Ottawa, ON (unceded Algonquin Anishinaabeg traditional territory) – The BC Civil Liberties Association (BCCLA) celebrates today’s decision of the Supreme Court of Canada in John Howard Society of Saskatchewan v Attorney General of Saskatchewan. This decision affirms the need to provide robust procedural protections before using loss of liberty as a punishment.
When prisoners in Saskatchewan are accused of breaking institutional rules, they are given a hearing before being found guilty and having a penalty imposed. These penalties can be extremely harsh, including loss of earned remission (essentially prolonging the prison sentence) and placement in segregation. Despite these severe consequences, the standard of proof required to find a prisoner guilty of a disciplinary offence is the balance of probabilities, much lower than the criminal standard of beyond a reasonable doubt.
The John Howard Society of Saskatchewan brought a Charter challenge, claiming that the failure to use the beyond a reasonable doubt standard violates the Charter’s section 7 rights to liberty and security of the person, and the presumption of innocence under section 11 (d). The Court agreed.
The Court recognized that punishments of segregation and loss of earned remission are as severe as incarceration. As a result, the principles of fundamental justice require that prison disciplinary offences be proven beyond a reasonable doubt.
The BCCLA intervened to ask the Supreme Court of Canada to clarify the relationship between section 7 and the other legal rights contained in sections 8-14 of the Charter. We argued that section 7 can provide just as much protection as sections 8-14, whether or not the latter sections apply in a particular case. In this way, section 7 can fill any unintended gaps in the Charter’s legal protections. The Court agreed, finding that the law would be unconstitutional under section 7 even if section 11 did not apply.
“Solitary confinement is an inhumane practice that should be banned in all its forms. While greater procedural protections are welcome, the rights of prisoners will never be truly vindicated until solitary confinement is abolished. Using segregation as a form of punishment is unnecessarily cruel and simply cannot be justified.”
-Vibert Jack, Litigation Director, BCCLA
The BCCLA was represented by Alexandra Belley-McKinnon and Jean-Philippe Groleau of Davies Ward Phillips & Wineberg and Molly Krishtalka of Alexeev Attorneys.
