Sask. non-profit making its case to the Supreme Court that provincial jail policy violates the Charter

The Supreme Court of Canada is seen on Friday, June 16, 2023, in Ottawa. THE CANADIAN PRESS/Adrian Wyld

The John Howard Society of Saskatchewan will appear in front of the Supreme Court of Canada on 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.

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. 

According to John Howard Society lawyer Pierre Hawkins, this increases the risk that inmates will be punished for infractions they didn't even commit.

“This case is [not just] about whether the government has to prove, with any kind of certainty, that you did something wrong before putting someone in segregation. It is about preventing the arbitrary punishment of people who didn’t break the rules,” said Hawkins.

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Hawkins told CTV News in a January interview that it’s the John Howard Society’s position that if jails are accusing an inmate of an offence that could result in them having their already limited freedoms curtailed even further, they ought to be able to prove the allegation beyond a reasonable doubt.

This should be easy to do inside a jail, he says.

“It’s important to note here that we’re dealing with what are some of the most controlled environments on earth, or at least some of the most surveilled environments on earth,” Hawkins said.

“The powers of search within a correctional facility are massive. What happens in public areas or just about anywhere other than a cell is recorded on video. So, the institutions have a tremendous power to prove wrongdoing.”

One common infraction Hawkins sees in his practice is when contraband is found in a cell housing two cellmates.

“Our correctional actors say you’re responsible for everything that’s inside your cell. Both inmates get charged, both inmates get convicted,” he said.

“That approach often sees one person who is innocent get convicted and suffer consequences, and so that scenario becomes a lot harder, or happens much less often when you have a higher standard.”

Arguments before the Supreme Court will begin at 8 a.m. CST on Tuesday. Proceedings will continue until the end of the day Wednesday.

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 John Howard Society of Saskatchewan (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.