Date:
20080925
Docket: A-81-07
Citation: 2008
FCA 285
CORAM: DÉCARY
J.A.
BLAIS J.A.
RYER
J.A.
BETWEEN:
JEFF EWERT
Appellant
and
THE ATTORNEY GENERAL OF CANADA AND
THE COMMISIONER OF THE CORRECTIONAL
SERVICE OF CANADA
Respondents
REASONS FOR JUDGMENT
DÉCARY J.A.
[1]
The
appellant has been engaged in various legal battles challenging the process of
risk assessment of Aboriginal inmates in Canadian correctional institutions.
This is one of those challenges.
[2]
The
appellant has been incarcerated in a federal institution since 1984, serving
two concurrent life sentences for second degree murder and attempted murder. In
April 2000, he filed a grievance alleging that some tools of assessment used by
the Correctional Service of Canada (the Service) systemically discriminate
against Aboriginal inmates. The grievance was denied at all levels. On
September 13, 2004, the appellant filed a second third level grievance, which
was dismissed on June 10, 2005 in the following terms:
“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 CSC 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.”
(A.B.
vol. 5, p. 1418)
(emphasis
in the original)
[3]
The
decision is signed by Mr. Gerry Hooper, the Principal Advisor of the
Commissioner of the Correctional Service of Canada. Just above his signature,
are six boxes which indicate the status of the grievance : rejected (non
grievable), denied, upheld, upheld in-part, resolved/No further action
required, and deferred. The box marked is “resolved/No further action
required”.
[4]
On
November 1st, 2005, the appellant filed a notice of application for
judicial review
“…in respect
to the Respondents’ violations of laws and policies governing the decisions of
Correctional Service of Canada (CSC) to assess Applicant’s risk to Escape, risk
to Institutional Adjustment, risk to Public Safety, and concomitant overall
Security Level, in whole or in part upon the use of so-called actuarial and
non-actuarial risk assessment instruments which have not been standardized or
‘normed’ for use on Aboriginal offenders and have never been empirically proven
reliable or to have any predictive validity.”
(A.B.
vol. l, p. 59)
[5]
On
April 3, 2006, the appellant filed a Notice of Constitutional Question which
expands over ten pages. The range of the questions is, and this is an
understatement, overwhelming. It includes, amongst others, an attack on the
requirement to serve a Notice of Constitutional Question on the Attorney
General of Canada and the Attorney General of each Province while “it excludes
a requirement for service upon the Attorney General of the Yukon, the Northwest
Territories and Nunavut”; an attack “on the subordination and ‘devolution’ of
the Yukon, the Northwest Territories and Nunavut to a single, central authority
while Canada is a federalist state”; an attack on the validity “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…”
and an attack on the validity of section 1 of the Charter “in light of
Canada being a State Party to the International Covenant on Civil and Political
Rights…”.
[6]
On
January 12, 2007, Mr. Justice Beaudry, of the Federal Court, dismissed the
application for judicial review (2007 FC 13).
[7]
The
first part of the reasons is devoted to the grievance as such. As I read the
reasons, the Judge found on the one hand that the appellant had not made out
his case – there was conflicting expert evidence with respect to the
applicability of the assessment tools on offenders, and the Judge preferred
that of the respondent, and there was no evidence from the appellant that he
would have been classified at a lower level if the assessment tools had not
been applied to him. The Judge found on the other hand that the decision of Mr.
Hooper had not denied the grievance but had, rather, suspended further action
on it because it would be premature to deny it or uphold it while “the process
to review the appropriateness of CSC intake assessment tools for Aboriginal
offenders was still ongoing” (paragraph 66 of the reasons). In other words,
judicial review was denied on grounds of insufficiency of evidence and
prematurity.
[8]
These
findings are findings that escape appellate scrutiny. It is true, as argued by
the appellant, that the Judge erred in applying the standard of patent
unreasonableness : subsequent to the Judge’s decision, that standard was set
aside by the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
2008 SCC 9. The Judge’s error, however, is more an error of form than an error
of substance. The standard of reasonableness which was ultimately preserved in Dunsmuir
comprises a wide range of deferential norms. It is fair to say that in the case
at bar the decision of Mr. Hooper was entitled to a very high degree of
deference as it was reached on the basis that the Service was not yet in a
position to fully answer the complaints of the appellant. The Judge did not err
in deferring to the Service in the circumstances.
[9]
The
second part of the reasons is devoted to the Charter arguments of the
appellant. Assuming, for the sake of the discussion, that the Judge had to do a
Charter analysis notwithstanding his findings on the grievance itself
and the unfocused and extravagant ambit of the constitutional questions set out
by the appellant, he limited himself to deciding, again on the basis of the
evidence before him, that the appellant had failed to demonstrate that race was
the applicable ground of discrimination. The comparator group being not that of
Aboriginal inmates per se but that of Aboriginal inmates having the same
past course of conduct as that of non-Aboriginal inmates, the Judge was
justified, absent evidence of discriminatory treatment, in refusing to go further
in his Charter analysis.
[10]
At
paragraph 67 of his reasons, the Judge urged the Service to “explain to the
Applicant the initiative undertaken by the Research Branch and the results
obtained, if any”. At the hearing counsel for the respondent informed the Court
that some explanation would be given to the appellant during the fall. That may
prove to be very little very late for the appellant, but it is not an issue
that can be addressed in these proceedings.
[11]
For
the above reasons I have reached the conclusion that the appeal should be
dismissed. I would not, however, grant the respondents their costs in view of
the time that has elapsed since the undertaking, more than three years ago, of
a follow-up.
[12]
I
want to make it clear, however, that these reasons are not to be understood as
being a rejection of the Charter arguments raised by the appellant. Some
of the arguments raise legitimate concerns and depending on the course of
events it may be that a full examination of these arguments will be warranted
in a proper procedural setting and with up to date evidence. The appellant
would help himself and the Court if he were to confine his constitutional
questions to those that relate directly to his alleged discriminatory treatment
in the risk assessment process used by the Correctional Service of Canada
“Robert
Décary”
“I
agree.
Pierre Blais J.A.”
“I
agree.
C. Michael Ryer J.A.”
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