VANCOUVER—A Métis man who has been incarcerated in Canada for over 30 years feels he may finally have a fair shot at parole, and escorted temporary absences from prison after a Supreme Court of Canada decision Wednesday threw a wrench in Correctional Services Canada’s use of statistical risk assessment tools, concluding the practice may discriminate against Indigenous inmates.

Jeffrey Ewert, who was raised in Surrey, B.C., is serving two concurrent life sentences for second-degree murder, attempted murder and escape from custody.

As is procedure for Canadian inmates, he participated in a number of “risk assessment” tests administered by Correctional Services Canada when his incarceration began.

Those tests included the Hare Psychopathy Checklist (PCLR) and the Static-99 test for sex offenders, which are designed to predict an inmate’s risk to public safety based on personal characteristics and crime history.

The tests are used to help Correctional Services determine things like whether the inmate should go to minimum, medium, or maximum security prison, and when they are eligible for parole.

But the validity of using those tools to predict risk for Indigenous offenders has been in question for decades, largely because of a lack of research testing their applicability among Indigenous inmates, whose representation in adult federal prisons was nine times that of their representation in the public in 2014-2015.

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In a case brought by Ewert and supported by the BC Civil Liberties Association and the Union of B.C. Indian Chiefs, three levels of court heard that Correctional Service of Canada knew the tests may not be valid at predicting Indigenous offender risk as early as 2000.

Canada’s top court Wednesday, in a 7-2 decision, found that use of these tools for Indigenous inmates may be discriminatory, because Correctional Services Canada had, in Ewert’s case, failed to fulfil its obligation to ensure it used the most accurate information possible to make decisions about inmates.

The majority of the Supreme Court found that obligation extended to ensuring the reliability of the assessment tools themselves. In the same decision, the court found Ewert did not prove that his Charter rights had been violated due to the use of the tests.

A spokesperson from Correctional Services Canada said the department “is reviewing the decision and will determine next steps.”

Jason Gratl, Ewert’s lawyer in the case, said the department will have both immediate and medium-term obligations as a result of the decision.

“The immediate concrete obligation is to conduct statistical research to assess the validity of these tools as applied to Indigenous inmates,” he said in an interview with StarMetro.

Then Correctional Services will have to determine to what extent, if at all, it will use the assessment tools for determining Indigenous inmate risk in the future.

The Supreme Court decision’s implications extend beyond the assessment tools, Gratl said. It also confirms that Correctional Services Canada has “a broad obligation to remedy historic injustices against Indigenous people and work to remediate overrepresentation of Indigenous inmates.”

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That obligation comes from the Corrections and Conditional Releases Act, which directs Correctional Services Canada to “advance substantive equality in correctional outcomes for Indigenous offenders,” the decision found.

The decision was welcomed by the Union of British Columbia Indian Chiefs, which released a statement saying it had intervened in the case in order to ask the court to ensure the Gladue principles — which require courts to consider the unique circumstances of Indigenous people — extend to prisons too.

“Today’s decision is a step forward in the fight to reduce the over-incarceration of our people,” said Chief Bob Chamberlin, UBCIC vice-president in the statement.

With files from The Canadian Press.

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