territories.
In 1898 the Yukon
Territory
was carved out of the Northwest Territories and formed into a
separate territory. In 1905 the provinces of Alberta and Saskatchewan were created
out of the Northwest
Territories
by federal statute.
British Columbia was the amalgamation of
two settled colonies, namely Vancouver's Island (constituted
by imperial statute in 1849) and New Caledonia (constituted by
imperial statute in 1858). The two colonies were amalgamated in 1866 by
imperial statute and named British Columbia. British Columbia was
admitted into Canada in 1871 by imperial order in council, made at the request
of its Legislative Council, which was the procedure provided by s. 146 of the
British North America Act. Prince Edward Island was admitted into Canada in 1873. Newfoundland was admitted
into Canada in 1949.
The Yukon, Northwest Territories (1870) and Nunavut are not
properly subordinate to the national authority. They are neither city,
borough nor county, but rather 'territories', while Canada is a federal
state, and not a unitary state.
All of which is respectfully submitted.
“signed
Jeff Ewert”
Jeff
Ewert, pro se
4732 Cemetery Road
P.O. Box 2000
Agassiz,
B.C. V0M 1A0
TO:
The
Honourable Vic Toews, Attorney General of Canada
AND
TO:
The
Honorable Mildred A. Dover, Attorney General of Prince Edward Island
The
Honorable Tom Marshall, Attorney General of Newfoundland
The
Honorable Murray K. Scott, Attorney General of Nova Scotia
The
Honorable Brad Green, Attorney General of New Brunswick
The
Honorable Attorney General of Quebec
The
Honorable Michael J. Bryant, Attorney General of Ontario
The
Honorable Gord Mackintosh, Attorney General of Manitoba
The
Honorable Frank Quenell, Attorney General of Saskatchewan
The
Honorable Ron Stevens, Attorney General of Alberta
The
Honorable Wally Oppal, Attorney General of British Columbia
The
Honorable John Edzerza, Attorney General of the Yukon Territory
The
Honorable Brendan Hall, Attorney General of the Northwest Territories
The
Honorable Paul Okalik, Attorney General of Nunavut
c. Edward
Burnet, Counsel for the Respondents
Department of Justice
900-840 Howe Street
Vancouver, British Columbia, V6Z 2S9
Frej Fenniche, Senior Human Rights
Officer
Room 2-025,
Office of the High Commissioner for Human
Rights
Palais Wilson, CH-1211 Geneva 10
Switzerland
Dr. Robert Menzies, Ph.D.
Department of Humanities
Institute for the Humanities
Simon Fraser University
8888 University Drive
Burnaby, B.C., V5A 1S6
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