Crowe v. Canada
T-216-89
Cullen J.
5/5/93
17 pp.
Action for declaration Penitentiary Act, s. 28 applied to Native and Aboriginal inmates in unequal manner having regard to race and therefore in manner inconsistent with Charter s. 15 -- Plaintiff, Native Indian, incarcerated in federal penitentiary upon conviction for manslaughter -- Application for escorted temporary absence (ETA) to attend son's funeral denied -- Penitentiary Act, s. 28 providing head of institution may authorize absence for humanitarian reasons -- Plaintiff alleging denial of ETA partly motivated by racial bias in correctional system -- Alleging ETA's for humanitarian reasons rarely granted to Native inmates and not granted in numbers proportionate to representation in prison population -- Effect of s. 28 therefore amounts, as applied to plaintiff and Native inmates, to unequal treatment -- Based on data obtained from personal contacts with individuals who volunteered descriptions of own circumstances and of those close to them, plaintiff's witness concluding Native Indian and Aboriginal prisoners receiving smaller proportion of ETA's than non-Native inmates -- Defendant denying s. 28 violating Charter, s. 15 and race factor in decision -- Defendant's witness producing data base of all escorted temporary absences granted to inmates in all federal penitentiaries across Canada between April 1, 1986 and March 31, 1990 -- Concluding Native inmates receiving higher percentage of compassionate ETA's than would be expected given representation in prison population -- Also concluding compassionate ETA's extremely rare for those serving sentences for manslaughter and who are in fifth federal prison term; Native inmate convicted of manslaughter more likely to receive compassionate ETA than non-Native inmate -- Action dismissed -- Onus on plaintiff to establish infringement of Charter, s. 15 rights and on State to justify infringement -- Reference to comments of McIntyre J. on interaction between Charter, ss. 1 and 15 in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 -- McIntyre J. setting out analysis to determine whether law violating Charter, s. 15 -- Rejected application of "similarly situated test" -- Adopted purposive and contextual approach to equality -- Reference to comments of Wilson J. in R. v. Turpin, [1989] 1 S.C.R. 1296, where elaborated on "enumerated and analogous grounds" stage of analysis -- Plaintiff not establishing race as basis for refusal to grant ETA -- Plaintiff's witness' data found unreliable -- Security, not racial discrimination leading to decision to refuse ETA -- While Native Indian inmates face unique difficulties during incarceration, Correctional Services Canada taking many actions to eliminate disadvantages -- Systemic discrimination not evident given improvements made and anticipated -- Penitentiary Act, R.S.C., 1985, c. P-5, s. 28 -- Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15.