Case in Brief

A Case in Brief is a short summary of a written decision of the Court, drafted in plain language. These summaries are prepared by communications staff of the Supreme Court of Canada. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.

John Howard Society of Saskatchewan v. Saskatchewan (Attorney General)

Case summary

The Supreme Court holds that the standard of proof of guilt beyond a reasonable doubt applies in inmate disciplinary proceedings.

Inmates charged with disciplinary offences in Saskatchewan’s provincial correctional institutions must appear before a disciplinary panel to answer to those charges. Under section 68 of Saskatchewan’s Correctional Services Regulations, 2013 (“Regulations”), the standard of proof in such proceedings is a balance of probabilities, meaning, it must be more likely than not that the inmate committed the offence. This standard of proof is used in all disciplinary proceedings, including major offences for which sanctions can include disciplinary segregation for up to 10 days or loss of up to 15 days of earned remission.

The John Howard Society of Saskatchewan challenged the regulations, asserting that the presumption of innocence requires that the standard of proof in disciplinary proceedings be proof of guilt beyond a reasonable doubt. In the lower courts, the John Howard Society based his argument only on section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the right to life, liberty and security of the person except in accordance with the principles of fundamental justice. The John Howard Society could not rely on section 11(d) of the Charter, which provides that any person charged with an offence has the right to be presumed innocent until proven guilty, because of the Supreme Court of Canada’s decision in R. v. Shubley, [1990] 1 S.C.R. 3. In that case, the Court held that inmate disciplinary proceedings in which disciplinary segregation and loss of earned remission are possible sanctions do not engage section 11 of the Charter.

The application judge held that section 68 of the Regulations does not violate section 7 of the Charter, concluding that neither the nature of inmate disciplinary proceedings, nor the severity of disciplinary segregation and loss of earned remission necessitated the heightened standard of proof of guilt beyond a reasonable doubt. The Court of Appeal agreed.

The John Howard Society appealed the section 7 issue to the Supreme Court. It also raised, as a new constitutional issue, the question of whether section 68 of the Regulations infringes section 11(d) of the Charter.

The Supreme Court has allowed the appeal

The presumption of innocence applies to inmate disciplinary proceedings

The Chief Justice, writing for the majority of the Court, concluded that section 68 of the Regulations infringes sections 7 and 11(d) of the Charter because it permits the imposition of imprisonment when a reasonable doubt as to the accused’s guilt may exist. Shubley’s conclusion that disciplinary segregation and loss of earned remission do not engage section 11 because they do not amount to imprisonment has been attenuated by this Court’s consistent direction that judges must interpret the Charter in a generous, rather than a formalistic, manner that gives effect to the purpose of the rights guarantee in question. The infringements to sections 7 and 11(d) cannot be saved by section 1 of the Charter, because the impairment to the inmates’ Charter rights was not minimal. To the extent that section 68 of the Regulations permits the imposition of disciplinary segregation and loss of earned remission for an inmate disciplinary offence on a lower standard of proof, it is inconsistent with the Constitution and must therefore be declared to be of no force or effect.