- Anjali Choudhary
- 1 day ago
- 7 min read
Updated: 6 hours ago
There are some fundamental legal principles that Canadian society rigorously protects. One such principle is the presumption that people are innocent until proven guilty, which is expressly protected by section 11(d) of the Charter of Rights and Freedoms.
Section 11(d) states that “any person charged with an offence has the right: to be presumed innocent until proven guilty according to law.”[1] This section exclusively applies to those who have been criminally charged, whereas section 7 of the Charter — the guarantee of life, liberty, and security of the person — serves as a source of residual protection outside of this context.
Under both sections 11(d) and 7, the presumption of innocence requires a high standard of proof to be met: an accused individual must be found guilty beyond a reasonable doubt.[2] This stringent standard reflects the gravity of the potential consequence of imprisonment, which is, on its face, an exceptionally serious deprivation of liberty. As the Supreme Courts states: imprisonment is “the most severe deprivation of liberty known to our law.”[3]
In certain contexts, such as administrative proceedings or civil cases, the burden of proof is lower, requiring proof only on a balance of probabilities rather than beyond a reasonable doubt. This lower standard was at issue in the recent case of John Howard Society v Saskatchewan, which concerned the constitutionality of Saskatchewan’s inmate disciplinary process. With the presumption of innocence at stake, the Court found that a reasonable doubt standard must apply to inmates charged with major disciplinary offences.
Background
Factual Background
Under section 68 of Saskatchewan’s Correctional Services Regulations, 2013 (“CSR”), inmates charged with any disciplinary offence were judged on a balance of probabilities.[4] These offences included assault, gang activity, possessing contraband, and theft.[5] Once an incident occurred, a designated staff member would charge the inmate for a “minor” or “major” disciplinary offence, triggering a disciplinary hearing.[6]
For major offences, the consequences could be severe. Hearings could result in disciplinary segregation — confinement to a cell for 23 hours a day for up to 10 days — or loss of earned remission that would otherwise allow early release before the completion of a sentence, for up to 15 days.[7] If there were multiple sanctions, they could be imposed consecutively and extend the total duration of the sanction.
The John Howard Society — a prisoners’ rights advocacy group — argued that this approach and section 68 of the CSR violated sections 7 and 11(d) of the Charter.
Legal Background
The Canadian legal system rests on following precedent, with courts being expected to follow rulings established in prior cases. This principle, which is known as stare decisis, was a hurdle in this case. At the lower courts, the John Howard Society only brought a challenge under section 7, as section 11(d) was considered inapplicable due to the Supreme Court’s decision in R v Shubley. That case found that disciplinary segregation and loss of earned remission arising from disciplinary proceedings do not engage section 11.[8]
Shubley relied on the test articulated by the Supreme Court in R v Wigglesworth, which set out that section 11 only applies when proceedings are criminal in nature or lead to true penal consequences.[9] In John Howard Society, the focus was on the “true penal consequence” part of this test, which requires a consequence to either entail imprisonment or a large fine that is imposed for the purpose of redressing harms to society.[10] Disciplinary proceedings did not meet this bar, according to Shubley.[11]
While stare decisis is fundamental to our legal system, the common law recognizes that precedent may sometimes, on rare occasions, need to be overturned. This is exactly what happened in this case.
Decision
Decision on Section 11(d)
The Court found that, when applying a generous interpretation to section 11, as is required by Charter jurisprudence, the consequences of disciplinary hearings — namely disciplinary segregation and loss of earned remission — can result in additional imprisonment.[12] This satisfies the true penal consequence test and therefore engages section 11(d).[13]
In reaching its conclusion, the Court criticized Shubley’s reliance on formalistic interpretation — an outdated method of interpretation that is not regularly used by Canadian courts.[14] This method, which focuses on the original intention or purportedly “plain” meaning of legal texts, has largely been displaced in Canadian jurisprudence by purposive and “living tree” approaches. According to the majority, avoiding formalism is required for the “unremitting protection of individual rights and liberties,”[15] with generous, purposive interpretation of the right being preferred to robustly protect individual liberty.[16]
The Court overturned Shubley’s statements about the results of the true penal consequence test, finding that the formalistic distinction between being sentenced to imprisonment and being subject to conditions of imprisonment no longer reflects the Court’s jurisprudence.[17]
Rather, the concept of imprisonment should be flexible enough to include liberty restrictions through disciplinary segregation — which exacerbates isolation from society and limits freedom of movement — and loss of earned remission — which imposes additional days of imprisonment.[18] The severity of these consequences justifies counting them as distinct forms of imprisonment.[19]
Therefore, the standard of proof for major disciplinary offences under Saskatchewan’s regime must be beyond a reasonable doubt, as it is where other forms of imprisonment are among the potential consequences of a hearing. As section 68 of the CSR allows for a lower threshold, it violates section 11(d) and the presumption of innocence.[20]
Decision on Section 7
The Court found that, even if section 11(d) did not apply in this case, section 68 of the CSR still infringed the presumption of innocence protected by section 7.[21] When there are severe liberty-depriving consequences based on allegations of moral wrongdoing — such as disciplinary segregation or loss of earned remission — proof beyond a reasonable doubt is required.[22]
Decision on Section 1
The CSR was found to not be saved under the section 1 Oakes test. Though there was a pressing and substantial objective of promoting efficiency in the disciplinary process, the minimal impairment test was not met.[23] The Court found that a reasonable, Charter-compliant alternative already exists in federal penitentiaries: applying the burden of proof beyond a reasonable doubt.[24]
Conclusion
With an ultimate finding of no force and effect, the Government of Saskatchewan will, with a reasonable degree of hurry, need to amend this legislation. It remains to be seen whether other provinces with similar legislation will follow suit, or await their own court challenges. Aside from the major ripple effect this decision will have on inmates’ rights and the operations of prison systems, this decision also raises broader questions about the Court’s interpretive approach.
In making its decision, the Court not only explicitly reaffirmed its commitment to purposive constitutional interpretation, but also found that following a contrary interpretative principle can erode the legal foundation of an otherwise binding precedent. This is despite the fact that purposive interpretation existed as the Court’s preferred approach prior to Shubley, and was not a new methodology adopted subsequent to the case.[25]
The dissent, disagreeing that a heightened standard of proof is required, expressed concerns that adopting the majority’s interpretation would broaden the scope of section 11 protections too far beyond what the Charter originally intended.[26] This reflects criticisms that purposivism and the “living tree” doctrine attract about straying too far from what the framers of the Constitution had in mind. However, in rebuttal, the majority stated that its ruling is adequately limited to individuals charged with an offence and thus will not apply to all instances of liberty deprivation that are as severe as imprisonment.[27]
Nearly a century after the Person’s Case[28] entrenched the tradition of Canadian courts using a broad and liberal interpretation of constitutional law, courts continue to push the boundaries of rights protection to ensure that law keeps pace with evolving social norms and values. The question is whether these boundaries will be stretched too far.
***
Anjali Choudhary is a 3L law student at the University of Alberta and a staff writer for Seven/Fifty
[1] Canadian Charter of Rights and Freedoms, s 11(d), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[2] John Howard Society of Saskatchewan v Saskatchewan (Attorney General), 2025 SCC 6 at para 2 [John Howard Society].
[3] Ibid at para 55, citing R v Wigglesworth, 1987 CanLII 41 (SCC) [Wigglesworth].
[4] John Howard Society, supra note 2 at para 3.
[5] Ibid at para 10.
[6] Ibid.
[7] Ibid at paras 11–13.
[8] Ibid at para 4; R v Shubley, 1990 CanLII 149 (SCC) [Shubley].
[9] Wigglesworth, supra note 3.
[10] John Howard Society, supra note 2 at paras 27–28.
[11] Ibid at para 32.
[12] John Howard Society, supra note 2 at para 75.
[13] Ibid at para 76.
[14] Ibid at para 34.
[15] Ibid at para 37, citing Hunter v Southam, 1984 CanLII 33 (SCC) at 155.
[16] John Howard Society, supra note 2 at para 48.
[17] Ibid.
[18] Ibid paras 48, 66–67, 74.
[19] Ibid at paras 55–57.
[20] Ibid at paras 75–77.
[21] Ibid at para 80.
[22] Ibid at para 86.
[23] Ibid at paras 94, 97.
[24] Ibid at para 96.
[25] Ibid at para 196.
[26] Ibid at para 198.
[27] Ibid at para 77.
[28] Edwards v Canada (Attorney General), 1929 CanLII 438 (UK JCPC).