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Charter - Presumption of Innocence [s.11(d)]. John Howard Society of Saskatchewan v. Saskatchewan (Attorney General) [Charter 11(d) has independent protection in Charter s.7]
In John Howard Society of Saskatchewan v. Saskatchewan (Attorney General) (SCC, 2025) the Supreme Court of Canada allowed an appeal from the Saskatchewan Court of Appeal which held that s. 68 of the Correctional Services Regulations ['Burden of proof'], regarding prison disciplinary offences [under Saskatchewan's Correctional Services Act, 2012] does not violate s. 7 of the Charter. The Supreme Court held similarly regarding a fresh appellate argument that it also violated the Charter s.11(d) 'presumption of innocence' protection.
Here the court finds that the prison disciplinary offences infringe Charter s.7, via the Charter 11(d) 'presumption of innocence' provision [ie. "s.7 provides independent protection of this principle of fundamental justice in proceedings where s. 11 does not apply"]:C. Section 7 of the Charter Is Infringed
[80] Even if I had concluded that s. 11 does not apply to major disciplinary offences, I am of the opinion that s. 68 of the Regulations infringes the presumption of innocence protected under s. 7 of the Charter, which, in these circumstances, necessitates the application of a criminal standard of proof.
[81] In Pearson, Lamer C.J. made it clear that s. 11(d) of the Charter does not “exhaust” the operation of the presumption of innocence and that s. 7 provides independent protection of this principle of fundamental justice in proceedings where s. 11 does not apply (p. 688). This holding built on Dickson C.J.’s observation in Oakes that the presumption of innocence is “referable and integral to the general protection of life, liberty and security of the person contained in s. 7 of the Charter” (p. 119). The specific requirements of the presumption of innocence, however, vary according to the context of the proceeding at issue (Pearson, at p. 684). This explains why not every proceeding where a s. 7 interest is engaged requires a standard of proof beyond a reasonable doubt (ibid.).
[82] Lamer C.J. provided two examples of proceedings where a heightened standard of proof would likely be required to conform with the dictates of s. 7’s protection of the presumption of innocence. The first example cited by Lamer C.J., relying on this Court’s reasoning in R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, was sentencing proceedings with contested aggravating factors (Pearson, at p. 686). In Gardiner, it was held that, at common law, the Crown has a persuasive burden to prove aggravating factors beyond a reasonable doubt (p. 415). In justifying its holding, this Court explained that “[c]rime and punishment are inextricably linked” and that “the facts which justify the sanction are no less important than the facts which justify the conviction” (ibid.). In D.B., this Court cited Lamer C.J.’s example in Pearson with approval, holding that a provision of the Youth Criminal Justice Act, S.C. 2002, c. 1, that relieved the Crown of its burden of proving aggravating factors beyond a reasonable doubt violated the presumption of innocence guaranteed under s. 7 of the Charter (paras. 78-82).
[83] The second example cited by Lamer C.J. was civil contempt proceedings. While he recognized that civil contempt may constitute an “offence” that triggers the protections of s. 11 of the Charter, he noted that, even if it did not, the presumption of innocence under s. 7 would likely require a criminal standard of proof in these proceedings (Pearson, at pp. 686-87). To support this claim, he noted that both the common law and Quebec civil law require this heightened standard (p. 687).
[84] The features of these two types of proceedings cited in Pearson assist in discerning when s. 7’s protection of the presumption of innocence will require proof beyond a reasonable doubt. Both circumstances involve proceedings where the state (a) accuses an individual of moral wrongdoing and (b) seeks to punish the individual with severe liberty-depriving consequences for such wrongdoing. And importantly, as Lamer C.J.’s reference to the civil contempt proceedings exemplifies, proceedings that fall outside of the criminal process, strictly speaking, can have both of these features.
[85] This Court’s subsequent application of Pearson in Demers is consistent with this guidance. In that case, this Court considered whether the proceedings outlined in Part XX.1 of the Criminal Code with respect to accused who are unfit to stand trial violated s. 7’s presumption of innocence guarantee. In declaring that the presumption of innocence was respected, this Court noted that a heightened standard of proof is unnecessary in Review Board disposition proceedings because they do not involve a “determination of guilt or innocence” with respect to an unfit accused, nor do they presume that the accused is dangerous (para. 34). Instead, the Review Board is required to “perform an assessment” of an unfit accused and impose the “least onerous condition on his or her liberty” (ibid.). In other words, Review Board proceedings involve no accusation by the state of moral wrongdoing — the first requirement in order for s. 7 to mandate proof beyond a reasonable doubt.
[86] The presumption of innocence under s. 7 of the Charter requires Saskatchewan’s proceedings for major disciplinary offences to use a criminal standard of proof. First, the preceding analysis shows that major disciplinary offence proceedings in Saskatchewan may lead to the imposition of severe consequences that affect an inmate’s residual liberties, satisfying the second requirement outlined in Pearson. By functionally elevating the severity of a sentence, both disciplinary segregation and loss of earned remission represent consequences similar to those that result from proving an aggravating factor at sentencing.
[87] Second, disciplinary proceedings also meet the first requirement outlined in Pearson since they involve an accusation of moral wrongdoing. It is true that Shubley’s analysis of the criminal in nature test established that disciplinary offences do not involve an inmate “being called to account to society for a crime violating the public interest” (p. 20). Assuming, without deciding, that this characterization remains authoritative, I am not convinced that it forecloses a determination that disciplinary proceedings accuse inmates of moral wrongdoing.
[88] For example, civil contempt proceedings meet the two requirements outlined in Pearson but arguably do not call an individual to account to society for a crime. As this Court held in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, the distinction between criminal contempt and civil contempt is that only the former rests on “the element of public defiance”, while the latter is focused on coercion and the protection of private interests (para. 31). Even so, proceedings for civil contempt involve an accusation of moral wrongdoing because such conduct shows disrespect “for the role and authority of the courts” (Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., 1992 CanLII 29 (SCC), [1992] 2 S.C.R. 1065, at p. 1075).
[89] Similar logic applies to inmate disciplinary proceedings. While such proceedings seek to achieve private, disciplinary objectives, they also serve a public function by signalling moral and social disapproval of certain behaviours while encouraging an inmate’s rehabilitation and preparation for re-entry into society. As the Queen’s Prison Law Clinic explains, the moral nature of inmate disciplinary regimes has “obvious parallels” with the criminal justice system (I.F., at para. 9).
[90] In sum, major disciplinary offence proceedings involve an accusation of moral wrongdoing and the potential imposition of severe liberty-depriving consequences. As a result, s. 7’s protection of the presumption of innocence requires these offences to be proven beyond a reasonable doubt. Because s. 68 of the Regulations permits findings of guilt on a lesser standard, s. 7 of the Charter is infringed. . John Howard Society of Saskatchewan v. Saskatchewan (Attorney General)
In John Howard Society of Saskatchewan v. Saskatchewan (Attorney General) (SCC, 2025) the Supreme Court of Canada allowed an appeal from the Saskatchewan Court of Appeal which held that s. 68 of the Correctional Services Regulations ['Burden of proof'], regarding prison disciplinary offences [under Saskatchewan's Correctional Services Act, 2012] does not violate s. 7 of the Charter. The Supreme Court held similarly regarding a fresh appellate argument that it also violated the Charter s.11(d) 'presumption of innocence' protection.
After expanding the application of the s.11(a-i) ['Proceedings in criminal and penal matters'] provisions [at paras 52-77], the court concludes that the Charter 11(d) ['presumed innocent until proven guilty'] protection applies to prison disciplinary offences:(4) Section 68 of the Regulations Infringes Section 11(d) of the Charter
[78] Where an accused person faces penal consequences for an offence, s. 11(d)’s guarantee of the presumption of innocence requires that the state prove every element of the offence beyond a reasonable doubt (Oakes, at p. 121; R. v. Wholesale Travel Group Inc., 1991 CanLII 39 (SCC), [1991] 3 S.C.R. 154, at p. 196; R. v. Brown, 2022 SCC 18, [2022] 1 S.C.R. 374, at para. 99).
[79] Section 68 of the Regulations permits findings of guilt for a major disciplinary offence to be made where the offences have not been proven beyond a reasonable doubt. As a result, this provision infringes s. 11(d). . John Howard Society of Saskatchewan v. Saskatchewan (Attorney General)
In John Howard Society of Saskatchewan v. Saskatchewan (Attorney General) (SCC, 2025) the Supreme Court of Canada allowed an appeal from the Saskatchewan Court of Appeal which held that s. 68 of the Correctional Services Regulations ['Burden of proof'], regarding prison disciplinary offences [under Saskatchewan's Correctional Services Act, 2012] does not violate s. 7 of the Charter. The Supreme Court held similarly regarding a fresh appellate argument that it also violated the Charter s.11(d) 'presumption of innocence' protection.
Here the court summarizes the case:[1] A fundamental principle of Canadian law is that the guilt of a person charged with an offence must be proven beyond a reasonable doubt before they are punished with imprisonment. This appeal invites this Court to confirm whether such a principle applies to persons behind the walls of correctional institutions who are charged with disciplinary offences. I conclude that it does.
[2] Section 11(d) of the Canadian Charter of Rights and Freedoms guarantees all persons “charged with an offence” the right to be presumed innocent until proven guilty. This Court has long held that this presumption requires guilt to be proven beyond a reasonable doubt (see R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at p. 121). This Court has also recognized that s. 7 of the Charter provides residual protection for the presumption of innocence in circumstances where s. 11 does not apply (see R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at p. 688). In proceedings where a moral judgment is made and severe liberty-depriving consequences are imposed as punishment, such as sentencing hearings with contested aggravating factors, s. 7’s residual protection operates to require proof beyond a reasonable doubt (ibid., at p. 686; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, at paras. 78-80).
[3] The John Howard Society of Saskatchewan (“JHS”) argues that s. 68 of Saskatchewan’s Correctional Services Regulations, 2013, R.R.S., c. C-39.2, Reg. 1 (“Regulations”), infringes ss. 7 and 11(d) of the Charter because it sets the applicable standard of proof in inmate disciplinary proceedings at a balance of probabilities. This civil standard of proof is used even in circumstances where severe liberty-depriving consequences may be imposed. Under s. 77(1) of Saskatchewan’s Correctional Services Act, 2012, S.S. 2012, c. C-39.2 (“Act”), inmates in provincial correctional institutions who have been found guilty of a “major disciplinary offence” face potential sanctions that include disciplinary segregation for up to 10 days and loss of up to 15 days of earned remission.
[4] JHS initially challenged s. 68 of the Regulations exclusively under s. 7 of the Charter, arguing that the residual protection for the presumption of innocence requires proof of guilt beyond a reasonable doubt. The courts below disagreed, concluding that neither the nature of inmate disciplinary proceedings nor the severity of disciplinary segregation and loss of earned remission necessitates the heightened standard of proof. Reliance on s. 11(d) of the Charter was constrained by this Court’s decision in R. v. Shubley, 1990 CanLII 149 (SCC), [1990] 1 S.C.R. 3, which held that inmate disciplinary proceedings in which disciplinary segregation and loss of earned remission are possible sanctions do not engage s. 11.
[5] Under the tests articulated in R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541, s. 11 applies to a person “charged with an offence” when the proceedings (a) are criminal in nature or (b) may lead to the imposition of true penal consequences, such as “imprisonment” (pp. 559-61). In Shubley, the majority held that Ontario’s inmate disciplinary proceedings were not “criminal in nature” because they lacked the essential characteristics and public accountability purpose of criminal proceedings (p. 20). Nor did they lead to “true penal consequences”, because disciplinary segregation and loss of earned remission do not constitute a “sentence of imprisonment” (pp. 21-23).
[6] On appeal, JHS asks this Court to overturn Shubley and to hold that Saskatchewan’s inmate disciplinary proceedings engage s. 11 of the Charter. In JHS’s submission, the legal foundations of Shubley have been eroded by subsequent jurisprudence from this Court that has clarified the requirements of the Wigglesworth tests and emphasized the importance of adopting a functional, rather than a formalistic, understanding of punishment. JHS argues that, if Shubley is overturned, s. 11 should apply to Saskatchewan’s inmate disciplinary proceedings because they are criminal in nature and may lead to the imposition of true penal consequences.
[7] As I will explain, I agree that Shubley’s application of Wigglesworth’s true penal consequence test rests on eroded legal foundations. Shubley’s conclusion that disciplinary segregation and loss of earned remission do not engage s. 11 because they do not amount to imprisonment has been attenuated by this Court’s consistent direction that judges must interpret the Charter in a generous, rather than a formalistic, manner that gives effect to the purpose of the right in question. When an inmate faces the risk of disciplinary segregation or loss of earned remission, they face the possibility of additional imprisonment — a true penal consequence.
[8] Section 11 therefore applies to Saskatchewan’s inmate disciplinary proceedings involving the adjudication of a “major disciplinary offence”. It follows that s. 68 of the Regulations infringes s. 11(d) of the Charter because it permits the imposition of imprisonment when a reasonable doubt as to the accused’s guilt may exist. Moreover, even if I had concluded that s. 11 does not apply, I am satisfied that s. 68 of the Regulations also infringes s. 7 of the Charter. These infringements cannot be saved by s. 1 of the Charter.
[9] I would allow the appeal, set aside the judgments below, and declare s. 68 of the Regulations to be of no force or effect. . R. v. D.N.
In R. v. D.N. (Ont CA, 2023) the Court of Appeal allowed a Charter s.11(d) ["presumption of innocence"] challenge regarding several CCC sexual offence [ss.171.1(3) ("Making sexually explicit material available to child") and 172.2(3) ("Agreement or arrangement — sexual offence against child")] evidentiary presumptions:(1) Are the Presumptions contained in ss. 171.1(3) and 172.2(3) of the Criminal Code unconstitutional?
[33] As I have said, the child exploitation offences of which the appellant was convicted each contain an identical element requiring either that the victim be under a specified age or that the accused believes the victim is under the specified age. For example, s. 172.1(1)(a), one of the child luring subsections, reads as follows:Every person commits an offence who, by a means of telecommunication, communicates with
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2). [Emphasis added.] [34] Similarly, each of the child exploitation offence provisions contains an identical presumption designed to assist the Crown with proof of the accused’s belief in the age of the victim, where the Crown is not in a position to prove the victim’s actual age. Section 172.1(3), the Presumption in relation to child luring, which the Supreme Court of Canada ruled unconstitutional, reads as follows:Evidence that the person referred to in paragraph 1 (a), (b), or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age. [Emphasis added.] [35] Sections 171.1(3) and 172.2(3) contain identical language to s. 172.1(3) save that the specified ages are set out in numeric form.
[36] As indicated above, the Crown does not oppose the appellant raising this issue for the first time on appeal and this court concluding that the Presumptions in ss. 171.1(3) and 172.2(3) violate s. 11(d) of the Charter. Further, the Crown does not contend that these Presumptions can be saved under s. 1 of the Charter.
[37] I see no principled basis to distinguish s. 172.1(3), the provision struck down in Morrison, from the Presumptions at issue in this case. The language in the Presumptions at issue in this case is identical to s. 172.1(3). Moreover, the Presumptions all have the same effect. They allow the Crown to obtain a conviction despite the existence of a reasonable doubt because the fact that a representation of age was made to an accused does not inexorably lead to the conclusion that the accused believed that conclusion: Morrison, at paras. 51, 56.
[38] Accordingly, I find that ss. 171.1(3) and 172.2(3) infringe s. 11(d) of the Charter and cannot be saved under s. 1.
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