Who is worthy of constitutional protection? A Commentary on Ewert v Canada
On June 13, the Supreme Court of Canada (SCC) ruled in Ewert v Canada [2018 SCC 30] that by assessing the risk level presented by Indigenous prisoners with tools verified only on non-Indigenous individuals, Correctional Service of Canada (CSC) failed to meet their statutory duty under s. 24 of the Corrections and Conditional Release Act (CCRA) to utilize only accurate information in their risk assessments. The Court stated that CSC has a duty to account for the systemic discrimination Indigenous people undergo in the criminal justice system, in general, and in prisons, in particular. However, the SCC found that, despite utilizing tools that may be discriminatory towards Indigenous individuals, there was no violation of Charter rights. This result perpetuates an ugly truth about Canada’s democracy: constitutional protection does not apply the same to everyone.
Currently, 26% of the Canadian prison male population is Indigenous, and the percentage is much higher for women. Indigenous individuals form only 5% of the Canadian population. This has spurred numerous governmental and non-governmental reports, and academic research over the last decade (many of which cited in Ewert). Findings have indicated that Indigenous people, and especially Indigenous women, suffer extensive systemic discrimination by the very design of our justice and prison systems. Not only are Indigenous people incarcerated disproportionately, they spend more time in prison, in higher forms of security, face more challenges in obtaining release, and spend more time in segregation, including solitary confinement. Many institutions lack culturally appropriate programs or adequate release plans that return individuals to their communities where they can be supported. This is, in part, because many of the tools and programs used have not been created with Indigenous individuals and their needs in mind.
In Ewert, the SCC acknowledged this grim reality. It reminded us that “identical treatment may produce serious inequality” (at para 54). It equally acknowledges that prison overrepresentation and discrimination is a significant problem and “there is societal consensus that these problems must be remediated by accounting for the unique systemic and background factors affecting Indigenous people” (at para 58).
Moreover, the Court acknowledged that there is a significant connection between the risk assessment tools used in prison and prisoners’ liberty. Over classification of a prisoner’s risk significantly impacts that individual’s liberty: he or she is placed in more restrictive environments and the chances of early release are reduced. Despite all of this, the Court decided that neither the right to life, liberty, and security of the person (s. 7 of the Charter), nor the equality provisions (s. 15) had been infringed. The reason for this conclusion was a lack of evidence.
This means that despite the “societal consensus” and finding of fact that CSC has “disregard[ed] the possibility that these tools are systematically disadvantaging Indigenous” prisoners, the SCC concluded that the complainant did not provide sufficient evidence that the risk assessment tools breached his s. 15 rights (not to be discriminated against). This conclusion is shocking given that the Court used a s. 15 analysis to interpret and subsequently find a breach of s. 24 of the CCRA. In addition, the overwhelming volume of historical and recent reports cited as evidence of discriminatory practices speak for themselves. Moreover, given the context of imprisonment, the disproportionate impact that these tools have on prisoners, and the reality of who has control of the evidence – (i.e. CSC itself) –, the onus must be presumed to be on CSC to prove that their instruments are not discriminatory. Further, the fact that ultimately judges do have the power to take judicial notice of certain realities where there is “societal consensus,” combined with the foregoing res ipso loquitur reality, renders the SCC’s failure to so rule disappointing.
The Court did acknowledge that prisoner risk classification tools are inaccurate and provided the claimant with a declaration to that effect. However, it is worrisome that despite a long analysis on how they are inaccurate and how that may impact Indigenous individuals, the Court chose to maintain their constitutionality. In this light, it is hard to see what the positive effect of Ewert will be for prisoners, and by extension, for all of us. If there is one, it is at the moment overshadowed by the underlying message that certain people, regardless of anything else, are not worthy of constitutional protection. Essentially, in Canada, some are more equal than others.