The Supreme Court of Canada reserved its decision on Wednesday in a case challenging the constitutionality of Saskatchewan’s prison disciplinary procedures, which were said to violate inmates’ rights under the Canadian Charter of Rights and Freedoms.
The John Howard Society of Saskatchewan (JHSS) challenged section 68 of the procedural rule, which allows correctional workers to find an inmate responsible for a disciplinary offense based on a lower standard of proof – “balance of probabilities” – rather than the more stringent “beyond a reasonable doubt” standard used in criminal trials. JHSS argued that this lower threshold for determining guilt infringes upon inmates’ Charter rights, specifically section 7, which guarantees the right to life, liberty, and security of the person.
On the other hand, the Saskatchewan Ministry of Corrections, Policing and Public Safety contended that the Charter right only applies in a criminal hearing. Accordingly, presumption of innocence does not apply to inmates in disciplinary hearings, which are administrative in nature. Further, according to data from the Saskatchewan Ministry of Corrections submitted to the courts, approximately 6,200 disciplinary charges had been laid in 2019 across the province’s four correctional centers, highlighting the potential impact the ruling could have had.
During the hearing, Supreme Court Justice Malcome Rowe raised questions about the potential broader implications of the challenge and drew a parallel to school settings, suggesting that a ruling in favor of the JHSS could lead to the “judicialization” of various disciplinary contexts beyond prisons. Additionally, the outcome of this case could have far-reaching consequences beyond Saskatchewan, as provinces across Canada currently employ similar lower standards of proof in their disciplinary processes.
The British Columbia Civil Liberties Association (BCCLA), intervening in the case, urged the court to clarify the relationship between section 7 and other legal rights outlined in sections 8-14 of the Charter, arguing that section 7 should provide equivalent protection to these sections, when they do not apply in a specific context. Sections 8-14 of the Charter provide constitutional protections to an accused in the criminal justice system, including the right to be secure against unreasonable search or seizure, the right to a fair trial within a reasonable time and the right against self-incrimination.
This case highlights the ongoing debate surrounding the balance between maintaining order in correctional facilities and protecting the rights of incarcerated individuals. In September, a new report showed a surge in pre-trial detentions at Nova Scotia jails. Additionally, a report in August by the British Columbia rights commissioner highlighted systemic inequalities in the province’s justice, health and child welfare systems. A Toronto court judge also heard as part of an agreed statement of facts in August that a teen girl was strip-searched six times in custody in violation of provincial laws.
