Supreme Court reserves decision on constitutional challenge to Sask. jail regulations

The Supreme Court has reserved its decision after a two-day hearing into a case launched by the John Howard Society of Saskatchewan, which argues the provincial government is required to use "beyond a reasonable doubt" as the standard to convict an inmate of breaching rules in correctional facilities.

The John Howard Society of Saskatchewanbrought a case against the province, arguing the province's disciplinary regime for inmates is unconstitutional.

Currently, Section 68 of Saskatchewan's Correctional Services Regulationsallows panels of correctional staff to convict accused inmates on a "balance of probabilities" standard, which means that an inmate may be found guilty if it is more likely than not that they committed the offence.

The federalCorrections and Conditional Release Regulations say that inmates can be punished for breaking the rules in all correctional facilities. If an inmate is accused of breaking a rule, a hearing is held. During these hearings, correctional staff decide whether the inmate is guilty of committing an offence.

When the inmates are found guilty, the John Howard Societysaid, they can face harsh sanctions, including segregation and delayed release from custody.

Pierre Hawkins, the public legal counsel with the non-profit, said inmates should be sentenced to such "severe deprivations of liberties" only if the institution can prove with a degree of certainty that they've actually broken the rules.

He said the organization's public legal counsel has been a part of disciplinary hearings in the province for the last four to five years.

"What we see is a perception by inmates that the system of inmate discipline is unfair, and a number of people are found guilty and punished who didn't commit the offence," he said.

The structure and standard of proof varies in correctional institutions across Canada.

In institutions operated by Correctional Services Canada, the standard of proof required is "beyond a reasonable doubt," in line with the same threshold used in Canadian criminal trials.

All the provinces use a "balance of probabilities" approach, the John Howard Society said.

Hawkins said he's confident of the Supreme Court making a thorough and considered decision in the case one that could possibly set a precedent for other provinces.

"I think no matter what the court decides, every province is going to have to take a look at it and make sure their legislation complies with that decision," he said.

The case headed to the Supreme Court of Canada after the initial application by the the John Howard Society was dismissed in Saskatchewan Court of Queen's Bench in 2021, and then its appeal was denied by the Saskatchewan Court of Appeal in 2022.

Hawkins said the case is an important one because of overrepresentation of Indigenous people in Saskatchewan jails.

According to Statistics Canada, its over-representation index for Indigenous persons in Saskatchewan was 17.7 in 2021 the highest in the country.This means the Indigenous incarceration rate was about 18 times higher than the non-Indigenous rate.

The Canadian Civil Liberties Association is one of the 15 intervenors in the case. Its director of equality, Harini Sivalingam, said the lower standard of proof could resurface pre-existing trauma associated with the mistreatment of marginalized groups by authorities.

"Systemic racism impacts all aspects of the criminal justice system and that includes the prison disciplinary system," she said.

"Being subject to harsh treatments through these processes has a detrimental impact that can further compound some of the pre-existing mental health conditions that some of these individuals may experience."

The Saskatchewan government is arguing that the deprivation of an inmate's liberty interest does not violate the principles of fundamental justice.It says that the low standard of proof is required to maintain order and safety in correctional facilities and to provide what it believes is a fair and efficient disciplinary process given the high volume of offences.