The Supreme Court of Canada has bolstered the rights of inmates in provincial jails who are accused of serious offences while incarcerated in a major ruling Friday that broke with a long-standing precedent.
The decision will reform how provinces conduct discipline in their jails when there are incidents such as assaults. For inmates, allegations will be subject to a more detailed review.
The 6-3 decision, written by Chief Justice Richard Wagner, represents a rare reversal from the Supreme Court on an established precedent. The Chief Justice described it as “one of the exceptional cases” in which the top court weighs a new constitutional issue.
The question was how inmates in provincial jails are disciplined. Those who are accused of violating prison rules, in Saskatchewan and other provinces, are judged on what’s called the balance of probabilities – whether it is more likely than not they committed an offence.
That is a lower standard of proof than beyond a reasonable doubt guaranteed by the presumption of innocence in the Charter of Rights and Freedoms.
At the Supreme Court, the John Howard Society of Saskatchewan argued inmates in provincial jails deserve that Charter right. Chief Justice Wagner and a majority of the Supreme Court agreed. Federal jails have long adhered to this higher standard.
“This is a huge victory for prisoner rights,” said Samara Secter, a lawyer at Addario Law Group LLP in Toronto, who represented an intervenor in the case, the Queen’s Prison Law Clinic. “A prison is not a Charter-free zone.”
Before Friday’s ruling, however, a 1990 Supreme Court precedent concluded that inmate disciplinary proceedings were not criminal in nature, like trials in normal courts outside a jail. In a 3-2 decision, the Supreme Court 35 years ago ruled that significant punishments levied in jail did not merit the Charter protection of beyond a reasonable doubt.
The stakes for inmates in such situations are high. Those who are found guilty of a major disciplinary offence can be put in segregation or have their sentences effectively extended, with release dates pushed further into the future.
Chief Justice Wagner focused on this in the majority’s decision. He called such punishments “a true penal consequence” and said that while departing from precedent “should not be taken lightly,” he declared the 1990 ruling is no longer binding. Echoing the dissent in the 1990 decision, Chief Justice Wagner said segregation has always been known as “a uniquely severe form of punishment for inmates.”
These ideas girded the Chief Justice’s primary conclusion: Proof of guilt beyond a reasonable doubt “applies to persons behind the walls of correctional institutions who are charged with disciplinary offences.”
The ruling will reverberate among the provinces, starting in Saskatchewan, where the John Howard challenge was first heard and was dismissed by the lower courts. After the ruling Friday, the Saskatchewan government in a statement said it is “reviewing the implications of the decision” and acknowledged the top court now requires a higher standard of proof for serious offences.
Provincial jails incarcerate people on sentences of less than two years, as well as those who are awaiting trial and have been denied bail, or who are awaiting sentencing.
In federal prisons, where inmates are sentenced to two years or more, the standard of proof for serious allegations over incidents in jail has been beyond a reasonable doubt since 1992. Such allegations are adjudicated by an independent chairperson, rather than a jail administrator.
The top court ruling means provinces will now have to follow the same standard, said Pierre Hawkins, public legal counsel at the John Howard Society of Saskatchewan.
Mr. Hawkins, who highlighted the overrepresentation of Indigenous people in Saskatchewan jails, has worked closely with inmates accused of violations in recent years. He said the now-invalidated provincial rules stoked a “sense of unfairness” and the process to weigh alleged violations was colloquially described as a “kangaroo court.”
“People need to be treated with fairness,” said Mr. Hawkins. “These are human beings who have dignity and want to live their lives, albeit strictly limited.”
Some legal scholars on Friday questioned the Supreme Court’s willingness to shift away from precedent, such as Kerry Sun, a Canadian doctoral law student at the University of Oxford. In a social-media post, he wondered what it meant for other precedents.
The dissenting justices also underlined precedent. In the 6-3 judgment, Justice Suzanne Côté wrote the dissent, as she often does. She was joined by Justices Malcolm Rowe and Mahmud Jamal. They would have dismissed the John Howard appeal.
Justice Côté concluded the 1990 Supreme Court decision “remains good law and a binding precedent and must be applied in the present case.”
The John Howard case at the top court, heard over two days last October, attracted wide attention from the legal community. There were 15 intervenors, with a range of civil society groups and attorneys-general from several provinces and the federal government.
The Saskatchewan government had argued a lower standard of proof is necessary to maintain order and safety in provincial jails. Groups such as the Canadian Civil Liberties Association argued proof beyond a reasonable doubt is necessary in part because of well-documented systemic bias in jails against people from marginalized groups, such as Indigenous people.