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.