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In John Howard Society of Saskatchewan v Saskatchewan, 2025 SCC 6 [John Howard Society], the Supreme Court of Canada (“SCC”) expanded the meaning of “imprisonment” under the “true penal consequence” test to include inmate disciplinary offences governed by Saskatchewan’s Correctional Services Regulations [Regulations]. The Court found that s. 68 of the Regulations, which governs the standard of proof for finding an inmate responsible for a disciplinary offence, was inconsistent with ss.7 and 11(d) of the Charter of Rights and Freedoms, The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], because it required proof on a balance of probabilities.
It is a hallowed principle of the criminal justice system that the guilt of a person charged with an offence must be proven beyond a reasonable doubt. R v Shubley, 1990 1 SCR 3 [Shubley], a 1990 decision, held that s.11 of the Charter, which applies to individuals charged with an offence,did not apply to inmate disciplinary proceedings. The case at hand overturns the Shubley precedent in holding that s. 11 does apply to inmate disciplinary proceedings (John Howard Society, para 32).
Facts
This appeal arose from the John Howard Society of Saskatchewan’s (“JHS”) constitutional challenge to s. 68 of Saskatchewan’s Regulations, which sets the standard of proof in inmate disciplinary hearings at a balance of probabilities, even in the face of sanctions like segregation or loss of sentence remission. The JHS argued that this lower standard violates s. 11(d) of the Charter, which guarantees the presumption of innocence (John Howard Society, para 3).
In R v Wigglesworth,1987 2 SCR 541 [Wigglesworth], a case involving a service offence heard before the RCMP Service Court, the SCC set out a two-prong test for determining whether an offence triggers s.11. The first prong of Wigglesworth requires the proceedings in question to be “criminal in nature” (John Howard Society, para 27), and the second prong, requires that those where the proceedings have the potential of leading to “true penal consequences” (John Howard Society, para 27).
Under the Saskatchewan Regulations, the consequences of disciplinary proceedings include disciplinary regulation for up to 10 days and a loss of up to 15 days of earned remission (John Howard Society, para 3). Earned remission refers to reductions in an inmate’s sentence for good behaviour in a correctional institution (John Howard Society, para 13), permitting an inmate to serve part of their sentence outside the prison (John Howard Society, para 180). In Shubley, the SCC held that these kinds of inmate disciplinary proceedings satisfied neither the first nor the second Wigglesworth prongs and therefore did not engage s. 11 (John Howard Society, para 4). Specifically, the court found that inmate disciplinary proceedings were not “criminal in nature” because they did not have the essential characteristics and public accountability purpose of criminal proceedings (John Howard Society, para 5). They further did not lead to “true penal consequences,” since the penalties of disciplinary segregation or a loss of earned remission did not involve either punitive fines nor did they constitute a sentence of imprisonment (John Howard Society, para 5 citing Shubley, para 23). Importantly, in Shubley, McLachlin C.J. (as she then was) held that a disciplinary proceeding’s purpose was not to “mete out criminal punishment, but to maintain order in the prison” (John Howard Society, para 160).
Judicial History
Both the courts below concluded that neither the nature of inmate disciplinary proceedings nor the loss of earned remission warranted the beyond a reasonable doubt standard (John Howard Society, para 4). Relying heavily on the SCC’s decision in Shubley, the application judge held that the loss of earned remission could not be equated with imprisonment (John Howard Society, para 16).
On appeal, the JHS argued that Shubley’s precedential value has been lessened by recent jurisprudence that has adopted a more functional understanding of punishment (John Howard Society, para 6). The Saskatchewan Court of Appeal disagreed, and concluded that a loss of earned remission is “not the same” as the imposition of an additional period of incarceration (John Howard Society, para 18). Moreover, the presumption of innocence requires proof of guilt beyond a reasonable doubt only for criminal offences that attract “true penal consequences” (John Howard Society, para 19), and not at every instance where there is a deprivation of liberty.
On further appeal, the SCC was tasked with determining whether s. 68 of the Regulations infringes ss. 7 and 11(d) of the Charter (John Howard Society, para 20).
Decision:
The Majority
Wagner C.J., writing for the majority, allowed the appeal, finding that s. 68 of the Saskatchewan Regulations infringes s. 11(d) of the Charter and should be declared to be of no force and effect. In so doing, the Court announced that the Shubley holding on “true penal consequences” should no longer be considered binding (John Howard Society, para 48). The majority agreed with the JHS that recent jurisprudence has dictated that the Charter must be read generously and in a manner that gives effect to the purpose of the right in question. Under such a reading, an inmate facing the risk of either disciplinary segregation or a loss of earned remission does face a “true penal consequence” (John Howard Society, para 7). Permitting an inmate to serve part of their sentence outside the prison (John Howard Society, 180), as earned remission does, functions as a de facto reduction in an inmate’s sentence of imprisonment (John Howard Society, para 68). Thus, s. 11 is engaged, and s. 68 of the Regulations infringes the Charter as it permits the imposition of imprisonment even where a reasonable doubt as to the accused’s guilt may exist (John Howard Society, para 8).
Importantly, the majority’s decision highlighted the limits of a formalistic understanding of imprisonment (John Howard Society, para 39) and advanced a more functional approach, which seeks to collapse the distinction between a “sentence of imprisonment” and its “conditions” (John Howard Society, para 40). Canadian courts, the majority found, recognize that an inmate’s conditions of imprisonment affect the underlying interests that the Charter seeks to protect (John Howard Society, paras 41, 47); in the decades after Shubley, the jurisprudence had come to recognize that deprivations of liberty can occur when the conditions within a prison environment change (John Howard Society, para 43). As such, “imprisonment,” through a functional reading, includes disciplinary segregation and the loss of earned remission (John Howard Society, para 48).
The majority also concluded that even if s. 11 did not apply, where liberty deprivation is at stake and punishment is a possibility, s. 7’s “residual protection” operates to require proof beyond a reasonable doubt (John Howard Society, paras 2, 80). Thus, the SCC held, ss. 11(d) and 7 were infringed by s. 68 of the Regulations.
The SCC then found that s. 1 of the Charter cannot save these breaches. At the minimal impairment stage of test from R v Oakes, 1986 1 SCR 103 [Oakes], which determines whether the infringement of the Charter can be saved by the reasonable limits set out in s. 1, the Court held that setting a standard of proof beyond a reasonable doubt is an “obvious Charter-compliant alternative” (John Howard Society, para 96). Therefore, s. 68 of the Regulations cannot be saved by s. 1 of the Charter.
The Dissent
Justice Côté, writing a three-person dissent, found that s. 11(d) of the Charter does not apply to Saskatchewan’s inmate disciplinary proceedings, because a charge of “inmate misconduct” does not come within the meaning of being “charged with an offence” under s. 11 of the Charter (John Howard Society, para 106). She found that since these kinds of proceedings are administrative and not criminal, (John Howard Society, para 106), the first prong of the Wigglesworth test is not satisfied.
Under the second prong of the Wigglesworth test, the dissent found that the sanctions under s. 68 seek to “maintain internal discipline within a limited sphere of activity” (John Howard Society, para 106), and cannot be categorized as a penalty. A “truly” penal sanction, according to the dissent, is one that seeks to redress a “wrong done to society” (John Howard Society, para 154 citing Wigglesworth, para 561). This is to be juxtaposed with a loss of remission, which functions to “maintain order” (John Howard Society, para 237) within the confines of a prison. In the dissent’s view, earned remission is a privilege whose revocation serves “to encourage compliance” (John Howard Society, para 237). Therefore, such revocation is not a punishment (John Howard Society,para 237).
Analysis
The Rights of Prisoners: Against Insulating Correctional Penalties from Charter Scrutiny
The majority importantly underlines that the Wigglesworth “true penal consequence” prong must be read functionally so that state institutions cannot circumvent the application of the Charter (John Howard Society, para 55). Disciplinary segregation can be thought of as constructing a “prison within a prison” (John Howard Society, para 43), and loss of earned remission has the effect of extending an inmate’s period of incarceration (John Howard Society, para 58). To underscore the true effects of disciplinary segregation, the majority discusses the “Prison of Isolation”, the name given to the block of segregated cells at the Kingston Penitentiary, whose history and name demonstrate that it was conceived of as a distinct form of imprisonment (John Howard Society, para 63).
By requiring that a measure be “truly penal” to attract Charter protection, the dissent sets up a rigid dichotomy through which they distinguish penal and disciplinary regimes. Drawing on Wigglesworth, they tie s. 11 protection to matters that promote “public order [...] within a public sphere of activity” (John Howard Society, para 149), thereby casting correctional institutions as outside that sphere. Correctional institutions, according to this view, do “internal” work, and what occurs within their four walls is done at the behest or discretion of administrators. This framing is reinforced by the dissent’s characterization of the s. 68 sanctions as “disciplinary,” which constructs an image of those punishments as thoroughly “private” and insulated from external review (John Howard Society, para 223). In doing so, the dissent does not adequately answer the concern that excluding correctional institutions from the “truly penal” category effectively shields correctional practices from Charter scrutiny.
Moreover, the dissent advances a problematic view of criminal law – namely, the finding that disciplinary offences function merely to maintain order, security, and safety “within” correctional institutions (John Howard Society, para 208). It seems that the dissent justifies the need for a less onerous standard of proof in the name of expediency: the lower standard of proof fulfills the need to give “administrative agility” to those who work within correctional institutions (John Howard Society, para 211). In response to this rigid binary construction of discipline and punishment, prisoners’ rights movements have continually emphasized that these seemingly “private” matters did, indeed, attract real, criminal sanctions and therefore, required constitutional protection. Prisoners rights movements are not alone in advancing these concerns. Canadian jurisprudence has also come to reflect a concern about the rights of incarcerated people with respect to the Charter. In Mission Institution v Khela, 2014 SCC 24 [Mission Institution], the SCC explicitly held that the rule of law must run “within penitentiary walls” (Mission Institution, para 29) to protect the rights of incarcerated people. Ultimately, the dissent’s approach fails to consider this social and jurisprudential development, and runs counter to the understanding that the conditions of one’s incarceration substantively affect one’s liberty.
Conclusion
In Allan Manson’s “Solitary Confinement, Remission and Prison Discipline” the author writes that the Shubley holding, in failing to “inquire more carefully into the factors of imprisonment does not do justice to the expanded function of the judiciary in the post-Charter era.1 John Howard Society is a significant affirmation of the rights of incarcerated people that will satisfy critics of the Shubley decision. Moreover, I surmise that this decision will empower future litigation involving incarcerated people: in recent news, for instance, there exists a class action involving prisoner lockdowns that has been put forward in Ontario, alleging breaches of ss. 7 and 12 of the Charter.2 The decision in John Howard Society will loom large in such cases.
- Allan Manson, “Solitary Confinement, Remission and Prison Discipline” (1990) 75 C.R. (3d) 356 at 357. ↩︎
- Koskie Minsky LLP, “Ontario Prisoner Lockdowns Class Action” online: <https://kmlaw.ca/cases/ontario-prisoner-class-action/> ↩︎