The Applicants have failed to establish that correctional services discriminated against them and thereby infringed their constitutional rights enshrined in section 15 of the Canadian Charter of Rights and Freedoms by using inadequate actuarial tools not adapted to their Aboriginal culture and by failing to provide the necessities and resources required for their rehabilitation.
Yannick Hervieux-Riverin and Germain Penosway [collectively “Applicants”], are both accused of various breaches of long-term supervision orders. In this matter, they seek a remedy that the state’s conduct infringes upon their section 15 Charter rights. The Applicants are of Aboriginal ancestry and are members of their respective Aboriginal community.
Mr. Hervieux-Riverin was convicted on fifteen counts, including three counts of sexual assault, six counts of sexual interference, one count of invitation to sexual touching, and failure to comply with a recognizance and a probation order. For the nine files, he was sentenced to two consecutive terms of imprisonment and was found to be a long- term offender. In view of both the objective and subjective gravity of the offences to which Mr. Hevieux-Riverin pleaded guilty, and also taking into account his recurrent conduct attributable to a problem of a sexual nature, a sentence of twenty-seven months’ imprisonment is without a doubt within the range of fit sentences, and complies with the principle set out in s 718.2(e) of the Criminal Code (R v Gladue,  1 SCR 688; R v Ipeelee,  1 SCR 433).
The trial judge’s application, even after reconsideration in light of the Gladue report filed, remains unassailable. It contains no error of principle or any other error reviewable on appeal. Mr. Hervieux-Riverin’s personal profile, which includes his addiction, mental health problems, and complete absence of employment history, the high risk of recidivism, lack of any family or community support that could contribute to his rehabilitation, and the absence of resources in his community of origin to facilitate reintegration without reoffending, are significant factors. While he was required to observe strict conditions, Mr. Hervieux-Riverin was charged in nine different files for failing to comply with one of the conditions of his long-term supervision.
Mr. Penosway is also facing criminal charges for breach of long-term supervision. The long-term supervision order rendered in 2009 for a period of ten years will end only in 2024 because Mr. Penosway was re-incarcerated several times for breach, during which time the order was suspended temporarily. The initial conviction for which the long-term supervision order was rendered also referred to charges of a sexual nature. The Gladue report for Mr. Penosway, although drafted for the purpose of suggesting an alternative to a custodial sentence, illustrates the difficulties of a population exposed to violence, sexual abuse, and addiction.
The Applicants submit that Correctional Service Canada breached its obligations set out under the Corrections and Conditional Release Act [“Act”], by using inadequate actuarial tools that are not adapted to Aboriginal culture and fail to provide the necessities and resources required for their rehabilitation. They are the subjects of systemic discrimination, and as a result, their Charter s 15 rights have been breached. The Applicants argue that despite the legislative provisions duly set out in the Act, they are victims of systemic discrimination preventing them from obtaining the benefits recognized by the Act. It is not the Act nor the accompanying Directives that the Applicants contest, but rather their implementation, which they consider discriminatory.
The law provides that a person subject to a long-term supervision order shall be supervised by the Correctional Service of Canada and the Parole Board of Canada. The use of actuarial tools that had the potential effect of overestimating the risk and affecting the offender’s security classification do not infringe the rights guaranteed by s 15 (Ewert v Canada, 2018 SCC 30). Although they could be improved, actuarial tools are a measure that must be balanced with Aboriginal Social History to establish an intervention plan during mandatory long-term supervision. The conditions imposed do not fall under the authority of correctional services, but rather the Parole Board, which is not bound by the measures proposed. The Court cannot find that the rights of either applicant were violated further to discrimination, even involuntary discrimination, through the use of actuarial tools.
The Applicants submit that correctional services erred by omission by failing to provide the resources necessary for the rehabilitation of Aboriginal persons, in particular, programs specially adapted to their cultural situations, and by failing to establish places of residence near their community. They submit that these omissions are the result of discriminatory treatment. While the Court agrees that in a more perfect world, resources could be improved and allocated solely to Aboriginal offenders without being shared by other offenders, the fact remains that the lack of resources does not mean that there is discrimination. Breaching a mandatory parole supervision order and challenging it later goes to the very purpose of the long-term order (R v Bird, 2019 SCC 7). In view of the charges of breach alleged against each of the Applicants, they are launching collateral attacks of the orders rendered by the Parole Board. The Court therefore finds that the Applicants have not established discrimination.
The Court cannot accept the submission that the absence of resources, and in particular the fact that there is no residential centre near their community, puts the Applicants in a situation where they are inexorably bound to reoffend by failing to comply with a residency condition. A long-term offender designation is an exceptional measure that will be rendered only when the strict conditions of the Criminal Code are met. Had this Court found that there was discrimination, it simply would not have had jurisdiction to grant any of the remedies proposed. The services offered in the context of the long-term supervision orders, although not perfect, are not discriminatory in their regard. The efforts made to improve the services do not constitute a failure to act by refusing to take into account the specific features of each appellant’s Aboriginal Nation.