Author: Amy Matychuk Page 2 of 4

Amy Matychuk (JD'18, UCalgary Law) is a sole practitioner at Prison & Police Law, where she advocates for the rights of those who have experienced unfair treatment by the prison or police systems in Alberta. More information about her practice is available at prisonpolicelaw.ca.

Case Commented On: Boulachanis v Canada (Attorney General), 2019 FC 456 (CanLII)

In Boulachanis v Canada, Justice Sébastien Grammond of the Federal Court granted Jamie Boulachanis’ application for an interlocutory injunction ordering that she be transferred to a women’s prison. Ms. Boulachanis, who is a transgender woman, initially made a transfer request to Correctional Service Canada (CSC) and was denied. She applied for judicial review of the decision denying the transfer. While waiting for resolution of her judicial review application, she was moved to administrative segregation due to threats to her safety from other (male) inmates. Accordingly, she successfully applied for an interlocutory injunction and an order that she be moved to a women’s prison immediately.

Justice Grammond’s decision discusses Ms. Boulachanis’ history, the rights of transgender people in a correctional environment, and the tripartite test for an interlocutory injunction. He found, “the refusal to transfer Ms. Boulachanis to a women’s institution constitutes prima facie discrimination based on gender identity or expression” (at para 3). Justice Grammond’s decision is an important victory for the rights of transgender inmates, who face unique roadblocks and safety risks and who must contend with persistent myths and misinformation about their gender identities and expressions.

Gladue Factors: Still Not a “Race-Based Discount”

By Amy Matychuk

On July 8, 2019

In Aboriginal, Sentencing

By: Amy Matychuk

PDF Version: Gladue Factors: Still Not a “Race-Based Discount”

Case Commented On: R v Matchee, 2019 ABCA 251

In R v Matchee, Justices Patricia Rowbotham, Ritu Khullar, and Dawn Pentelechuk of the Alberta Court of Appeal (ABCA) overturned Alberta Court of Queen’s Bench Justice Eldon J. Simpson’s sentencing decision because it did not give proper effect to Gladue factors (named for the case that created them, R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC)). The ABCA sentenced the offender afresh, substituting a six-year sentence for the original seven-year sentence (though with the deduction of three years 7.5 months credit for pre-sentence custody the remaining sentence was two years 4.5 months). The ABCA also commented on the correct application of Gladue factors, which are frequently misapplied and misunderstood as a “race-based discount” rather than “a partial remedy for the systemic discrimination suffered by [A]boriginal people which has led to their overrepresentation in the criminal justice system” (at para 31).

Canada v Chhina: Supreme Court Makes Habeas Corpus Available to Immigration Detainees

By Amy Matychuk

On May 17, 2019

In Immigration and Refugee Law

By: Amy Matychuk

PDF Version: Canada v Chhina: Supreme Court Makes Habeas Corpus Available to Immigration Detainees

Case Commented On: Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29

On May 10, 2019, the Supreme Court of Canada released its judgment in Canada v Chhina (Chhina SCC). It held that habeas corpus is available to immigration detainees where the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) does not provide a complete, comprehensive and expert statutory scheme equally as broad and advantageous as habeas corpus. Justice Andromache Karakatsanis, for the 6-1 majority, found that the IRPA’s procedures for reviewing the legality of immigration detention are not broad enough to preclude detainees from seeking habeas corpus as an alternative remedy. Justice Rosalie Abella, dissenting, would have held that the IRPA should be interpreted in such a way as to guarantee the fullest possible range of scrutiny for the legality of immigration detention.

Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury

By Amy Matychuk

On May 3, 2019

In Aboriginal, Constitutional, Criminal

By: Amy Matychuk

PDF Version: Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury

Case Commented On: R v Newborn, 2019 ABCA 123 (CanLII)

In R v Newborn, Justices Frans Slatter, Ritu Khullar, and Barbara Lea Veldhuis of the Alberta Court of Appeal (ABCA) dismissed an argument from the appellant (the accused) that “the array from which his jury was selected was constitutionally flawed because it disproportionately excluded [A]boriginal citizens” (Newborn ABCA, at para 1). It also dismissed his argument that inadmissible expert evidence was allowed at the trial. However, this post will focus on the right to a representative jury as defined in the Supreme Court’s decision in R v Kokopenace, 2015 SCC 28 (CanLII), R v Newborn’s application of Kokopenace, and the appropriate scope of the state’s obligations under Charter s 11.

Eighteen Years of Inmate Litigation Culminates with Some Success in the SCC’s Ewert v Canada

By Amy Matychuk

On June 26, 2018

In Aboriginal, Supreme Court of Canada

By: Amy Matychuk

PDF Version: Eighteen Years of Inmate Litigation Culminates with Some Success in the SCC’s Ewert v Canada

Case Commented On: Ewert v Canada, 2018 SCC 30 (CanLII)

On June 13, 2018, the Supreme Court of Canada (SCC) issued its decision in Ewert v Canada (Ewert SCC), in which the majority held that the Correctional Service of Canada (CSC) breached its statutory duty to Jeffrey G Ewert, a Métis inmate, when it used five actuarial risk assessment tests that were not proven to be accurate when applied to Indigenous offenders. CSC uses these tests to assess inmates’ risk of recidivism, and the test results can impact liberty-related processes such as security classification, parole hearings, and eligibility for escorted temporary absences (ETAs). Mr. Ewert had rather slim positive evidence for the presence of cultural bias in the tests; his argument was, instead, that his and others’ legitimate concerns about the possibility of bias should require CSC to produce research confirming the tests’ validity. He was initially successful at the Federal Court in 2015, overturned at the Federal Court of Appeal in 2016, and ultimately prevailed at the SCC. His lengthy litigation efforts resulted in a total of five written decisions and spanned eighteen years. In this post, I will review the long history of Mr. Ewert’s efforts, the progression of his case through the courts, and the significance of the remedy he received.

Author: Amy Matychuk Page 2 of 4

Boulachanis v Canada: Transgender Inmate Moved to Women’s Prison

Gladue Factors: Still Not a “Race-Based Discount”

Canada v Chhina: Supreme Court Makes Habeas Corpus Available to Immigration Detainees

Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury

Eighteen Years of Inmate Litigation Culminates with Some Success in the SCC’s Ewert v Canada