On March 14, Supreme Court Chief Justice Richard Wagner, backed by five colleagues, allowed the appeal of the John Howard Society of Saskatchewan from rulings by the Saskatchewan courts that upheld the constitutionality of s. 68 of the province’s Correctional Services Regulations: John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2021 SKQB 287 and 2022 SKCA 144.
Under s. 77(1) of Saskatchewan’s Correctional Services Act, 2012 inmates in provincial correctional institutions who have been found guilty of a “major disciplinary offence” face potential sanctions that include disciplinary segregation for up to 10 days and loss of up to 15 days of earned remission.
Section 68 of the regs mandates that inmate discipline hearings in provincial correctional institutions operate on a balance of probabilities.
The appellant public interest litigant, supported by intervener civil liberties and prisoner advocacy groups, argued before the top court that ss. 7 and 11(d) of the Charter require “proof beyond a reasonable doubt” that an inmate committed a discipline offence punishable by such severe liberty deprivations as segregation or loss of earned remission.
Supreme Court of Canada Chief Justice Richard Wagner
Section 11(d) of the Charter guarantees all persons charged with an offence the right to be presumed innocent until proven guilty. “This presumption requires guilt to be proven beyond a reasonable doubt,” Chief Justice Wagner said.
The chief justice said that disciplinary segregation and loss of earned remission are forms of imprisonment. “Disciplinary segregation is a distinct form of imprisonment because it significantly curtails an inmate’s residual freedom of movement and further limits their access to human interaction,” he explained. “Loss of earned remission is also a sanction of imprisonment, since it has the effect of extending an inmate’s period of incarceration.”
The chief justice said that under the tests the Supreme Court set out in R. v. Wigglesworth, [1987] 2 S.C.R. 541, s.11 of the Charter applies to a person charged with an offence when proceedings are criminal in nature or may lead to the imposition of true penal consequences. “The true penal consequence test focuses on the potential impact on the person subject to the proceeding and is always satisfied when there is the possibility of imprisonment,” the chief justice said.
Both disciplinary segregation and loss of earned remission amount to true penal consequences and because they are available forms of punishment for the commission of a major disciplinary offence under s. 77(1) of the Act, s. 11 of the Charter is engaged by those offences, the chief justice said.
“It follows that s. 68 of the Regulations infringes s. 11(d) of the Charter because it permits the imposition of imprisonment when a reasonable doubt as to the accused’s guilt may exist,” he held.
The majority overruled the top court’s earlier holding in R. v. Shubley [1990] 1 S.C.R. 3 that s. 11(d) does not apply to inmate disciplinary proceedings as such proceedings do not lead to true penal consequences, i.e. disciplinary segregation and loss of earned remission do not constitute a sentence of imprisonment, and “should no longer be considered binding.”
“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,” the chief justice held. “While the decision to depart from a precedent of the court should not be taken lightly because adherence to precedent furthers values such as the certainty and predictability of the law, Shubley’s holding on the true penal consequence test should no longer be considered binding.”
The chief justice said that even if he had concluded that s. 11 does not apply, s. 68 also infringed the residual protection for the presumption of innocence under Charter s. 7, which guarantees everyone the right to life, liberty, and security of the person, and the right not to be deprived of them “except in accordance with the principles of fundamental justice.”
“In proceedings where a moral judgment is made and severe liberty‑depriving consequences are imposed as punishment, s. 7’s residual protection operates to require proof beyond a reasonable doubt,” Chief Justice Wagner wrote. “Major disciplinary offence proceedings involve an accusation of moral wrongdoing and the potential imposition of severe liberty-depriving consequences.” Because s. 68 of the Regulations permits findings of guilt on a lesser standard than the criminal standard of proof, s. 7 of the Charter is infringed.
The majority went on to hold that s. 68 could not be upheld under s. 1 of the Charter as a reasonable and demonstrably justified limit in a free and democratic society because it does not minimally impair the Charter rights.
While the provision’s object of promoting the expeditious resolution of inmate disciplinary proceedings is a pressing and substantial objective, “there is an obvious Charter‑compliant alternative,” which is to use the standard of proof “beyond a reasonable doubt,” the chief justice held.
Notably, the Chief Justice added, “I leave for another day the issue of whether s. 11 of the Charter is engaged if an inmate in Saskatchewan commits a minor disciplinary offence.”
Writing for the three dissenters, who would have affirmed the constitutionality of applying the civil standard of proof in inmate discipline proceedings, Justice Suzanne Côté would have dismissed the appeal. “Shubley remains good law and a binding precedent and must be applied in the present case,” she wrote, backed by Justices Malcolm Rowe and Mahmud Jamal. “As in Shubley, Saskatchewan’s inmate disciplinary proceedings are not criminal in nature but are administrative and designed to regulate and maintain prison order, and the sanctions stemming from the disciplinary proceedings are not true penal consequences within the meaning of s. 11 of the Charter,” she held. “Because the Wigglesworth test is not met, s. 11 has no application to Saskatchewan’s inmate discipline regime and it is therefore unnecessary to decide whether s. 11(d) is infringed.”
Moreover, although s. 7 of the Charter “is implicated because of the evident engagement of an inmate’s liberty interests, there is no infringement because the presumption of innocence as a principle of fundamental justice under s. 7 does not require a standard of proof beyond a reasonable doubt in the context of Saskatchewan’s inmate disciplinary process,” Justice Côté ruled.
Noel Busse, a Saskatchewan government spokesperson, said the province “is in the process of reviewing the implications of the decision with respect to major disciplinary offences” which “requires the use of the criminal standard of proof for more serious offences.”
“The decision did not rule on the constitutionality of the civil standard of the balance of probabilities for minor disciplinary offences,” he said, adding that the province of Saskatchewan has “nothing further to provide at this time” about the judgment’s implications.
Pierre Hawkins, public legal counsel of the John Howard Society of Saskatchewan, and his pro bono co-counsel, Michelle Biddulph of Toronto’s Greenspan Humphrey Makepeace LLP, told Law360 Canada the case stands for the proposition that inmates cannot be deprived of their liberty as punishment for wrongdoing unless that wrongdoing was proven beyond a reasonable doubt.
Michelle Biddulph, Greenspan Humphrey Makepeace LLP
“The primary impact on inmate discipline proceedings is that the standard of proof beyond a reasonable doubt must apply to all inmate discipline that carries potential penalties of segregation or loss of earned remission. This already occurs in the federal correctional system; the impact of today’s ruling is to require that this standard apply to all prisons in the country.”
Hawkins noted, however, that “the court was careful to confine its ruling only to proceedings where the state seeks to deprive someone of their liberty as punishment for wrongdoing.
Pierre Hawkins, John Howard Society of Saskatchewan
The Supreme Court’s majority confirmed that the presumption of innocence applies in non-criminal settings, “but only in proceedings where a moral judgment is made by the state and severe liberty-depriving consequences are imposed by the state as punishment,” Hawkins said. “The focus must be on the nature of the proceedings rather than the label that we apply to those proceedings.”
Biddulph said two aspects of the ruling break new legal ground: s. 11 of the Charter applies to inmate discipline proceedings and the presumption of innocence requires proof beyond a reasonable doubt outside of the pure criminal context.
“While both of these points had some support in the jurisprudence prior to this case, the court tied them together into an overarching and unified theory of how the constitutionality of punitive deprivations of liberty ought to be assessed,” she said.
“We feel that the judgment is quite clear and that the law is relatively clear,” she noted. “However, the dissent does identify some areas where more litigation is likely to result. One example is the regime that applies to breaches of conditional sentence orders, where the Criminal Code requires that if the Crown proves the breach on a balance of probabilities, the offender may be required to serve the rest of the conditional sentence in a correctional institution. We expect that, based on today’s ruling, we will be seeing some constitutional challenges to this aspect of the conditional sentence regime.”
Another area where more litigation might result relates to other aspects of inmate discipline, Biddulph suggested. “For example, in Saskatchewan most inmates are not granted any right to counsel at disciplinary hearings. If the Charter provides substantive protections in the inmate discipline regime, we may see some future litigation on the question of whether the Charter requires that an inmate be afforded a right to counsel before facing discipline for certain serious offences.”
The decision may also have an impact on the right to an independent and impartial decision-maker, she remarked. “Discipline charges in Saskatchewan are heard by panels of correctional managers and corrections officers, often colleagues or managers of the officer laying the charge. This seems to be contrary to the protections of s. 11.”
Asked whether the judgment might spark litigation by inmates who are, or were, punished for disciplinary offences based on the lower civil standard of proof, Biddulph speculated “there might be the odd habeas corpus. But given that the duration of punitive disciplinary segregation/loss of earned remission is capped under the provincial legislation, there will likely not be many people whose liberty is currently restricted as punishment for disciplinary offences and who would therefore be in a position to bring a habeas corpus,” she said.
“There may be some future litigation from persons whose liberty was deprived in the past on the lower standard, but whether such persons would be entitled to any remedy might require a novel approach to constitutional remedies,” Biddulph answered.
She noted her client is “extremely pleased” with the court’s decision. “It is the vindication of years of effort in litigating this important issue, and we are gratified that the majority of the Supreme Court saw the constitutional issue in the same way that we did. We are also extremely grateful to the many talented interveners who brought so many different thoughtful angles to the case.”
Vibert Jack, B.C. Civil Liberties Association
He said the BCCLA intervened to ask the Supreme Court to clarify the relationship between s. 7 and the other legal rights contained in ss. 8-14 of the Charter. “We argued that s. 7 can provide just as much protection as ss. 8-14, whether or not the latter sections apply in a particular case. In this way, s. 7 can fill any unintended gaps in the Charter’s legal protections.”
“The court agreed,” stated Jack, “finding that the law would be unconstitutional under s. 7 even if s. 11 did not apply.”
Photo of Supreme Court Chief Justice Richard Wagner: SCC Collection
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