APPEAL WATCH: JHS v the Government of Saskatchewan on Inmate Discipline Regimes
The Supreme Court of Canada (“SCC”) is set to hear an appeal out of the Court of Appeal for Saskatchewan (“SKCA”) on inmate discipline regimes in the case of John Howard Society of Saskatchewan v The Government of Saskatchewan (The Attorney General for Saskatchewan), 2022 SKCA 144 [JHS].
The government of Saskatchewan operates four provincial correctional centers. Within these centers, the inmate disciplinary system for offenses is codified in The Correctional Services Act (“CSA”), and The Correctional Services Regulations (“Regulations”) (JHS, para 4).
The standard of proof for a disciplinary offense is outlined in s 68 of the Regulations: “A discipline panel shall not find an inmate responsible for a disciplinary offense unless it is satisfied on a balance of probabilities that the inmate committed that offense” (JHS, para 7). The Inmate Disciplinary Hearing Manual elaborates on this burden of proof, stating that “the decision-maker(s) must determine, based on the evidence before them, whether it is more likely than not that the event happened as described.”
Ss 77(1) and 77(2) of the CSA set out sanctions that can be imposed on an inmate found responsible for committing a major and minor disciplinary offense, respectively. Sanctions include reprimand, loss of privileges, confinement, and assignment of extra duties. Notably, segregation and the loss of earned remissions is only available for major offenses. (JHS, paras 9-10).
The John Howard Society argues that s 68 of the Regulations violates the Charter by instating a lower standard to deprive liberty than required under s 7, and as such is constitutionally invalid (JHS, para 12).
The John Howard Society filed an application in the Court of Queen’s Bench. Both parties conceded that the John Howard Society had the necessary public interest standing to bring the application, and that the penalties may deprive inmates of their liberty as the term is used in s 7 of the Charter (JHS, para 15). The judge identified the issue at bar as “does ‘fundamental justice’ require proof of infraction of a rule on a balance of probabilities or proof beyond a reasonable doubt?” (JHS, para 14). The judge, after examining relevant jurisprudence, noted that a finding of guilt for an offense–including a prison disciplinary offense–requires proof beyond a reasonable doubt under s 7. However, he ultimately held that “guilt” applies only in the criminal context, not to prison administrative’s finding of responsibility (JHS, para 19). Moreover, the judge found that the nature of penalties, specifically forfeiture of earned remission and segregation, do not rise to the level of a Charter-described deprivation of s 7 (JHS, para 20).
There were two issues before the SKCA: 1) does s 7 of the Charter require proof beyond a reasonable doubt for inmate disciplinary proceedings conducted under the Regulations; and 2) if s 68 of the Regulations violates s 7 of the Charter, is it saved under s 1?
The John Howard Society asserts that where liberty is at stake, the presumption of innocence requires proof beyond a reasonable doubt, per s 7 jurisprudence. They argue that this principle should be applied to inmate discipline proceedings (JHS, para 25). The government submits that the existing principle of fundamental justice applies only in the criminal context (JHS, para 26). Further, they assert that in order to require inmate discipline offenses to be proven beyond a reasonable doubt in administrative proceedings, the SKCA would have to recognize a new principle of fundamental justice (JHS, para 27). The John Howard Society does not ask for this recognition and instead relies on the liberty principle (JHS, para 27).
The test for determining whether there is a s 7 violation involves a two-pronged inquiry: 1) does the impugned law interfere with or deprive the applicant of their life, liberty, or security of the person; and, if so, 2) does this interference or deprivation accord with the principles of fundamental justice? (JHS, para 28) The SKCA finds that while s 68 of the Regulations does engage the liberty interests of inmates, the presumption of innocence requiring proof beyond a reasonable doubt does not encompass inmate discipline regime (JHS, para 29).
The SKCA begins their analysis by recognizing the purpose of the inmate discipline regimes, as established in both the CSA and Regulations: to efficiently maintain order, security, and safety in the institutions. This objective is balanced against procedural fairness within the administrative context (JHS, para 30).
The Court then turns specifically to the sanctions at stake; namely, the segregation and loss of earned remission. With regards to the first sanction, the John Howard Society submits that segregation, relying on British Columbia Civil Liberties Association v Canada (Attorney General), 2019 BCCA 228, to argue that any period of solitary confinement exceeding 15 days constitutes cruel and unusual punishment (JHS, para 32). However, the SKCA recognizes that the segregation utilized under the CSA is neither indefinite nor found by the lower court judge to be equivalent to solitary confinement. Moreover, ss 77(1)(c) and 77(1)(d) of the CSA limit the period of confinement or segregation to 10 days (JHS, para 32).
With regards to the second sanction, the SKCA begins by noting that the loss of up to 15 days of earned remission under s 77(1)(h) of the CSA has only been imposed in 0.3% of cases in 2019 (JHS, para 35). They also recognize that the loss of remission does not increase the duration of an inmate’s sentence–it takes away credit of earned remission that they have previously obtained through good conduct (JHS, para 37). Effectively, where this sanction is applied, an inmate will be released later than they would have been had their credit remained intact. The John Howard Society refers to this as “the practical severity of the loss to the individual,” however, the SKCA finds that a delayed release is not equivalent to imposing an additional period of incarceration (JHS, para 37).
The Court finds that while the availability of these two sanctions engages inmates’ liberty interest, the nature of the engagement is not equivalent to when criminal penal consequences are involved. The SKCA recognizes that while the consequences of disciplinary offenses are significant, they are not in the same category as consequences arising from criminal offenses (JHS, para 40).
After conducting a review of the relevant jurisprudence, the SKCA concludes that the presumption of innocence cannot be extended to require proof beyond a reasonable doubt for charges under inmate discipline regimes. The infringement upon liberty that arises from an administrative proceeding differs from a criminal hearing both in nature and purpose. Consequently, s 7 of the Charter does not require a disciplinary infraction to be proven on a standard of proof beyond a reasonable doubt. As such, there is no s 1 analysis (JHS, para 67).
Federal versus Provincial Distinctions
The SKCA recognizes that other jurisdictions vary in how they approach the burden of proof in disciplinary hearings. They note that federal penitentiaries conduct disciplinary hearings using the beyond a reasonable doubt standard. However, none of the provinces or territories have this legislated requirement: they either decide on a balance of probabilities or the legislation is silent (JHS, para 64).
I suspect that the SCC decided to grant leave to this case in order to develop jurisprudence and adopt a solidified approach to the standard of proof in disciplinary hearings. The lack of uniformity across the country will lead to confusion at best and Charter infringement at worst.
Charter Values and its Implications
Although I agree with the SKCA in their finding that the Charter does not apply to inmate disciplinary regimes, I wonder if the SCC’s commitment to the vague notion of Charter values is likely to overturn the SKCA’s decision. In Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 21 [CSFTNO], the SCC found that the Minister of Education, Culture, and Employment of the Northwest Territories must consider Charter values even when they do not directly apply. Effectively, courts can now engage in a Charter analysis without fact-matrices that ground a Charter right in the first place by looking to the underlying (and unbound) notion of Charter values.
Following this approach, the SCC might find that although administrative decision-makers do not need to apply the Charter directly to inmate disciplinary proceedings, they must nevertheless consider underlying Charter values. Under this conceptualization, the SCC might require such decision-makers to recognize s 7 values and abide by a beyond a reasonable doubt standard.
Regardless of whether the SCC decides to indulge in such reasoning, the fact that the jurisprudence allows for it is troubling. The issue with Charter–value jurisprudence is that it is completely unrestricted. In CSFTNO, the SCC attempts to define Charter values as “those that ‘underpin each right and give it meaning’… Charter values are inseparable from Charter rights which ‘reflect’ them” (CSFTNO, para 75). If, as per CSFTNO, these values can be looked to for analysis regardless of whether the right itself applies, then all analytical frameworks become irrelevant. Why engage in, for example, a s 7 inquiry at all when even failing the two-pronged test could nevertheless lead to a consideration of Charter values?
In hearing the JHS case, the SCC will conclude which standard of proof applies to inmate disciplinary regimes: balance of probabilities or beyond a reasonable doubt. While the SKCA found that the disciplinary provisions do not invoke s 7 protections and are thus not subject to the beyond a reasonable doubt standard, the SCC might, through a Charter values analysis, find that the standard nevertheless applies.
This article was edited by Ariel Noemi Montana.