In a split ruling, the SCC found Saskatchewan rules for disciplining inmates violates the Charter
A Saskatchewan rule for disciplining inmates violates the Canadian Charter of Rights and Freedoms because it prescribes the wrong standard of proof for disciplinary proceedings involving major offences, the Supreme Court of Canada ruled in a split decision Friday.
Inmates in Saskatchewan’s prisons must appear before a disciplinary panel when charged with disciplinary offences. Under s. 68 of Saskatchewan’s Correctional Services Regulations, the standard of proof in those proceedings is a balance of probabilities, which means it must be more likely than not that the allegations against an inmate are true.
This standard of proof applies in all disciplinary proceedings, including those involving major offences that could result in severe sanctions.
Writing for the majority, Chief Justice Richard Wagner said, "A fundamental principle of Canadian law is that the guilt of a person charged with an offence must be proven beyond a reasonable doubt before they are punished with imprisonment.
“This appeal invites this court to confirm whether such a principle applies to persons behind the walls of correctional institutions who are charged with disciplinary offences,” Wagner wrote. “I conclude that it does.”
Justices Andromache Karakatsanis, Sheilah Martin, Nicholas Kasirer, Michelle O'Bonsawin, and Mary Moreau concurred.
The underlying application in the case was launched by the John Howard Society of Saskatchewan, a nonprofit organization that provides services to individuals impacted by the criminal justice system. JHSS challenged s. 68 of Saskatchewan’s Correctional Services Regulations, arguing it breached s. 7 of the Charter, which guarantees the right to life, liberty, and security.
The nonprofit said that given the principle of the presumption of innocence, the correct standard of proof in prison disciplinary proceedings should be proof of guilt beyond a reasonable doubt.
The application judge disagreed, finding that the heightened standard of proof was not warranted. An appellate court sided with the application judge.
JHSS appealed to the SCC but raised a new issue: whether s. 68 also violates s. 11(d) of the Charter, which holds that any person charged with an offence has the right to be presumed innocent until proven guilty.
In his decision, Wagner allowed JHSS to bring the s. 11(d) claim. He noted that the court has the right to consider a new issue of law on appeal in cases “where it is able to do so without procedural prejudice to the opposing party and where the refusal to do so would risk an injustice.”
The justice said JHSS’s application “is one of the exceptional cases” where exercising this right was appropriate but cautioned that such a move should not be taken routinely or lightly.
The majority concluded that s. 68 of the Saskatchewan regulations violates both ss. 7 and 11(d) of the Charter because the regulations allow prisons to impose certain severe disciplinary measures – like segregation and loss of earned remission – based on a lower standard of proof. This is “inconsistent with the Constitution and must therefore be declared to be of no force or effect,” Wagner wrote.
Under the precedent set by a 1990 decision called R. v. Shubley, the SCC held that inmate disciplinary proceedings that could lead to segregation and loss of earned remission do not trigger s. 11 of the Charter. In Shubley, the court found that inmate disciplinary proceedings did not qualify as criminal proceedings or lead to true penal consequences.
Wagner disagreed. “When an inmate faces the risk of disciplinary segregation or loss of earned remission, they face the possibility of additional imprisonment — a true penal consequence,” he wrote.
He added, “While the decision to depart from a precedent of the court should not be taken lightly… Shubley’s holding on the true penal consequence test should no longer be considered binding.”
Meanwhile, s. 7 “operates to require proof beyond a reasonable doubt” in proceedings “where a moral judgment is made, and severe liberty-depriving consequences are imposed as punishment,” Wagner said. Disciplinary proceedings for inmates that could potentially trigger segregation or loss of earned remission meet this criterion.
“Because s. 68 of the regulations permits findings of guilt on a lesser standard, s. 7 of the Charter is infringed,” Wagner wrote.
In the dissent, Justice Suzanne Côté disagreed with Wagner, writing that “Shubley remains good law and a binding precedent and must be applied in the present case.” Justices Malcolm Rowe and Mahmud Jamal joined her in dissenting.
“As in Shubley, Saskatchewan’s inmate disciplinary proceedings are not criminal in nature but are administrative and designed to regulate and maintain prison order,” Côté added. “The sanctions stemming from the disciplinary proceedings are not true penal consequences within the meaning of s. 11 of the Charter.”
However, the justice agreed with the majority that the court should hear the new issue of whether s. 68 of the Saskatchewan regulations breaches s. 11(d) of the Charter. She wrote that the case “meets the stringent test for hearing a new issue on appeal” and that “to refuse to hear the issue would be counter to the broader interests of the administration of justice.”
The minority concluded that s. 68 violated neither ss. 7 or 11(d) of the Charter.
Michelle Biddulph, an associate lawyer at Greenspan Humphrey Makepeace LLP who represented JHSS, told Canadian Lawyer on Friday, “The Court adopted a functional rather than formalistic approach to interpreting s. 11 of the Charter, as the majority recognized that we cannot neatly divide a sentence of imprisonment from the conditions of imprisonment and apply constitutional protections only to the former.
“This functional approach will be of interest to lawyers who work in criminal-adjacent fields, as it emphasizes that the nature of the proceedings and the impact on individuals is what matters for the purpose of constitutional protections, not the formal label that we apply to those proceedings.”
Biddulph said the decision confirms the importance of fairness in disciplinary processes and suggests that it has broad implications beyond the criminal justice system.
While the decision will compel provinces to review how their disciplinary procedures for inmates, “practitioners in other areas such as mental health or immigration should [also] assess whether any proceedings in their field involve the potential deprivation of liberty as punishment for moral wrongdoing.”
A spokesperson for the Saskatchewan attorney general said the province is reviewing the implications of the decision.
“The Supreme Court decision requires the use of the criminal standard of proof for more serious offences,” the spokesperson noted. “The decision did not rule on the constitutionality of the civil standard of the balance of probabilities for minor disciplinary offences.”
