Rights of In­dige­nous pris­on­ers breached, Supreme Court says

The Globe and Mail (BC Edition) - - FRONT PAGE - SEAN FINE JUS­TICE WRITER

Cor­rec­tional Ser­vice failed to en­sure psy­cho­log­i­cal tests weren’t cul­tur­ally bi­ased, court rules

Fed­eral au­thor­i­ties are mis­treat­ing In­dige­nous pris­on­ers by fail­ing to en­sure that their psy­cho­log­i­cal as­sess­ments are not cul­tur­ally bi­ased, putting the of­fend­ers at risk of be­ing un­fairly de­nied pa­role or re­ha­bil­i­ta­tion pro­grams, the Supreme Court of Canada says.

In a damning cri­tique, the Supreme Court said the Cor­rec­tional Ser­vice of Canada had known since 2000 that sev­eral psy­cho­log­i­cal as­sess­ments might be un­re­li­able and in­ac­cu­rate for In­dige­nous pris­on­ers, but did not do any­thing to find out if they were. As a re­sult, it failed to live up to what the court called a “guid­ing prin­ci­ple” – set out by Par­lia­ment in a law passed more than 25 years ago – that prison au­thor­i­ties must meet the spe­cial needs of In­dige­nous of­fend­ers.

“Two and a half decades have passed since this prin­ci­ple … was in­cor­po­rated into [fed­eral cor­rec­tions law],” Chief Jus­tice Richard Wag­ner wrote for a 7-2 ma­jor­ity.

“None­the­less, there is noth­ing to sug­gest that the sit­u­a­tion has im­proved in the realm of cor­rec­tions.”

He cited re­ports show­ing

“that the gap be­tween In­dige­nous and non-In­dige­nous of­fend­ers has con­tin­ued to widen on nearly every indi­ca­tor of cor­rec­tional per­for­mance,” men­tion­ing higher se­cu­rity clas­si­fi­ca­tions, more time in se­gre­ga­tion and be­ing kept be­hind bars for longer.

Al­most 85 per cent of abo­rig­i­nal in­mates are held un­til their statu­tory re­lease date (at two-thirds of their sen­tence), com­pared with just less than 70 per cent for non-abo­rig­i­nal in­mates, ac­cord­ing to a 2015 re­port from the Pub­lic Safety Min­istry.

Abo­rig­i­nals make up 42 per cent of the pris­on­ers who are held un­til the end of their sen­tence.

The court is­sued a dec­la­ra­tion that the Cor­rec­tional Ser­vice had breached the rights of In­dige­nous pris­on­ers. If the ser­vice wishes to con­tinue us­ing the psy­cho­log­i­cal tests, it must at a min­i­mum con­duct re­search re­lated to bias and In­dige­nous of­fend­ers. Depend­ing on what it finds, it may have to stop us­ing the tests.

The rul­ing comes in a court chal­lenge brought by a con­victed sex-killer, Jeffrey Ew­ert, who is Métis. Mr. Ew­ert, 56, has served more than 30 years in prison for sec­ond-de­gree mur­der and at­tempted mur­der, the ma­jor­ity in max­i­mum se­cu­rity.

He has not ap­plied for pa­role, al­though he be­came el­i­gi­ble more than 20 years ago, be­cause he says his risk of re­of­fend­ing as de­ter­mined in sev­eral psy­cho­log­i­cal tests is too high to per­mit re­lease. He first chal­lenged the tests in an in­ter­nal prison process in 2000.

The court is say­ing to Cor­rec­tional Ser­vices, ‘You re­ally have to do some­thing about this.’ JONATHAN RUDIN PRO­GRAM DIREC­TOR OF ABO­RIG­I­NAL LE­GAL SER­VICES OF TORONTO

The fed­eral gov­ern­ment ar­gued he had failed to show the tests were bi­ased against In­dige­nous pris­on­ers. Mr. Ew­ert’s po­si­tion was that the gov­ern­ment needed to show the tests were re­li­able. He won at Fed­eral Court and lost at the Fed­eral Court of Ap­peal.

The out­come is a book­end to the rul­ing in a 1999 case called Gladue, in which the Supreme Court di­rected lower-court judges to give spe­cial con­sid­er­a­tion to abo­rig­i­nal of­fend­ers in sen­tenc­ing. That case turned on the in­ter­pre­ta­tion of a 1996 law spec­i­fy­ing that jail was to be a last re­sort for all of­fend­ers, with par­tic­u­lar at­ten­tion to the cir­cum­stances of abo­rig­i­nals. The Ew­ert case fo­cused on a 1992 law re­quir­ing cor­rec­tional pro­grams to be re­spon­sive to the needs of women, abo­rig­i­nals, peo­ple with men­tal-health is­sues and other groups.

“Now, 20 years later, the court is say­ing to Cor­rec­tional Ser­vices, ‘You re­ally have to do some­thing about this. There is an ex­pec­ta­tion that this is go­ing to be front and cen­tre in all of your work,’ ” Jonathan Rudin, pro­gram direc­tor of Abo­rig­i­nal Le­gal Ser­vices of Toronto, which in­ter­vened in the case, said in an in­ter­view.

The cor­rec­tional ser­vice said it is re­view­ing the de­ci­sion and “will de­ter­mine next steps,” a spokesper­son said in an e-mail to The Globe and Mail, adding: “It is im­por­tant to note that cul­tur­ally ap­pro­pri­ate in­ter­ven­tions and rein­te­gra­tion sup­port for First Na­tions, Métis and Inuit of­fend­ers is a pri­or­ity of CSC.”

For Mr. Ew­ert, the rul­ing means “more of a fair shake” when he ap­plies for pa­role, said one of his lawyers, Jason Gratl of Van­cou­ver.

Mr. Gratl said it was hyp­o­crit­i­cal of the Lib­eral gov­ern­ment, which has made rec­on­cil­i­a­tion with In­dige­nous peo­ples a pri­or­ity, to fight the case. “The Trudeau gov­ern­ment has been forced into treat­ing In­dige­nous in­mates eq­ui­tably,” he said in an in­ter­view.

But Scott Bard­s­ley, a spokesman for Pub­lic Safety Min­is­ter Ralph Goodale, said the gov­ern­ment ac­tu­ally won on a key point – that prison au­thor­i­ties had not vi­o­lated Mr. Ew­ert’s con­sti­tu­tional rights.

Mr. Bard­s­ley said Ot­tawa al­lo­cated more than $120-mil­lion in last year’s bud­get to sup­port the rein­te­gra­tion of in­car­cer­ated In­dige­nous peo­ple and ad­vance restora­tive jus­tice ap­proaches, and al­most $80mil­lion in the pre­vi­ous two bud­gets to ex­pand men­tal-health care in cor­rec­tional fa­cil­i­ties.

Mr. Gratl said the rul­ing could af­fect more than just In­dige­nous peo­ple – but much de­pends on the response by prison au­thor­i­ties.

“How it plays out re­mains to be seen,” he said. “The Cor­rec­tional Ser­vice of Canada has his­tor­i­cally dis­played a re­mark­able re­silience in re­sist­ing ju­di­cial pro­nounce­ments.”

In his view, the Supreme Court in­tended that “all de­ci­sion-mak­ing oper­a­tions of the Cor­rec­tional Ser­vice of Canada re­quire bu­reau­cratic re­flec­tion to de­ter­mine whether they com­port with broad, eq­uity-based con­sid­er­a­tions.”

The two dis­senters, Jus­tice Mal­colm Rowe, the first Trudeau ap­pointee to the Supreme Court, and Jus­tice Suzanne Côté, said the prison au­thor­i­ties had lived up to their obli­ga­tion to ad­dress the needs of abo­rig­i­nal of­fend­ers by keep­ing ac­cu­rate records of the tests.

SEAN KILPATRICK/THE CANA­DIAN PRESS

The Supreme Court of Canada in Ot­tawa, shown in 2017, says In­dige­nous pris­on­ers are mis­treated as au­thor­i­ties fail to en­sure psy­cho­log­i­cal as­sess­ments are not cul­tur­ally bi­ased.

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