Canada’s highest court has struck down a Saskatchewan jail discipline regulation that it says violates inmates’ Charter rights by letting provincial correctional workers subject inmates to segregation and other severe discipline without sufficient proof of wrongdoing.
In a 6-3 decision released Friday morning, the Supreme Court of Canada ruled in favour of the John Howard Society of Saskatchewan (JHSS) in its case against the provincial government over an inmate discipline policy that’s been characterized as a “kangaroo court.”
“Inmates feel like they don’t get a fair shake, and I tend to agree with them in a lot of cases,” said Pierre Hawkins, legal counsel for JHSS.
In provincial jails, inmates accused of anything from disruptive behaviour to violent assault could be found guilty on a balance of probabilities. This is a lower standard than in a criminal trial, which must prove something “beyond a reasonable doubt” — proof that approaches certainty.
However, since the punishments often include some form of segregation or loss of liberty — what the supreme court characterizes as severe “penal consequences” — Chief Justice Richard Wagner agreed inmates are entitled to the presumption of innocence and the higher standard of proof should apply.
In his written decision, Wagner ruled the now-defunct Saskatchewan correctional regulation Section 68 violates both sections seven and section 11-D of the Charter of Rights and Freedoms.
Hawkins says there are about 6,500 of these type of disciplinary hearings in Saskatchewan jails every year, and about 30 to 40 per cent of those lead to some form of segregation or loss of liberty.
One situation he sees regularly is when two inmates share a cell and guards find contraband.
“Cases where inmates don’t appear to know that the item is in the cell, or at least that they may know, but it doesn’t belong to them, it belongs to their cellmate, and they still wind up being held responsible,” said Hawkins.
“It’s those kinds of issues that lead to this unfairness and that make inmates think, ‘Oh, I’m not I’m not getting a fair shake here.’”
While the supreme court’s decision specifically strikes down Saskatchewan’s regulation, the impact will reverberate through provincial jails Canada-wide.
“In every province across the country, officials are going to have to go back to the drawing board. They are going to have to see how to bring their system into compliance with this ruling,” Hawkins said.
In a statement to CTV News, the Saskatchewan Ministry of Justice said it is in the process of reviewing the implications of the Supreme Court of Canada’s decision.
The ministry says the decision will require the higher, criminal standard of proof for more serious offences, but not minor infractions.
“The decision did not rule on the constitutionality of the civil standard of the balance of probabilities for minor disciplinary offences.”
