Supreme Court to rule on Sask. jail policy that a prisoners' advocate says violates the Charter

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

A Saskatchewan advocate for prisoners’ rights is taking the province to Canada’s highest court over a regulation that it says lets correctional workers discipline inmates without sufficient proof.

The regulations stipulate that when an inmate is accused of a major or minor offence, anything from disruptive behaviour to violent assault, it only needs to seem probable before actions are taken — a lower standard than the “beyond a reasonable doubt” test used in criminal trials.

Pierre Hawkins, public legal counsel for the John Howard Society of Saskatchewan, argues this lower standard of proof violates inmates’ Charter rights to life, liberty and security.

On Thursday, the Supreme Court of Canada, which by its nature is choosy about taking on matters, announced it would hear the case.

If the court rules in the 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.

Only the legislation governing federal penitentiaries requires proof beyond a reasonable doubt before an inmate is disciplined.

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.

“So this will impact thousands and thousands of hearings every year, regardless of which way things go at the Supreme Court,” Hawkins told CTV News.

“Some really serious consequences can result from these hearings. People can be put in what is effectively segregation.”

Hawkins also said people can lose earned credit for good behaviour and have their release date pushed back as a result of the discipline hearings held at jails.

In an emailed statement to CTV News, the Ministry of Corrections said the Charter issue only applies in the criminal context, and that “the inmate disciplinary process is an administrative one.”

Hawkins says 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.”

The ministry said it’s prepared to defend its rules.

“Saskatchewan respects the decision to allow this case to move to the Supreme Court of Canada. Saskatchewan will appear as the respondent to defend the constitutionality of the Correctional Services regulations.”

It’s not yet known when the Supreme Court will hear the case.