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This morning our very own Pam MacEachern appeared before the Supreme Court of Canada in the case of Jeffrey G. Ewert v. Her Majesty the Queen in Right of Canada (the Commissioner of the Correctional Service of Canada, the Warden of Kent Institution and the Warden of Mission Institution).

Pam was co-counsel for the interveners, the Native Women’s Association of Canada (NWAC) and the Canadian Association of Elizabeth Fry Societies (CAEFS). The counsel team included Virginia Lomax of NWAC, Mary Eberts (Eberts Law), Natasha Chettiar (Nelligan O’Brien Payne) and Savannah Gentile (CAEFS).

The case concerned an Indigenous federal prisoner who brought an action alleging that the Correctional Services of Canada’s use of actuarial risk assessment tools were not proven to be reliable when administered to Indigenous prisoners, contrary to the Corrections and Conditional Release Act and giving rise to breaches of the Canadian Charter Of Rights And Freedoms.

It followed last year’s Federal Court’s trial decision Canada v. Ewert, which found that the use of these assessment tools was in fact a breach of section 7 of the Charter (relating to life, liberty and security of the person) and the Corrections and Conditional Release Act. The Correctional Service of Canada (CSC) was successful in appealing this decision to the top court, arguing that the Federal Court judge erred in law.

Here is an excerpt from Pam’s presentation to the court:

Treating people the same, regardless of differences, does not necessarily mean we are treating them equally. Applying the same actuarial risk assessment tools regardless of differences, similarly should impose on CSC a positive duty to prove that the actuarial risk assessment tools they apply to marginalized groups – such as women, Indigenous women, and those with disabling mental health issues – address the particular needs and vulnerabilities of the marginalized group, and do not result in perpetuating the current adverse impacts

And here is a clip of Pam’s appearance:

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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