Canada's highest court hears arguments that Sask. jail policy violates Charter

The John Howard Society of Saskatchewan (JHSS) appeared in the Supreme Court of Canada Tuesday challenging a regulation that it says lets provincial correctional workers discipline inmates without sufficient proof.

The regulations stipulate that when an inmate in provincial jail is accused of a major or minor offence, anything from disruptive behaviour to violent assault, it only needs to be proven more likely than not before actions are taken — a lower standard than the “beyond a reasonable doubt” test used in criminal trials.

“There is a problem with the way discipline is administered in Saskatchewan correctional facilities,” JHSS Lawyer Pierre Hawkins told the court tribunal. “Inmates are found guilty and subjected to harsh sanctions by panels of prison guards and managers on a standard too low to require anything approaching certainty as to their guilt.”

The prisoners' rights advocate said in a news release it believes inmates should only be disciplined if staff can prove “beyond a reasonable doubt” that rules or regulations were broken — mirroring the current practice in federal prisons. It's arguing using the lower standard of proof violates inmates' Charter rights to life, liberty and security.

According to the John Howard Society, when a provincial inmate is accused of breaking a rule, a hearing is held. If they are found guilty based on a balance of probabilities, they could face harsh punishments, including being put into segregation, losing earned credit for good behaviour, and having their release date pushed back.

“The Charter must stand to protect individuals from such harsh and often arbitrary state action,” he added. “For the state to maintain this system for certain kinds of penalties, things which lengthen an inmate’s time in prison, would attract the higher standard we seek.”

In questioning the argument, Supreme Court Justice Malcome Rowe likened the challenge to a school setting.

“We’re going to have a court system inside the prisons with independent jurists,” the justice said. “Presumably we’ll have akin to that in schools. Principals can tell you, ‘You have detention.’ There’s going to be a set of proceedings there as well because this is about maintaining order and discipline.”

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“We’re going to judicialize the whole world,” Rowe added.

Hawkins says the case will have an impact on thousands of inmates in Saskatchewan correctional facilities. According to Saskatchewan Ministry of Corrections data submitted to the courts, there were about 6,200 disciplinary charges laid in 2019 across the four provincial correctional centres.

The province declined to comment on the story on Monday, but in a statement to CTV News in January, the Ministry of Corrections argued the Charter issue only applied in a criminal trial, and that "the inmate disciplinary process is an administrative one."

In the statement, the ministry said it's prepared to defend its rules.

If the court rules in the John Howard Society's favour, Hawkins says it could have a nation-wide impact, as provinces across Canada use the same lower standard of proof in their disciplinary processes.

The JHSS is a non-profit that provides prevention, intervention, support services and advocacy for individuals who are at risk or are involved in the criminal justice process.

- With files from Drew Postey and Rory MacLean