Federal Court Decisions

 

 

 

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:

 

[19]           The classification of inmates as maximum, medium or minimum is governed by section 30 of the Act, which states as follows:

[20]           The purpose of administrative segregation is found in section 31 of the Act:

 

 

 

[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):

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. […]

 

3. 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?

 

4. 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

 

file

 

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          T-1974-05

 

STYLE OF CAUSE:                          JEFF EWERT and

ATTORNEY GENERAL OF CANADA

AND THE COMMISSIONER OF THE

CORRECTIONAL SERVICE OF CANADA

 

 

PLACE OF HEARING:                    Vancouver, BC

 

DATE OF HEARING:                      October 25, 2006

 

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          BEAUDRY J.

 

DATED:                                             January 12, 2007

 

 

 

APPEARANCES:

 

Jeff Ewert                                                                                 FOR APPLICANT

(self-represented)

 

Edward Burnet                                                                         FOR RESPONDENTS

 

 

SOLICITORS OF RECORD:

 

Jeff Ewert                                                                                 FOR APPLICANT

(self-represented)

Vancouver, BC

 

John H. Sims, Q.C.                                                                  FOR RESPONDENTS

Deputy Attorney General of Canada

Vancouver, BC