Brandon Harder
Regina Leader-Post
The law regarding the standard of proof required to find a provincial inmate guilty of a disciplinary offence changed Friday.
The Supreme Court of Canada (SCC) ruled that a standard of proof beyond a reasonable doubt — the same standard used in criminal trials — must be used in inmate disciplinary hearings in provincial correctional facilities when a finding of guilt could result in certain punishments like segregation or loss of earned remission (early release).
That’s opposed to the previous standard, proof on a balance of probabilities, that has been used in Saskatchewan provincial facilities. In order to find an inmate guilty, that standard only required a disciplinary panel to find that it was “more likely than not” that an offence happened.
The 6-3 split decision from the nation’s highest court, which ruled in favour of the John Howard Society of Saskatchewan (JHSS), was released Friday. JHSS, which brought the appeal, advocates for inmates and people involved in the criminal justice system and was among multiple parties that made legal arguments before SCC judges, beginning on Oct. 8, 2024.
Pierre Hawkins, Public Legal Counsel for JHSS, says the decision will have a significant impact on inmates.
“I think that going forward we can expect that fewer inmates who are innocent of what they’re accused of will be punished for it,” he said.
Hawkins thinks inmates will find they’re being treated more fairly and that efforts will be made to resolve disciplinary matters “without resorting” to things like segregation and loss of earned remission.
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The decision from the SCC actually overturns a ruling from that court in 1990, which Hawkins says did not recognize how harsh a loss of earned remission or segregation can be.
“Any time the court overturns a precedent, especially on a constitutional issue, it’s a big deal.”
Hawkins also said it’s important to remember that around 80 per cent of inmates held in the provincial system are Indigenous.
“When you’re dealing with a system which so disproportionately impacts Indigenous people, you have to make sure that system is fair and seen to be fair.”
The SCC’s recent decision found that Section 68 of Saskatchewan’s Correctional Services Regulations, 2013 violates sections of the Charter of Rights and Freedoms regarding both liberty rights and the presumption of innocence and declared it to be “of no force and effect.”
The relevant section of the Charter regarding presumption of innocence holds that a person “charged with an offence” is entitled to a hearing by “an independent and impartial tribunal.”
In Saskatchewan, a discipline panel is made up of correctional staff, which Hawkins says is “the source of a lot of criticism” and a reason why inmates feel the system is unfair.
The JHSS said while the case is about Saskatchewan’s correctional system, the decision also applies elsewhere.
“I suspect that every province is going to have to go back to the drawing board a little bit and make sure that they take measures to make sure that their legislation complies with this ruling.”
bharder@postmedia.com
