John Howard Society of Saskatchewan Appellant (Applicant) v. The Government of Saskatchewan (The, 2022 SKCA 144

Court of Appeal for Saskatchewan Docket: CACV3932 Citation: John Howard Society of Saskatchewan v Saskatchewan (Attorney General) , 2022 SKCA 144 Date: 2022-12-15 Between: John Howard Society of Saskatchewan Appellant (Applicant) And The Government of Saskatchewan (The Attorney General for Saskatchewan) Respondent (Respondent) Before: Schwann, Tholl and McCreary JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr.

Justice Tholl In concurrence: The Honourable Madam Justice Schwann The Honourable Madam Justice McCreary On appeal from: 2021 SKQB 287 , Regina Appeal heard: October 5, 2022 Counsel: Pierre Hawkins for the Appellant Katherine Roy and Laura Mazenc for the Respondent Tholl J.A. I. INTRODUCTION [ 1 ] When an inmate in a provincial correctional facility is charged with a disciplinary offence, the governing legislation requires the institutional authorities to determine, on a balance of probabilities, that the offence occurred in order to establish guilt.

The John Howard Society of Saskatchewan asserts that employing this standard of proof violates s. 7 of the Charter . It submits that proof beyond a reasonable doubt is necessary to withstand constitutional scrutiny. [ 2 ] For the reasons that follow, I find that proof of a disciplinary offence on a balance of probabilities does not violate s. 7 of the Charter . II. BACKGROUND [ 3 ] The John Howard Society is a non-profit corporation that, among other things, assists persons in their interactions with the criminal justice system.

Part of its mandate is to advocate for humane conditions for persons who are incarcerated and to provide assistance on prisoners’ rights matters. The John Howard Society was granted public interest standing to pursue the within application in the Court of Queen’s Bench. That standing is not challenged in this appeal. [ 4 ] The government of Saskatchewan operates four provincial correctional centres – Regina Correctional Centre, Saskatoon Correctional Centre, Prince Albert Provincial Correctional Centre, and Pine Grove Correctional Centre – along with the White Birch Remand Centre for Women in Regina.

The inmate disciplinary system for offences that occur within those institutions is codified in detail in

Part VIII of The Correctional Services Act, 2012 , SS 2012, c C-39.2 [ CS Act ], and

Part XIII of The Correctional Services Regulations, 2013 , RRS c C-39.2 Reg 1 [ Regulations ]. Disciplinary offences are divided into minor and major offences: s. 72 and s. 73(2)(

a) of the CS Act and s. 50 , s. 54 , and s. 55 of the Regulations . The hearing process differs on the basis of this classification, but not in a manner relevant to this appeal. The burden of proof is the same for both categories of offences. [ 5 ] In 2019, approximately 6,201 disciplinary charges were laid in the four correctional centres. The evidence does not break these offences down into the categories of minor and major.

Those alleged offences included the following: fights, assaults, staff assaults, possession of weapons, possession of other contraband, impairment, disruptive behaviour, disobeying lawful orders, obstructing or interfering with security measures, threats, and various other offences. Discipline panels are convened within each institution to adjudicate the reported charges.

There were 3,367 such hearings held in Saskatchewan in 2019. [ 6 ] The discipline panel utilizes an inquisitorial system to examine the matter and then determines, on a balance of probabilities, if the inmate was responsible for committing the disciplinary offence. [ 7 ] The standard of proof for a disciplinary offence is set out in the Regulations : Burden of proof 68 A discipline panel shall not find an inmate responsible for a disciplinary offence unless it is satisfied on a balance of probabilities that the inmate committed that offence. [ 8 ] In Saskatchewan, the Inmate Disciplinary Hearing Manual (Adult Custody Services, 8 June 2021) describes this burden of

proof as follows (at 25): In theory, the balance of probabilities means an event either did or did not happen. In practice, there is some flexibility: the decision- maker(

s) must determine, based on the evidence before them, whether it is more likely than not that the event happened as described. If it is unclear, or the probability of the event occurring/not occurring are equal, then the balance of probabilities has not been met. Further, when assessing probability, it is important to note that the burden of proof – the obligation to prove one’s case – is on the correctional facility to demonstrate the inmate committed the offence, rather than on the inmate to prove that they did not commit the offence. If the panel is unsure, the charge must be dismissed.

Essentially, the question the discipline panel must ask is whether the evidence, facts and arguments demonstrate that it is more likely than not that the inmate committed the offence. [ 9 ] Section 77(1) of the CS Act sets out the sanctions that can be imposed on an inmate found responsible for committing a major disciplinary offence: Disciplinary sanctions 77

(1) If the discipline panel finds that the inmate has committed a major disciplinary offence, the discipline panel may, in accordance with the regulations, impose one or more of the following sanctions, subject to any terms and conditions that the discipline panel considers appropriate: (

a) reprimand; (

b) loss of privileges as specified in the decision for a period not exceeding 30 days; (

c) confinement to a cell, room or unit during leisure time for a period not exceeding 10 days; (

d) segregation to a cell, unit or security area for a period not exceeding 10 days; (

e) restitution in an amount not exceeding $400 with respect to property damage; (

f) loss of pay earned pursuant to this Act, not exceeding $25; (

g) assignment of extra duties; and (

h) forfeiture of a period, not exceeding 15 days, of remission earned. [ 10 ] Minor disciplinary offences have many of the same penalties – segregation and the loss of earned remission are notably not available – with lower maximums for those that have monetary or day limits: s. 77(2) of the CS Act . [ 11 ] In 2019, the percentages of sanctions imposed, where an inmate was found to have committed a disciplinary offence, included the following: disciplinary segregation (39%), loss of privileges (30%), confinement to the inmate’s cell, room, or unit during leisure time (13%), assignment of extra duties (8%), restitution (3.5%), reprimand (2%), and loss of earned remission (0.3%). [ 12 ] The John Howard Society argues that s. 68 of the Regulations violates s. 7 of the Charter because it allows for disciplinary infractions allegedly committed by an inmate in a correctional facility to be proven merely on a balance of probabilities, even though the punishment imposed for major disciplinary infractions can be segregation or additional days of incarceration (resulting from a loss of earned remission).

Section 7 of the Charter provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. The John Howard Society submits that because the punishment for committing a disciplinary infraction may result in a loss of liberty, s. 7 must require an infraction to be proven beyond a reasonable doubt.

As such, it argues that the lower standard enshrined in s. 68 of the Regulations is constitutionally invalid. [ 13 ] As a result of its position on this issue, the John Howard Society filed an originating application in the Court of Queen’s Bench on March 2, 2021. It sought an order, pursuant to s. 52(1) of the Charter , declaring that s. 68 of the Regulations is contrary to s. 7 of the Charter and is, therefore, of no force or effect. The application was dismissed: John Howard Society of Saskatchewan v Saskatchewan (Attorney Genera l ) , 2021 SKQB 287 [ Chambers Decision ]. III.

DECISION IN THE COURT OF QUEEN’S BENCH [ 14 ] The Chambers judge began his decision by setting out the legislative framework from the CS Act , the Regulations , and the Charter and by describing the disciplinary process in some detail. He then defined the issue that he had to decide as, “does ‘fundamental justice’ require proof of infraction of a rule on a balance of probabilities or proof beyond a reasonable doubt?” (at para 11). [ 15 ] After summarizing the evidence, which was uncontroverted, the Chambers judge noted that the parties were in agreement on the two following points: (

a) the John Howard Society had the necessary public interest standing to bring the application; and (

b) the penalties that can be imposed following a finding of responsibility may deprive inmates of their liberty as that term is used in s. 7 of the Charter . [ 16 ] With these concessions in place, the Chambers judge turned to the issue of whether a principle of fundamental justice requires proof beyond a reasonable doubt for the inmate discipline process under the CS Act and the Regulations . He set out the position of each party in detail and then reviewed the s. 7 jurisprudence found in the following Supreme Court decisions: Re B.C. Motor Vehicles Act , 1985

81 (SCC), [1985] 2 SCR 486; R v Lyons, (SCC), [1987] 2 SCR 309; Rodriguez v British Columbia (AttorneyGeneral), (SCC), [1993] 3 SCR 519; Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2SCR 307; R v Malmo-Levine; R v Caine, 2003 SCC 74, [2003] 3 SCR 571 [Malmo-Levine]; and R v D.B., 2008 SCC 25, [2008] 2 SCR 3. [17] The Chambers judge framed his analysis as a consideration of whether the John Howard Society had established that aprinciple of fundamental justice necessitates proof beyond a reasonable doubt for an inmate to be found responsible for a disciplinaryoffence.

The Chambers judge determined that this result could potentially arise out of the application of an existing principle offundamental justice or the recognition of a new one. [18] The Chambers judge next examined the guidance that could be taken from jurisprudence that had interpreted s. 11 of theCharter, which had found that s. 11 does not apply to prison discipline procedures: R v Wigglesworth, (SCC), [1987] 2SCR 541, and R v Shubley, (SCC), [1990] 1 SCR 3.

His conclusion in this regard was as follows (Chambers Decision): [71] Justice McLachlin’s statement in Shubley makes clear that the sanction of forfeiture or suspension of remission, albeit a deprivationof liberty, is not imprisonment. Loss of remission does not deprive inmates of a “right”. Instead, cancellation of earned remission is thewithholding of a reward, a tool for prison administration to ensure the orderly running of a prison.

She wrote at para. 41 providing adescription of prison discipline that persuasively augurs in favour of the position advanced in this application by the Attorney General: 41 The appellant suggests that the forfeiture or suspension of remission (which did not occur in this case) constitutes imprisonment. Thissubmission is at odds with the legal concept of earned remission. Remission does not shorten a sentence for imprisonment; that can bedone only by appeal. Rather, it permits an inmate who has “applied himself industriously” to the prison program, to serve part of hissentence outside the prison.

The privilege of remission (it is not a right) is conferred as a matter of prison administration to provideincentives to inmates to rehabilitate themselves and co-operate in the orderly running of the prison. The removal of that privilege forconduct that violates these standards is equally a matter of internal prison discipline. Forfeiture of remission does not constitute theimposition of a sentence of imprisonment by the superintendent, but merely represents the loss of a privilege dependent on good behaviour… [72] Shubley conclusively holds that s. 11 Charter rights do not apply to prison discipline.

Perhaps most helpfully taken from this decisionis the Supreme Court’s characterization of the nature and purpose of prison discipline proceedings. Necessarily, the court’scharacterization of discipline proceedings also animates and informs any possible applicability of s. 7 rights to such proceedings.Switching Charter provisions from s. 11 to s. 7 does not lessen or modify the way the Supreme Court has described the essence of prisondiscipline hearing.

JHS [John Howard Society] must tailor its assertion that breach of prison rules based on proof beyond a reasonabledoubt is a necessary and fundamental principle of natural justice that accords with the Supreme Court’s description of the nature andpurpose of prison discipline. This task is difficult to discharge in face of the statements in Shubley. [73] I do not accept that JHS has achieved this end. The dicta in Wigglesworth and the frank statement in Shubley leave no doubt thatprison discipline proceedings are not criminal proceedings and do not attract s. 11 Charter protections.

JHS, recognizing that inmates areprecluded from s. 11 protection, looks to the broader, more inclusive, but less specific protection offered by s. 7.

However, no matter whatCharter provision JHS might engage to alter the burden of proof, Justice McLachlin’s description of the nature and purpose of disciplinehearings within a prison do not establish what JHS suggests – that as a principle of fundamental justice an inmate’s non-compliance withprison rules must be established only by proof beyond a reasonable doubt. [19] Turning to the issue of a discipline panel’s ability to find guilt, the Chambers judge addressed the John Howard Society’sassertions that, arising out of R v Pearson, (SCC), [1992] 3 SCR 665, and R v Demers, 2004 SCC 46, [2004] 2 SCR 489,a finding of guilt for an offence, including a prison disciplinary offence, requires proof beyond a reasonable doubt under s. 7 of theCharter.

He rejected those arguments, deciding that guilt, in a strict and legal sense, is a verdict found after a criminal trial. The Chambersjudge concluded this issue as follows: [78] Conduct that attracts consequences, even conduct that would establish guilt pursuant to a criminal charge, does not necessarily have tobe proven beyond a reasonable doubt, in non-criminal proceedings.

That same conduct, found on a balance of probabilities, could haveserious consequences, for example, in professional discipline where the right to practice a profession may be lost, in civil cases wheredamages might be awarded, and reputations affected and in bail hearings where liberty might be deprived.

Merely calling a finding in aproceeding a finding of “guilt” cannot be determinative of the standard of proof. [79] Discipline in prisons, as Justice McLachlin explained in Shubley, is not an inmate’s call to answer to the public for “a crime violatingthe public interest”, which would ordinarily attract the standard proof beyond a reasonable doubt. Rather, in prison discipline of an inmateis called “to account to the prison officials for breach of his obligation as an inmate of the prison to conduct himself in accordance withprison rules” (para. 37).

Calling a finding of breach of prison rules a finding of “guilt” is more a matter of semantics than substance. Merenomenclature cannot establish a Charter infringement. [20] Moving on, the Chambers judge considered whether the nature of the penalties – specifically, forfeiture of earned remissionand segregation – requires that the underlying offence be proven beyond a reasonable doubt. He reiterated that loss of remission, asdiscussed in Shubley, represents the loss of a privilege not an imposition of more carceral time.

Turning to segregation, he found that itwas very different from solitary confinement. [21] The Chambers judge ended his reasons with some general comments on the nature of prisons and canvassed the standard ofproof for prison disciplinary offences from other jurisdictions in Canada.

He noted that only the legislation governing federalpenitentiaries required proof beyond a reasonable doubt for discipline offences. [22] In the end, the Chambers judge determined that s. 68 of the Regulations does not offend s. 7 of the Charter and, as such, foundit unnecessary to assess whether that provision could be justified under s. 1 of the Charter. IV. ISSUES

[ 23 ] The issues in this matter are as follows: (

a) Does s. 7 of the Charter require proof beyond a reasonable doubt for inmate disciplinary proceedings conducted under

Part VIII of the CS Act and

Part XIII of the Regulations ? (

b) If s. 68 of the Regulations violates s. 7 of the Charter , is it saved by s. 1 of the Charter ? V. ANALYSIS A. Standard of review and the positions of the parties [ 24 ] The issue of whether s. 68 of the Regulations complies with s. 7 of the Charter is a question of law, reviewable on the standard of correctness: Strom v Saskatchewan Registered Nurses’ Association , 2020 SKCA 112 at para 133 , 453 DLR (4th) 472.

The underlying findings of fact are reviewable on a standard of palpable and overriding error: Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235, and Yorkton (City) v Mi-Sask Industries Ltd ., 2021 SKCA 43 at para 70 , [2021] 6 WWR 18. I note that the evidence in this matter was uncontroverted, and the facts are, for the most part, not in dispute. [ 25 ] The John Howard Society approaches this appeal from the standpoint that an existing principle of fundamental justice – the presumption of innocence – encompasses the situation at hand.

It relies heavily on Pearson and Demers as support for its assertion that, where liberty is at stake, the presumption of innocence requires proof beyond a reasonable doubt. It argues that this principle should be extended and applied to inmate discipline proceedings. [ 26 ] The government argues that the existing principle of fundamental justice applies only in the criminal context, not in inmate discipline proceedings.

It asserts that the decision of the Supreme Court in Shubley recognized that such proceedings are not criminal proceedings, and, therefore, Pearson and Demers , which discussed the presumption of innocence in the criminal process, have no application to the issue at hand. [ 27 ] The government further contends this Court would have to recognize a new or fresh principle of fundamental justice – that inmate discipline offences must be proven, in administrative proceedings, beyond a reasonable doubt – in order to find a violation of s. 7 of the Charter .

However, and significantly, the John Howard Society does not ask for the recognition of a new principle of fundamental justice – it wants this Court to extend the existing principle – and submits that this specific issue was not before the Chambers judge and should not have been addressed by him. B. Inmate discipline and available sanctions [ 28 ] The test for determining whether s. 7 of the Charter has been violated is set out in Carter v Canada (Attorney General) , 2015 SCC 5 at para 55 , [2015] 1 SCR 331. It is a two-step process: (

a) does the impugned law interfere with or deprive the applicant of their life, liberty, or security of the person, and (

b) if the first part of the test is met, does this interference or deprivation accord with the principles of fundamental justice? See also R v Ndhlovu , 2022 SCC 38 at para 49 , 474 DLR (4th) 389. The onus is on the applicant to establish both parts of the test. [ 29 ] The government properly concedes that the inmate discipline regime, and particularly s. 68 of the Regulation s , engages the liberty interests of inmates. It is also not controversial that the presumption of innocence is a principle of fundamental justice in the criminal context: Pearson at 682–683.

The issue is whether this principle applies in the inmate discipline context and whether it requires proof beyond a reasonable doubt. For the reasons that follow, it is my view that this specific principle of fundamental justice – the presumption of innocence requiring proof beyond a reasonable doubt – does not apply, or cannot be extended to encompass, the inmate discipline regime. [ 30 ] The overall purpose of the inmate discipline regime, established in

Part VIII of the CS Act and

Part XIII of the Regulations (of which the impugned provision is an integral part), is to maintain order, security, and safety in the institutions: Chambers Decision at paras 1 and 69–71, and s. 3(

d) and ss. 23–25 of the CS Act . Given the high volume of offences that occur in correctional facilities, and the need to deal with them quickly, an efficient, yet fair, system is required. As noted in Kupsar v Regina Provincial Correctional Centre , 2020 SKCA 142 , 474 CRR (2d) 285, there must be a balance between “procedural fairness and the reality that provision for fast and efficient disciplinary proceedings is required to maintain order in a correctional institution” (at para 45): see also Perron v Canada (Attorney General) , 2020 FC 741 at paras 56–57 .

However, practicality, convenience, and efficiency cannot come at the expense of the principles of fundamental justice: Ndhlovu at paras 78 and 103 . Factors related to expediency fall to be addressed under s. 1 of the Charter. [ 31 ] It is informative to frame the discussion by first examining what is at stake for an inmate who is subject to the discipline process.

A description of the two types of sanctions, which the John Howard Society relies on in relation to liberty interests – segregation and loss of earned remission – is required. [ 32 ] The John Howard Society submits that segregation is a harsh sanction. It cites British Columbia Civil Liberties Association v Canada (Attorney General) , 2019 BCCA 228 , 377 CCC (3d) 420, for the proposition that legislation that permits prolonged, indefinite segregation “constitute[s] cruel and unusual treatment …” (at para 95).

It also points to Corporation of the Canadian Civil Liberties Association v Canada (Attorney General) , 2019 ONCA 243 at para 68 , 433 DLR (4th) 157, which found that any period of solitary confinement exceeding 15 days represents cruel and unusual punishment. However, the segregation that is utilized as a sanction under the CS Act is neither indefinite nor was it found by the Chambers judge to be the same thing as solitary confinement. Section 77(1) (

c) and s. 77(1) (

d) of the CS Act limit the period of confinement or segregation to 10 days. [ 33 ] Regarding the factual character of this consequence, Lindsay Tokarski, Director, Standards and Compliance for the Saskatchewan Ministry of Corrections, Policing and Public Safety, described segregation in her affidavit as follows:

13. During disciplinary segregation, the conditions of confinement are as follows: a. Unless safety concerns exist, inmates remain on their unit and are not placed in a more secure unit. b. Inmates are permitted a minimum of one hour of leisure time outside their cells each day, during which they can make phone calls (unless they have received a sanction of loss of telephone privileges), shower, engage with other inmates, watch television, exercise, and have time outside. c.

Inmates are also permitted access to their visits, which may only be suspended if a visiting rule was violated; canteen, unless loss of canteen was applied as a sanction; reading materials; in-cell programming and television if there is one in the cell. d. Inmates often have a cellmate to engage with. Some units also have televisions in the cells. e. Almost all cells have natural light by way of windows to the outside. f. Inmates still have access to health care and can request to see a nurse at any time. g. Inmates still have access to Elders, Chaplains and program staff and can put in requests to see them.

There was no other evidence describing the conditions experienced by an inmate when disciplinary segregation is imposed. [ 34 ] The nature of segregation, as compared to solitary confinement, was found by the Chambers judge to be as follows: [85] JHS also states that segregation is so harsh that only proof beyond a reasonable doubt can justify such disciplinary consequence. The only evidence before the court respecting segregation is Ms. Tokarski’s explanation of what constitutes segregation within Saskatchewan’s correctional centres.

As stated previously at paragraph 23, confinement during disciplinary segregation in Saskatchewan’s correctional centres allows inmates to remain on their unit. They are not placed in more secure units and are permitted a minimum of one hour of leisure time outside their cells each day when they can shower, engage with other inmates, watch television, exercise and spend time outside.

Often, they have a cellmate and always have access to health care, Elders or a Chaplain. [86] I find nothing in the evidence to suggest that what Corrections calls “segregation” is as severe as one might associate with the term “solitary confinement” or “dissociation”. In some situations, segregating a prisoner from other prisoners may be for the safety of all, including the offending inmate. I must decide this application on the facts before the court.

Those facts do not raise “segregation” in Saskatchewan’s correctional centres to the level of concern that JHS suggests. [ 35 ] Turning to the second sanction – loss of up to 15 days of earned remission under s. 77(1) (

h) of the CS Act – I note that it has rarely been imposed (0.3% of cases in 2019). However, it has been used and remains as an available sanction. As reiterated in Ndhlovu , even “a single case” is sufficient to attract scrutiny under s. 7 of the Charter (at para 78). [ 36 ] Remission of sentence is governed by s. 99 of the CS Act and s. 6 of the Prisons and Reformatories Act , RSC 1985, c P-20 . Both Acts explicitly recognize that, even though remission has been earned, it can be forfeited in certain circumstances.

In general, an inmate serving a sentence in a provincial correctional centre is credited with 15 days of remission against their sentence for every month that they serve. However, this remission is not automatic. As set out in those sections, it is obtained by obeying the rules and by actively participating in programs designed to promote rehabilitation and reintegration into society.

If an inmate has obtained some remission, and it has not been forfeited, they will then be released from prison before the expiration of their sentence. [ 37 ] To be clear, the loss of remission does not increase the duration of an inmate’s sentence, but it does take away (up to 15 days) credit for earned remission that they have previously obtained through maintaining good conduct and by participating in programming. In the result, where this sanction is applied, an inmate will be released later than they would have been had their credit remained intact.

The John Howard Society refers to this reality as “the practical severity of the loss to the individual”. More colloquially, it submits that, from an inmate’s perspective, they are now spending more time in jail. However, in my view, this delayed release from prison is not the same as the imposition of an additional period of incarceration. That is a false equivalency. It is not more time in jail. The purpose of permitting inmates to accumulate remission credit is to promote order, security, and safety in the institution, while facilitating rehabilitation.

An inmate earns this benefit by engaging in the desired behaviour. Taking away the earned benefit for an inmate, who has engaged in behaviour that is the opposite of that for which they have received the benefit in the first place, is not akin to the imposition of additional incarceration, which would be a true penal consequence. [ 38 ] This characterization accords with the Supreme Court’s analysis of earned and lost remission.

In Shubley , remission was described as a privilege and an incentive, not a right, by McLachlin J., as she then was (at 22): The appellant suggests that the forfeiture or suspension of remission (which did not occur in this case) constitutes imprisonment. This submission is at odds with the legal concept of earned remission. Remission does not shorten a sentence for imprisonment; that can be done only by appeal. Rather, it permits an inmate who has “applied himself industriously” to the prison program, to serve part of his sentence outside the prison.

The privilege of remission (it is not a right) is conferred as a matter of prison administration to provide incentives to inmates to rehabilitate themselves and co-operate in the orderly running of the prison. The removal of that privilege for conduct that violates these standards is equally a matter of internal prison discipline.

Forfeiture of remission does not constitute the imposition of a sentence of imprisonment by the superintendent, but merely represents the loss of a privilege dependent on good behaviour … . [ 39 ] The cancellation of earned remission, which occasionally arises out of being found responsible for breaching the rules of the institution, was aptly described by the Chambers judge as “a tool for prison administration to ensure the orderly running of a prison” (at para 71).

It is not an additional period of incarceration; it is the removal of a privilege as a consequence of engaging in conduct that is antithetical to that which the benefit is meant to reward. [ 40 ] While the availability of these two sanctions engages inmates’ liberty interests, they are not of the same nature as those

engaged when true penal consequences are involved. These penalties can be significant, but they are not in the same category as theconsequences that can arise when a person is charged with a criminal offence.

As discussed more fully below, this difference is notdeterminative but does add significant support to a finding that the same standard of proof is not required for disciplinary offences as ismandated in situations where criminal penalties are available. [41] The John Howard Society also points out that an inmate’s disciplinary record follows them throughout their life and can haveconsequences on future sentencing: s. 719(3) of the Criminal Code and Ontario (Community Safety and Correctional Services) v Ontario(Information and Privacy Commissioner), 2011 ONCA 32 at para 59, 328 DLR (4th) 321.

It argues that it is incongruent that aggravatingfactors asserted by the Crown at the time of sentencing must be proven beyond a reasonable doubt, but one of those factors may be afinding of guilt for an institutional offence, which was only proven on a balance of probabilities. This is true. The Crown at a sentencinghearing need only prove that the convictions for institutional offences occurred on the higher standard, not that the underlying facts of theoffence occurred.

It further contends that a disciplinary record will follow an inmate into subsequent incarcerations and may affect unitplacement, interactions with staff, family contact, access to training and treatment programs, and parole decisions.

These consequencesassist the John Howard Society’s position, but, again, they are not determinative. [42] Moving on to the nature of the determination made by the discipline panel when it deliberates whether the offence occurred, Iobserve that the possibility of finding an inmate responsible for having committed a disciplinary offence does not automatically engagethe s. 7 principle that is at stake in this matter. I note that s. 68 of the Regulations uses the term “responsible for a disciplinary offence” asopposed to “guilt”, but I do not find that semantical difference of any import.

In the end, if the evidence establishes that the disciplinaryoffence was committed, the inmate is found guilty. However, as noted by the Chambers judge, “Conduct that attracts consequences …does not necessarily have to be proven beyond a reasonable doubt, in non-criminal proceedings” (at para 78). C.

Pearson, Demers, and Shubley [43] This leads me back to the main argument made by the John Howard Society, the application of the reasoning from Pearson,Demers, and Shubley, which it says support the position advanced on this appeal. [44] In Demers, the applicant had been found unfit to stand trial but was released by a convened review board three months after thatdetermination. Under the relevant Criminal Code provisions, an accused person in such a situation could never be absolutely discharged;they either had to wait until they were fit to stand trial or until the Crown failed to establish a case against them.

In response to thislegislative regime, Mr. Demers challenged the constitutional validity of s. 672.33, s. 672.54, and s. 672.81(1) of the Criminal Code. [45] In my view, Demers does not assist the John Howard Society. Its bottom-line finding is that, while the presumption ofinnocence applies at all stages of the criminal process, it was not engaged in that case; the review board’s decision to release Mr. Demerswas not a determination of guilt in a criminal sense. This concept was described by the majority in Demers: [34] As discussed by this Court in R. v.

Pearson, (SCC), [1992] 3 S.C.R. 665, at p. 685, the presumption of innocence as aprinciple of fundamental justice under s. 7 of the Charter “does not necessarily require anything in the nature of proof beyond reasonabledoubt, because the particular step in the process does not involve a determination of guilt”. The Review Board proceedings underss. 672.54 and 672.81(1) do not involve a determination of guilt or innocence. Nor do they presume that the unfit accused is dangerous.They simply require the Review Board to perform an assessment of the accused and impose the least onerous condition on his or herliberty.

The unavailability of an absolute discharge relates to the fact that the accused has not been tried, rather than the presumption thatthe accused is guilty or dangerous. [46] Likewise, the inmate discipline regime is not a proceeding that involves a determination of guilt or innocence in a criminalsense: Wigglesworth at 552–553 and Shubley at 15–25. As noted in paragraphs 64–66 of the Chambers Decision, the John HowardSociety implicitly accepted this non-criminal characterization of the discipline regime and has not resiled from that position on appeal.

Ofcourse, the finding that a matter is not criminal in nature is not determinative.

Section 7 rights clearly apply outside of the criminal sphere:Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 SCR 350. But statements made by the Supreme Court thataddress such issues in the criminal realm cannot simply be imported and applied directly to other contexts. [47] Pearson involved a Charter challenge to the judicial interim release provisions set out in s. 515(6)(

d) of the Criminal Code.Under the relevant Criminal Code provision, Mr. Pearson would have been denied bail, unless he could show cause why his detention wasnot justified. He argued that this requirement violated his ss. 7, 9, 11(

d) and 11(

e) Charter rights. Speaking for the majority, Lamer C.J.C.found that it was unnecessary to apply s. 7 of the Charter in the circumstances of that matter; nonetheless, he observed that not everydeprivation of liberty engages s. 7 (at 684): This, of course, does not mean that there can be no deprivation of life, liberty or security of the person until guilt is established beyondreasonable doubt by the prosecution at trial. As I noted in Re B.C.

Motor Vehicle Act, (SCC), [1985] 2 SCR 486], atp. 512, “[t]he term ‘principles of fundamental justice’ is not a right, but a qualifier of the right not to be deprived of life, liberty andsecurity of the person; its function is to set the parameters of that right”. The illustrations of deprivations of life, liberty and security of theperson otherwise than in accordance with the principles of fundamental justice set out in ss. 8–14 of the Charter are suggestive of thisconclusion.

Section 8 speaks in terms of unreasonable search and seizure, s. 9 of arbitrary detention and s. 11(

e) of the right not to bedenied reasonable bail “without just cause”. Each of these specific examples is consistent with the view that certain deprivations of libertyand security of the person may be in accordance with the principles of fundamental justice where there are reasonable grounds for doingso, rather than only after guilt has been established beyond a reasonable doubt. As the majority of this court (per La Forest J.) noted in R.v.

Lyons, (SCC), [1987] 2 S.C.R. 309, at p. 361: It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they areinvoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another. This is true with respect to the presumption of innocence as a substantive principle of fundamental justice within s. 7 of the Charter. Whilethe presumption is pervasive in the criminal process, its particular requirements will vary according to the context in which it comes to be

applied. (Emphasis in original) [48] Chief Justice Lamer went on to state that previous examples of how the presumption of innocence has been applied in s. 11(d)cases are informative of how this principle will apply in s. 7 cases. He then discussed various examples of situations where thepresumption of innocence may apply under both s. 7 and s. 11(

d) of the Charter and noted that the presumption of innocence under s. 7would be of broader application than under s. 11(d). The Supreme Court illustrated this observation by giving the example of civilcontempt (at 686–687): It may well be, of course, that a person facing civil contempt proceedings is “charged with an offence” within the meaning of s. 11 of theCharter. But even if not, I would be attracted to the argument that the presumption of innocence, requiring proof beyond reasonable doubt,would apply as a principle of fundamental justice under s. 7 of the Charter.

This would be consistent with the practice in both the civil law(see, e.g., Imperial Oil Ltd. v. Tanguay, [1971] Que. C.A. 109) and common law (see, e.g., Dean v. Dean, [1987] 1 F.L.R. 517 (Eng.C.A.)). [49] Despite this commentary, the majority ultimately decided the case under s. 11(

e) of the Charter, holding that the bail provisionin question in that matter “does not violate s. 7 unless it fails to meet the procedural requirements of s. 11(e)” (at 689). Because s. 11(e)was not infringed, this issue was not discussed any further. [50] Pearson informs the analysis on the scope of the presumption of innocence under s. 7 of the Charter. However, contrary to theJohn Howard Society’s arguments, it does not imply that the principle of the presumption of innocence in criminal matters can beextended to require proof beyond a reasonable doubt in a prison discipline setting.

Rather, all that can be taken from Pearson, and adaptedinto the present case, is the idea that the application of the presumption of innocence in a s. 7 Charter claim will depend on thecircumstances. This same conclusion applies to the reasoning in Demers. In this vein, I agree with the Chambers judge that, in the contextbeing discussed in Pearson and Demers, guilt equates to being found to have committed a criminal offence that attracts true penalconsequences.

That is not the situation here. [51] Unlike Pearson and Demers, Shubley was adjudicated against the backdrop of the prison discipline regime, albeit in achallenge under s. 11 of the Charter. In that case, an inmate who had assaulted another inmate was found by the superintendent of thedetention centre to have committed the offence and, as a sanction, was ordered to be placed in solitary confinement for five days with arestricted diet. The inmate was subsequently criminally charged with assault causing bodily harm. In the criminal proceedings, he sought astay of proceedings, relying on s. 11(

h) of the Charter. That

section is as follows: Proceedings in criminal and penal matters 11 Any person charged with an offence has the right … (

h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried orpunished for it again … . [52] Writing for the majority of the Court in Shubley, McLachlin J. found that s. 11(

h) of the Charter was not engaged becauseprison discipline proceedings did not call upon the inmate to “account to society for a crime violating the public interest …” (at 20); rather,they are called upon to “account to the prison officials for breach of his obligation as an inmate of the prison to conduct himself inaccordance with prison rules”. The focus was, therefore, placed on the nature and purpose of the sanctions: whereas, in a s. 7 analysis, thefocus is on the severity of the consequences to the individual. However, there is significant overlap between these two approaches.

I agreewith the Chambers judge that the distinction between prison discipline proceedings and criminal proceedings provides support for afinding that s. 7 of the Charter does not require proof on the criminal standard in these circumstances. [53] Of course, as the John Howard Society rightfully points out, Shubley did not involve an examination of s. 7 of the Charter, andMcLachlin J. observed that “procedural protection for inmates affected by disciplinary measures is more properly to be found in the moreflexible guarantees of s. 7 than in s. 11 of the Charter” (at 24).

However, the analysis that led to the finding of the non-application of s. 11to prison discipline in Shubley intersects with and informs the analysis of the s. 7 issue in the matter at hand. [54] Generally, where there is overlap between s. 7 and s. 11 of the Charter, those portions of the analyses can be consideredtogether. However, where aspects are unique to either s. 7 or s. 11, those parts should be conducted separately.

This was illustratedrecently by the commentary of the majority of the Supreme Court in R v J.J., 2022 SCC 28, 471 DLR (4th) 577: [114] Our colleagues Brown J. and Rowe J. object to our analytical framework on the basis that s. 11(

d) should be analyzed before s. 7,which is more “general”. Our Charter analysis considers the relevance of both ss. 7 and 11(d), which this Court has long recognized are“inextricably intertwined” (Mills (SCC), [1999] 3 SCR 668], at para. 69, quoting Seaboyer (SCC),[1991] 2 SCR 577], at p. 603). Following the approach adopted by this Court for decades, we assess these rights together where they areco-extensive and separately where a concern falls specifically under one of the rights … . [115] Further, our approach in these appeals should not be interpreted as a principle of broader application when accused persons raiseboth ss. 7 and 11(

d) in future Charter cases. The appropriate methodology for assessing multiple Charter breaches alleged by the accusedmay depend on the factual record, the nature of the Charter rights at play, and how they intersect. This Court has repeatedly affirmed thatthe methodology for assessing multiple alleged Charter breaches is highly context- and fact-specific: [references omitted]. [55] In J.J., the Supreme Court determined that, due to the nature of the claim in that case, the analyses for s. 7 and s. 11(

d) of theCharter were complimentary. Specifically, the majority stated that “principles of trial fairness and the accused’s right to make a fullanswer and defence are expressions of procedural principles of fundamental justice under s. 7, and are also embodied in s. 11(d)” (atpara 123). The majority went on to analyze whether principles of trial fairness were violated by the impugned provisions, thereby jointly

analyzing s. 7 and s. 11(

d) Charter factors. [56] This aspect of J.J. was cited and discussed by Kalmakoff J.A. in R v Wesaquate, 2022 SKCA 101, 418 CCC (3d) 225: [77] … The principle of full answer and defence also finds expression in the Charter where it is tied to, and intertwined with, the right to afair trial, as the Supreme Court of Canada recently observed in R v J.J., 2022 SCC 28 at para 123 [J.J.]: [123]

Section 11(

d) states that any person charged with an offence has the right “to be presumed innocent until proven guilty according tolaw in a fair and public hearing by an independent and impartial tribunal”.

The principles of trial fairness and the accused’s right to make afull answer and defence are expressions of procedural principles of fundamental justice under s. 7, and are also embodied in s. 11(d) (R. v.N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, at para. 15; Mills, at para. 69). [78] In addition to embodying the burden of proof beyond a reasonable doubt and the requirement that the state bear that burden, s. 11(d)demands that criminal prosecutions be carried out in accordance with due process.

However, as the majority of the Supreme Court set outin J.J., the analysis of claims that allege violations of s. 7 and s. 11(

d) rights is not entirely accused-focused. While the rights contained inthose sections are those of the accused person, the determination of whether there has been a violation must also bear in mind the otherinterests at stake in the criminal justice system … . [57] Based on the reasoning from J.J. and Wesaquate, it is my view that the s. 11 Charter analysis from Shubley is highlyinterrelated and relevant to the s. 7 analysis in the case at hand. [58] The presumption of innocence has long been recognized as a principle of fundamental justice under s. 7 of the Charter: Pearsonat 682. However, the presumption of innocence is expressly protected in s. 11(

d) of the Charter, meaning that there is a unique interplaybetween this principle and other applicable Charter provisions. This was discussed by Lamer C.J.C. in Pearson (at 684): This operation of the presumption of innocence at trial, where the accused’s guilt of an offence is in issue, does not, in my opinion, exhaustthe operation in the criminal process of the presumption of innocence as a principle of fundamental justice.

The presumption of innocence,as a substantive principle of fundamental justice “protects the fundamental liberty and human dignity of any and every person accused bythe State of criminal conduct”: Oakes, (SCC), [1986] 1 SCR 103], at p. 119. In my view, the presumption of innocence isan animating principle throughout the criminal justice process. The fact that it comes to be applied in its strict evidentiary sense at trialpursuant to s. 11(

d) of the Charter, in no way diminishes the broader principle of fundamental justice that the starting point for anyproposed deprivation of life, liberty or security of the person of anyone charged with or suspected of an offence must be that the person isinnocent. (Emphasis added) [59] However, as alluded to above, even the presumption of innocence as a principle of fundamental justice does not alwaystranslate to the proposition that there can be no deprivation of life, liberty, and security of the person, unless the cause for that deprivationhas been proven beyond a reasonable doubt.

As observed in Pearson, numerous examples exist in the criminal justice system wheredeprivations of life, liberty, and security of person may be found to be in accordance with the principles of fundamental justice, eventhough guilt has not been established beyond a reasonable doubt: Pearson at 684. [60] There are also many situations in which an individual may be held accountable before a regulatory or administrative body andmay also be facing parallel criminal proceedings arising from the same events.

One of the examples given by the Chambers judge – ahearing to determine whether a professional should be disciplined, which can result in expulsion from their chosen profession – provides aparticularly good illustration of a situation where proof on a balance of probabilities is used to find guilt and significant consequences canresult. A theft of trust funds by a lawyer would invoke both the criminal process and the administrative regulatory process, but that doesnot mean that s. 7 would require proof on the higher standard in both forums.

Applying this concept to the issue at hand supports a findingthat the inmate disciplinary process is an administrative process, which is not subject to proof beyond a reasonable doubt. [61] It is also helpful to consider what courts have said about the presumption of innocence and the standard of proof in other non-criminal settings.

For example, in F.H. v McDougall, 2008 SCC 53, [2008] 3 SCR 41 [McDougall], the Supreme Court clearly stated thatthere is no presumption of innocence in a civil case and, consequently, the criminal standard should not be applied to civil cases: [40] Like the House of Lords, I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at commonlaw and that is proof on a balance of probabilities.

Of course, context is all important and a judge should not be unmindful, whereappropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, theseconsiderations do not change the standard of proof. … [41] Since Hanes v. Wawanesa Mutual Insurance Co., (SCC), [1963] S.C.R. 154, at pp. 158–64, it has been clear that thecriminal standard is not to be applied to civil cases in Canada.

The criminal standard of proof beyond a reasonable doubt is linked to thepresumption of innocence in criminal trials. [42] By contrast, in civil cases, there is no presumption of innocence. As explained by J. Sopinka, S. N. Lederman and A. W. Bryant, TheLaw of Evidence in Canada (2nd ed. 1999), at p. 154: Since society is indifferent to whether the plaintiff or the defendant wins a particular civil suit, it is unnecessary to protect against anerroneous result by requiring a standard of proof higher than a balance of probabilities.

It is true that there may be serious consequences to a finding of liability in a civil case that continue past the end of the case. However, thecivil case does not involve the government’s power to penalize or take away the liberty of the individual. … [49] In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In

all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an allegedevent occurred. [62] Of course, the above finding in McDougall was made in the context of tort litigation, not in the context of an administrativedecision, let alone inmate disciplinary proceedings. Additionally, administrative cases that involve discipline may be even closer to beingcriminal in nature than other types of civil cases.

However, the determinative statement in McDougall has been cited with approval bynumerous courts and tribunals involving administrative disciplinary matters where significant penalties can be imposed: see, for example,Leontowicz v College of Physicians and Surgeons of Saskatchewan, 2022 SKQB 98 at para 84; Denham v Ontario College of SocialWorkers, 2021 ONSC 5149 at para 40; The Association of Professional Engineers of Ontario v Rew, 2020 ONSC 6018 at paras 70–71, 93Admin LR (6th) 299; Law Society of Saskatchewan v Phillips, 2018 SKLSS 7 at paras 20–21, rev’d on other grounds 2021 SKCA 16, 456DLR (4th) 469; Ahmed v College of Registered Nurses of Manitoba, 2017 MBCA 121 at para 29, [2018] 4 WWR 840; Doolan v LawSociety of Manitoba, 2016 MBCA 57 at paras 52 and 87, 399 DLR (4th) 527; Fitzpatrick v Alberta College of Physical Therapists, 2012ABCA 207 at paras 12–15, 533 AR 245, leave to appeal to SCC refused, College of Physicians and Surgeons ofSaskatchewan v Shamsuzzaman, 2011 SKCA 41 at para 39, [2011] 8 WWR 1; and Law Society of Upper Canada v Neinstein, 2010ONCA 193 at paras 21–22, 317 DLR (4th) 419. [63] I further note that, even when there is a closer connection to the criminal process, proof beyond a reasonable doubt is notalways required.

For example, in R v Whitty (1999), (NL CA), 135 CCC (3d) 77 (NLCA), the court determined thatthe requirement for a breach of a conditional sentence order to only be proven “on a balance of probabilities” (at para 10), pursuant tos. 742.6(9) of the Criminal Code, withstood scrutiny under s. 7 and s. 11(

d) of the Charter. This conclusion was reached even though theconsequence of a finding of such a breach may include having a community-based sentence converted to a carceral sentence in acorrectional facility: see also R v Filippelli (2002), (ON CA), 165 OAC 179 (CA), and R v Carpentier, 2005 MBCA134, 203 CCC (3d) 251. D.

Other considerations [64] Turning to other jurisdictions, I note that inmates serving sentences in federal penitentiaries have their disciplinary hearingsconducted using the proof beyond a reasonable doubt standard: s. 43(3) of the Corrections and Conditional Release Act, SC 1992, c 20.None of the provinces or territories have this same legislated requirement; the burden of proof is either stipulated to be a balance ofprobabilities or the legislation does not address the standard to be applied.

I note that the standard used in the federal system did not arisedirectly from a court challenge under s. 7 of the Charter. At least, the parties have not drawn any reported cases to that effect to theCourt’s attention. As such, this statutory patchwork does not inform the analysis that falls to be conducted under s. 7 in the matter at hand. [65] As a final argument, the John Howard Society points to the imbalance of power between correctional officials and inmates whoare vulnerable and usually self-represented at a discipline hearing.

Other than statutory provisions applicable in limited and specificcontexts, I am not aware of any authority that would justify balancing power differentials in a non-criminal matter by adjusting the burdenof proof. This portion of the John Howard Society’s submissions is not persuasive. E. Conclusion on the analysis [66] This case well illustrates the principle that context matters. As noted by Lamer C.J.C. in Pearson, quoting La Forest J. inLyons, “It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in whichthey are invoked.

Thus, certain procedural protections might be constitutionally mandated in one context but not in another” (at 361). Ahearing regarding a disciplinary offence is not a criminal proceeding where proof beyond a reasonable doubt is required. Like theChambers judge, I find that the application of s. 7 of the Charter does not change the essence of prison discipline hearings. As described inShubley, these proceedings are administrative, not criminal. [67] I conclude that the presumption of innocence cannot be extended to require proof beyond a reasonable doubt for charges underthe inmate discipline regime.

The potential infringement upon liberty in that context arises from a proceeding that has an administrative,not criminal, nature and purpose. Fundamental justice pursuant to s. 7 of the Charter does not require a disciplinary infraction of the typein question to be proven on a standard of proof beyond a reasonable doubt. As such, s. 68 of the Regulations does not violate s. 7 of theCharter.

Having found no violation of s. 7, there is no need to conduct a s. 1 analysis. [68] As a final note, the John Howard Society explicitly indicates that it did not ask in the Court of Queen’s Bench, and is not askingthis Court, for the recognition of a new principle of fundamental justice. It argues that the Chambers judge erred when, applying the test inMalmo-Levine, he determined that this new principle does not exist, because no such finding was sought.

Without commenting on themerit of whether a new principle of fundamental justice should be recognized or on that aspect of the Chambers Decision, and, in keepingwith the John Howard Society’s submissions on this issue, I will not analyze the principles of fundamental justice from that perspective. VI. CONCLUSION [69]

Section 68 of the Regulations does not violate s. 7 of the Charter. The appeal is dismissed. Costs of the appeal were not soughtby the government and none are awarded. “Tholl J.A.” Tholl J.A.I concur. “Schwann J.A.” Schwann J.A.I concur. “McCreary J.A.” McCreary J.A.