\n<\/p>\n
\u00a0<\/p>\n
In John Howard Society of Saskatchewan v Saskatchewan<\/em>, 2025 SCC 6<\/a> [John Howard Society], the Supreme Court of Canada (\u201cSCC\u201d) expanded the meaning of \u201cimprisonment\u201d under the \u201ctrue penal consequence\u201d test to include inmate disciplinary offences governed by Saskatchewan\u2019s Correctional Services Regulations [Regulations]. The Court found that s. 68 of the Regulations, which governs the standard of proof for finding an inmate responsible for a disciplinary offence, was inconsistent with ss.7 and 11(d) of the Charter of Rights and Freedoms, The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11<\/a> [Charter], because it required proof on a balance of probabilities.\u00a0<\/p>\n It is a hallowed principle of the criminal justice system that the guilt of a person charged with an offence must be proven beyond a reasonable doubt. R v Shubley, 1990 1 SCR 3<\/a> [Shubley], a 1990 decision, held that s.11 of the Charter, which applies to individuals charged with an offence,did not apply to inmate disciplinary proceedings. The case at hand overturns the Shubley precedent in holding that s. 11 does apply to inmate disciplinary proceedings (John Howard Society, para 32).\u00a0<\/p>\n Facts<\/strong><\/p>\n This appeal arose from the John Howard Society of Saskatchewan\u2019s (\u201cJHS\u201d) constitutional challenge to s. 68 of Saskatchewan\u2019s Regulations<\/em>, which sets the standard of proof in inmate disciplinary hearings at a balance of probabilities, even in the face of sanctions like segregation or loss of sentence remission. The JHS argued that this lower standard violates s. 11(d) of the Charter<\/em>, which guarantees the presumption of innocence (John Howard Society, <\/em>para 3).<\/p>\n In R v Wigglesworth,<\/em>1987 2 SCR 541<\/a> [Wigglesworth<\/em>], <\/em>a case involving a service offence heard before the RCMP Service Court, the SCC set out a two-prong test for determining whether an offence triggers\u00a0 s.11. The first prong of Wigglesworth <\/em>requires the proceedings in question to be \u201ccriminal in nature\u201d (John Howard Society, <\/em>para 27), and the second prong, requires that those where the proceedings have the potential of leading to \u201ctrue penal consequences\u201d (John Howard Society, <\/em>para 27).\u00a0<\/p>\n Under the Saskatchewan Regulations, <\/em>the consequences of disciplinary proceedings include disciplinary regulation for up to 10 days and a loss of up to 15 days of earned remission (John Howard Society, <\/em>para 3). Earned remission refers to reductions in an inmate\u2019s sentence for good behaviour in a correctional institution (John Howard Society, <\/em>para 13), permitting an inmate to serve part of their sentence outside the prison (John Howard Society, <\/em>para 180). In Shubley, <\/em>the SCC held that these kinds of inmate disciplinary proceedings satisfied neither the first nor the second Wigglesworth <\/em>prongs and therefore did not engage s. 11 (John Howard Society, <\/em>para 4). Specifically, the court found that inmate disciplinary proceedings were not \u201ccriminal in nature\u201d because they did not have the essential characteristics and public accountability purpose of criminal proceedings (John Howard Society, <\/em>para 5).\u00a0 They further did not lead to \u201ctrue penal consequences,\u201d since the penalties of disciplinary segregation or a loss of earned remission did not involve either punitive fines nor did they constitute a sentence of imprisonment (John Howard Society, <\/em>para 5 citing Shubley<\/em>, para 23). Importantly, in Shubley,<\/em> McLachlin C.J. (as she then was) held that a disciplinary proceeding\u2019s purpose was not to \u201cmete out criminal punishment, but to maintain order in the prison\u201d (John Howard Society, <\/em>para 160).\u00a0\u00a0<\/p>\n Judicial History<\/strong><\/p>\n Both the courts below concluded that neither the nature of inmate disciplinary proceedings nor the loss of earned remission warranted the beyond a reasonable doubt standard (John Howard Society, <\/em>para 4). Relying heavily on the SCC\u2019s decision in Shubley, <\/em>the application judge held that the loss of earned remission could not be equated with imprisonment (John Howard Society, <\/em>para 16).\u00a0<\/em><\/p>\n On appeal, the JHS argued that Shubley<\/em>\u2019s precedential value <\/em>has been lessened by recent jurisprudence that has adopted a more functional understanding of punishment (John Howard Society, <\/em>para 6). The Saskatchewan Court of Appeal disagreed, and concluded that a loss of earned remission is \u201cnot the same\u201d as the imposition of an additional period of incarceration (John Howard Society, <\/em>para 18). Moreover, the presumption of innocence requires proof of guilt beyond a reasonable doubt only for criminal offences that attract \u201ctrue penal consequences\u201d (John Howard Society, <\/em>para 19), and not at every instance where there is a deprivation of liberty.\u00a0<\/p>\n On further appeal, the SCC was tasked with determining whether s. 68 of the Regulations <\/em>infringes ss. 7 and 11(d) of the Charter <\/em>(John Howard Society, <\/em>para 20).\u00a0<\/p>\n Decision:\u00a0<\/strong><\/p>\n The Majority\u00a0<\/em><\/p>\n Wagner C.J., writing for the majority, allowed the appeal, finding that s. 68 of the Saskatchewan Regulations <\/em>infringes s. 11(d) of the Charter <\/em>and should be declared to be of no force and effect. In so doing, the Court announced that the Shubley <\/em>holding on \u201ctrue penal consequences\u201d should no longer be considered binding (John Howard Society, <\/em>para 48). The majority agreed with the JHS that recent jurisprudence has dictated that the Charter <\/em>must be read generously and in a manner that gives effect to the purpose of the right in question. Under such a reading, an inmate facing the risk of either disciplinary segregation or a loss of earned remission does face a \u201ctrue penal consequence\u201d (John Howard Society, <\/em>para 7). Permitting an inmate to serve part of their sentence outside the prison (John Howard Society, <\/em>180), as earned remission does, functions as a de facto <\/em>reduction in an inmate\u2019s sentence of imprisonment (John Howard Society, <\/em>para 68). Thus, s. 11 is engaged, and s. 68 of the Regulations <\/em>infringes the Charter<\/em> as it permits the imposition of imprisonment even where a reasonable doubt as to the accused\u2019s guilt may exist (John Howard Society, <\/em>para 8).\u00a0<\/p>\n Importantly, the majority\u2019s decision highlighted the limits of a formalistic understanding of imprisonment (John Howard Society, <\/em>para 39) and advanced a more functional approach, which seeks to collapse the distinction between a \u201csentence of imprisonment\u201d and its \u201cconditions\u201d (John Howard Society, <\/em>para 40). Canadian courts, the majority found, recognize that an inmate\u2019s conditions <\/em>of imprisonment affect the underlying interests that the Charter <\/em>seeks to protect (John Howard Society, <\/em>paras 41, 47); in the decades after Shubley<\/em>, the jurisprudence had come to recognize that deprivations of liberty can occur when the conditions within <\/em>a prison environment change (John Howard Society, <\/em>para 43). As such, \u201cimprisonment,\u201d through a functional reading, includes disciplinary segregation and the loss of earned remission (John Howard Society, <\/em>para 48).\u00a0<\/p>\n The majority also concluded that even if s. 11 did not apply, where liberty deprivation is at stake and punishment is a possibility, s. 7\u2019s \u201cresidual protection\u201d operates to require proof beyond a reasonable doubt (John Howard Society, <\/em>paras 2, 80). Thus, the SCC held, ss. 11(d) and 7 were infringed by s. 68 of the Regulations<\/em>.\u00a0<\/p>\n The SCC then found that s. 1 of the Charter <\/em>cannot save these breaches. At the minimal impairment stage of test from R v Oakes, <\/em>1986 1 SCR 103 [Oakes<\/em>], which determines whether the infringement of the Charter <\/em>can be saved by the reasonable limits set out in s. 1, the Court held that setting a standard of proof beyond a reasonable doubt is an \u201cobvious Charter-<\/em>compliant alternative\u201d (John Howard Society, <\/em>para 96). Therefore, s. 68 of the Regulations <\/em>cannot be saved by s. 1 of the Charter.\u00a0<\/em><\/p>\n The Dissent<\/em><\/p>\n Justice C\u00f4t\u00e9, writing\u00a0 a three-person dissent, found that s. 11(d) of the Charter <\/em>does not apply to Saskatchewan\u2019s inmate disciplinary proceedings, because a charge of \u201cinmate misconduct\u201d does not come within the meaning of being \u201ccharged with an offence\u201d under s. 11 of the Charter <\/em>(John Howard Society, <\/em>para 106). She found that since these kinds of proceedings are administrative and not criminal, (John Howard Society, <\/em>para 106), the first prong of the Wigglesworth<\/em> test is not satisfied.\u00a0<\/p>\n Under the second prong of the Wigglesworth <\/em>test, the dissent found that the sanctions under s. 68 seek to \u201cmaintain internal discipline within a limited sphere of activity\u201d (John Howard Society, <\/em>para 106), and cannot be categorized as a penalty. A \u201ctruly\u201d penal sanction, according to the dissent, is one that seeks to redress a \u201cwrong done to society\u201d (John Howard Society, <\/em>para 154 citing Wigglesworth<\/em>, para 561). This is to be juxtaposed with a loss of remission, which functions to \u201cmaintain order\u201d (John Howard Society, <\/em>para 237) within the confines of a prison. In the dissent\u2019s view, earned remission is a privilege whose revocation serves \u201cto encourage compliance\u201d (John Howard Society, <\/em>para 237). Therefore, such revocation is not a punishment (John Howard Society,<\/em>para 237).\u00a0<\/p>\n Analysis<\/strong><\/p>\n The Rights of Prisoners: Against Insulating Correctional Penalties from Charter Scrutiny\u00a0<\/em><\/p>\n The majority importantly underlines that the Wigglesworth <\/em>\u201ctrue penal consequence\u201d prong must be read functionally so that state institutions cannot circumvent the application of the Charter <\/em>(John Howard Society, <\/em>para 55). Disciplinary segregation can be thought of as constructing a \u201cprison within a prison\u201d (John Howard Society, <\/em>para 43), and loss of earned remission has the effect of extending an inmate\u2019s period of incarceration (John Howard Society, <\/em>para 58). To underscore the true effects of disciplinary segregation, the majority discusses the \u201cPrison of Isolation\u201d, the name given to the block of segregated cells at the Kingston Penitentiary, whose history and name demonstrate that it was conceived of as a distinct form of imprisonment (John Howard Society, <\/em>para 63).\u00a0<\/p>\n By requiring that a measure be \u201ctruly penal\u201d to attract Charter <\/em>protection, the dissent sets up a rigid dichotomy through which they distinguish penal and disciplinary regimes. Drawing on Wigglesworth<\/em>, they tie s. 11 protection to matters that promote \u201cpublic order […] within a public sphere of activity\u201d (John Howard Society, <\/em>para 149), thereby casting correctional institutions as outside that sphere. Correctional institutions, according to this view, do \u201cinternal\u201d work, and what occurs within their four walls is done at the behest or discretion of administrators. This framing is reinforced by the dissent\u2019s characterization of the s. 68 sanctions as \u201cdisciplinary,\u201d which constructs an image of those punishments as thoroughly \u201cprivate\u201d and insulated from external review (John Howard Society, <\/em>para 223). In doing so, the dissent does not adequately answer the concern that excluding correctional institutions from the \u201ctruly penal\u201d category effectively shields correctional practices from Charter <\/em>scrutiny.\u00a0<\/p>\n Moreover, the dissent advances a problematic view of criminal law \u2013 namely, the finding that disciplinary offences function merely to maintain order, security, and safety \u201cwithin\u201d correctional institutions (John Howard Society,<\/em> para 208). It seems that the dissent justifies the need for a less onerous standard of proof in the name of expediency: the lower standard of proof fulfills the need to give \u201cadministrative agility\u201d to those who work within correctional institutions (John Howard Society, <\/em>para 211). In response to this rigid binary construction of discipline and punishment, prisoners\u2019 rights movements have continually emphasized that these seemingly \u201cprivate\u201d matters did, indeed, attract real, criminal sanctions and therefore, required constitutional protection. Prisoners rights movements are not alone in advancing these concerns. Canadian jurisprudence has also come to reflect a concern about the rights of incarcerated people with respect to the Charter<\/em>. In Mission Institution v Khela, <\/em>2014 SCC 24<\/a> [Mission Institution<\/em>], the SCC explicitly held that the rule of law must run \u201cwithin penitentiary walls\u201d (Mission Institution, <\/em>para 29) to protect the rights of incarcerated people. Ultimately, the dissent\u2019s approach fails to consider this social and jurisprudential development, and runs counter to the understanding that the conditions of one\u2019s incarceration substantively affect one\u2019s liberty.\u00a0<\/p>\n Conclusion<\/strong><\/p>\n In Allan Manson\u2019s \u201cSolitary Confinement, Remission and Prison Discipline\u201d the author writes that the Shubley <\/em>holding, in failing to \u201cinquire more carefully into the factors of imprisonment does not do justice to the expanded function of the judiciary in the post-Charter<\/em> era.1<\/a><\/sup> John Howard Society <\/em>is a significant affirmation of the rights of incarcerated people that will satisfy critics of the Shubley <\/em>decision. Moreover, I surmise that this decision will empower future litigation involving incarcerated people: in recent news, for instance, there exists a class action involving prisoner lockdowns that has been put forward in Ontario, alleging breaches of ss. 7 and 12 of the Charter<\/em>.2<\/a><\/sup> The decision in John Howard Society <\/em>will loom large in such cases.<\/p>\n<\/div>\n\n","protected":false},"excerpt":{"rendered":" \u00a0 In John Howard Society of Saskatchewan v Saskatchewan, 2025 SCC 6 [John Howard Society], the Supreme Court of Canada (\u201cSCC\u201d) expanded the meaning of \u201cimprisonment\u201d under the \u201ctrue penal consequence\u201d test to include inmate disciplinary offences governed by Saskatchewan\u2019s Correctional Services Regulations [Regulations]. The Court found that s. 68 of the Regulations, which governs […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[97],"tags":[204511,204513,14157,60564,204512],"dealstore":[],"offerexpiration":[],"class_list":["post-7042059","post","type-post","status-publish","format-standard","hentry","category-legal","tag-beyond-a-reasonable-doubt","tag-court-ca","tag-discipline","tag-inmate","tag-prison-law"],"yoast_head":"\n