The John Howard Society of Saskatchewan argued the standard of proof beyond a reasonable doubt should be required in provincial inmate disciplinary hearings.
A theoretical train carrying legal arguments on behalf of inmates in provincial jails reached what may well be its final stop in Ottawa on Tuesday.
In front of the judges of the Supreme Court of Canada (SCC), the John Howard Society of Saskatchewan (JHSS) advanced arguments about why the standard of proof beyond a reasonable doubt should be required to find inmates guilty in provincial inmate disciplinary hearings.
That’s opposed to the lesser standard of proof, which is “on a balance of probabilities” and currently in use in provincial correctional facilities. The higher standard of proof of beyond a reasonable doubt is what is used in criminal trials and is also used in federal correctional disciplinary hearings.
A disciplinary hearing panel in provincial facilities must only find that “it is more likely than not that the event happened as described,” in order to find an inmate guilty.
“Really, all we’re talking about here today is this: when the state seeks to deprive someone of their liberty, as punishment for an offence, misconduct, breaching a rule, does the state need to be sure of that person’s guilt, or is ‘probably’ good enough?”
That was the summation offered to judges by lawyer Michelle Biddulph, who made submissions on behalf of the JHSS, a non-profit organization that advocates for inmates and people involved with the criminal justice system.
According to JHSS, findings of guilt in correctional disciplinary hearings can come with liberty-depriving consequences. These can include segregation, added time through loss of earned remission (early release), and additional blemishes on a person’s disciplinary record that can affect future sentences, the non-profit submitted.
Biddulph and her colleague Pierre Hawkins spoke on those issues during the first day of a two-day hearing.
Both lawyers spent much of their allotted time responding to questions from judges.
Judges asked them about the scope of their position, and whether it could be refined. At times, the lawyers were challenged and asked about what kinds of offences they felt should require the higher standard of proof.
The impact of changes to the law on the correctional system’s ability to maintain order in its facilities was explored and issues of constitutional rights were discussed.
The arguments of JHSS were also looked at through the lens of past rulings from Canadian courts.
The SCC hearing is not the first time the case has been raised before a court.
JHSS has already received two court rulings, neither of which satisfied the non-profit.
“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,” Saskatchewan Court of Appeal Justice Jerome Tholl wrote.
JHSS was granted “leave to appeal” to the SCC, meaning the nation’s top court has decided to hear the case, which it deems to engage a question of sufficient importance.
Following submissions from JHSS Tuesday, SCC judges heard from a list of interveners (third parties), including civil liberties groups and Indigenous advocacy groups, each of whom presented their own take on the issues engaged by the case.
The Saskatchewan government is expected to make submissions Wednesday, along with more interveners, including the Attorneys General of Canada, Ontario, Alberta, Quebec and British Columbia.
It is currently unclear when the court will render a decision.
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