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Prisons - Disciplinary Offences. 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 explains how disciplinary prison offences (punished by segregation and loss of earned remission) are now covered by Charter s.11:(3) Section 11 Is Engaged by Offences Punishable by Disciplinary Segregation or Loss of Earned Remission
(a) Meaning of “Imprisonment”
[52] The key question in this appeal is whether the punishments of disciplinary segregation and loss of earned remission constitute forms of “imprisonment”, thereby satisfying the true penal consequence test and engaging the protections in s. 11 of the Charter. Answering this question requires a clarification of the meaning of “imprisonment” under Wigglesworth’s true penal consequence test.
[53] At the hearing, the AGS described imprisonment as a “binary” and suggested that an individual cannot be further imprisoned once incarcerated (transcript, day 2, at p. 36). For this reason, the AGS submits that disciplinary segregation and loss of earned remission cannot be understood as forms of imprisonment that trigger s. 11 of the Charter. However, this reasoning is rooted in the formalistic distinction between the sentence and conditions of imprisonment, a distinction that, as discussed above, this Court has departed from when interpreting the scope of other Charter protections.
[54] Instead, I would take up JHS’s invitation and adopt Cory J.’s definition of imprisonment in his dissenting reasons in Shubley. Cory J. stated that imprisonment means “the denial of freedom of movement and the segregation or isolation of an inmate from society” (p. 11). He thus defined the concept of imprisonment by reference to its substantive attributes, rather than unduly fixating on the form in which such a consequence is often imposed.
[55] Adopting this functional definition of imprisonment gives effect to the liberty-protecting purpose of s. 11. Imprisonment always satisfies the true penal consequence test and thus triggers s. 11 protections because it is “the most severe deprivation of liberty known to our law” (Wigglesworth, at p. 562). Imprisonment under Wigglesworth’s true penal consequence test must therefore include state-imposed sanctions that, in light of their attributes, represent a deprivation of liberty at least as severe as that resulting from an initial sentence of imprisonment. This approach is necessary to ensure that the state cannot simply label forms of imprisonment with euphemisms in order to circumvent the application of s. 11 of the Charter.
[56] In assessing whether a sentence of imprisonment and the sanction in question are equivalent in severity, a court must consider the fact that sentences of imprisonment can include non-carceral punishments that share the fundamental features of significantly curtailing an individual’s freedom of movement and segregating them from others. For example, some sections of the Criminal Code, R.S.C. 1985, c. C‑46, treat conditional sentences as sentences of imprisonment (see, e.g., R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 29). This Court has called such sentences “imprisonment without incarceration” (R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, at para. 25).
(b) Disciplinary Segregation and Loss of Earned Remission Are Forms of Imprisonment
[57] In this case, we are dealing with sanctions that impose a constraint on an individual’s freedom of movement and segregate them from others to a degree at least equivalent to that of a sentence of incarceration.
[58] As Cory J. explained in Shubley, disciplinary segregation and loss of earned remission fall within a functional definition of imprisonment and therefore constitute true penal consequences. Disciplinary segregation involves the use of “[p]risons within prisons” and, when imposed, effectively leads to “an additional violation of whatever residual liberties an inmate may retain” (p. 9). Likewise, loss of earned remission constitutes imprisonment because it has the effect of extending an inmate’s period of incarceration and therefore extends the time during which “freedom of movement and the ability to interact with others” are curtailed (p. 11).
[59] A brief historical overview of the manner in which disciplinary segregation and loss of earned remission have been perceived in Canada supports Cory J.’s conclusion and elucidates how both of these punishments have frequently been understood as exceptionally severe deprivations of liberty for those already living within a prison. Unlike most other punishments imposed on inmates, both significantly curtail an inmate’s freedom of movement while exacerbating or continuing the inmate’s segregation from society. In narrowing the scope of “imprisonment” under Wigglesworth’s true penal consequence test to a formal sentence of imprisonment, the majority in Shubley failed to meaningfully consider this history.
(i) Disciplinary Segregation
[60] The use of segregation as a disciplinary measure against inmates has been a feature of Canadian correctional institutions since the first penitentiary opened in Kingston in 1835. The legislation applicable at the time referred to the possibility that individuals could be “confined in solitude for misconduct in the Penitentiary” (An Act to provide for the Maintenance and Government of the Provincial Penitentiary, S.U.C. 1834, 4 Will. 4, c. 37, s. 27).
[61] Since that time, disciplinary segregation has been consistently understood as a distinctive form of imprisonment within correctional institutions. For example, after finding that the Kingston Penitentiary had instituted a cruel system of corporal punishment to manage inmate discipline, the Brown Commission recommended in 1849 that persistent rule infractions be punished by segregation instead (Reports of the Commissioners Appointed to Inquire Into the Conduct, Discipline, & Management of the Provincial Penitentiary, at p. 288). In discussing segregation, the Commission noted that “the human mind cannot endure protracted imprisonment under this system” (p. 286 (emphasis added)).
[62] Reliance on disciplinary segregation continued following Confederation. The first set of disciplinary regulations issued under The Penitentiary Act of 1868, S.C. 1868, c. 75, authorized “[c]onfinement in the penal or separate cells with such diet as the Surgeon shall pronounce sufficient, respect being had to the constitution of the convict, and the length of the period during which he is to be confined” (Rules and Regulations for the Government of the Penitentiaries of the Dominion of Canada (1870), s. 361, quoted in M. Jackson, Prisoners of Isolation: Solitary Confinement in Canada (1983), at p. 40). In his annual report for the 1891-92 year, the Inspector of Penitentiaries described segregation cells as “the dungeon” (Report of the Minister of Justice as to Penitentiaries in Canada for the Year Ended 30th June 1892, reproduced in Sessional Papers, vol. XXVI, No. 10, 3rd Sess., 7th Parl., 1893, No. 18, at p. ix). And while he viewed this “punishment” as being, “as a rule, deserved”, he believed that if a short time in the “dungeon do[es] not produce the desired effect, longer confinement there generally results in a greater degree of callousness, stubbornness and resistance to authority” and should therefore be avoided (ibid.).
[63] In 1894, the construction of a block of cells that would be used for segregation in the Kingston Penitentiary was completed. The formal name for these cells was the “Prison of Isolation” (Jackson, at pp. 36-37). Regulations promulgated in 1893 stated the criteria for admission:Any male convict whose conduct is found to be vicious, or who persists in disobedience to the Rules and Regulations of the Prison, or who is found to exercise a pernicious influence on his fellow convicts may be imprisoned in the Prison of Isolation for an indefinite period not to exceed the unexpired term of the convict’s sentence. [Emphasis added.]
(Jackson, at p. 37, quoting Rules and Regulations Respecting Prisoners of Isolation and the Punishment and Government of Convicts, s. 1.) [64] Government reports throughout the 20th century likewise recognized the distinctive quality of disciplinary segregation. The Swackhamer Report of 1972 listed “punitive dissociation” as a punishment that, along with loss of remission and corporal punishment, justified a right of appeal if imposed (Report of the Commission of Inquiry Into Certain Disturbances at Kingston Penitentiary During April, 1971, at p. 55). The Vantour Report of 1975 recognized the distinctive function of disciplinary segregation, stating that it “serves to isolate the inmate for a short period and represents a denunciation of his behaviour” (Report of the Study Group on Dissociation, at p. 74). The Vantour Report also highlighted that disciplinary segregation can impact the length of an inmate’s period of incarceration because it is “presumed that he will not be granted his earned remission for the period during which he is dissociated” (p. 81).
[65] As well, the 1987 Working Paper No. 5 of the Correctional Law Review noted that “punitive dissociation is still regarded as the most severe disciplinary measure at the disposal of prison officials” (“Correctional Authority and Inmate Rights”, in Solicitor General Canada, Influences on Canadian Correctional Reform: Working Papers of the Correctional Law Review, 1986 to 1988 (2002), 165, at p. 209). It further observed that courts had increasingly intervened in inmate disciplinary matters because “punishments imposed as a result of disciplinary convictions . . . can significantly affect the conditions of confinement (through punitive dissociation)” (p. 197).
[66] This history reveals that disciplinary segregation has always been understood as a uniquely severe form of punishment for inmates. While the conditions of disciplinary segregation have evolved over time, this form of punishment by its very nature has the effect of significantly curtailing an inmate’s freedom of movement while severely limiting access to human interaction. As this Court acknowledged in Cardinal, regardless of the label placed on inmate segregation, “its effect on the inmate . . . is the same” (p. 654).
[67] This effect is present in Saskatchewan’s practice of disciplinary segregation. The AGS concedes that when inmates are subject to disciplinary segregation, they are only guaranteed one hour outside of their cells each day. For the other 23 hours of the day, inmates remain in their cells. While some inmates have a cellmate, television, and natural light, others do not. Where safety concerns exist, inmates can be segregated in more secure units. Accordingly, Saskatchewan’s practice of disciplinary segregation shares the fundamental features of significantly curtailing an inmate’s residual freedom of movement and exacerbating their segregation from society. It therefore constitutes a distinct form of imprisonment.
(ii) Loss of Earned Remission
[68] Remission has been used in Canadian correctional institutions since The Penitentiary Act of 1868, which introduced a scheme that reduced the length of an inmate’s sentence as a reward for “good behaviour, diligence and industry” (s. 62; see also D. P. Cole and A. Manson, Release From Imprisonment: The Law of Sentencing, Parole and Judicial Review (1990), at p. 163). Since that enactment, government reports have consistently acknowledged that remission acts as a de facto reduction in an inmate’s sentence of imprisonment and that, by extension, its loss constitutes a lengthening of the inmate’s sentence.
[69] For example, the Archambault Commission described earned remission as a “reward of a shorter sentence” (Report of the Royal Commission to Investigate the Penal System of Canada (1938), at p. 107). The Commission further explained that “[w]hen remission has been granted to a prisoner, his sentence has been executed and he is entitled to be discharged and set at liberty, subject, however, to the cancellation for misconduct” (p. 231). When discussing a regulation that denied the granting of remission to those unable to perform labour, the Commission described the effect as follows: “. . . a prisoner who is ill, although of exemplary conduct, serves a longer sentence than a prisoner in good health” (p. 233).
[70] Recognizing the significant liberty interests at stake with loss of remission, the Swackhamer Report recommended that it be one of the few punishments, along with disciplinary segregation, that would be subject to a right of appeal if imposed (p. 55). Moreover, in its 1977 Report to Parliament, the Sub-Committee on the Penitentiary System in Canada (part of the Standing Committee on Justice and Legal Affairs), when discussing the difficulties inmates faced when computing the length of their sentence, wrote that sentence length was “modified by the statutory formulas for computing statutory remission and earned remission, both of which affect the time spent in prison” (para. 462 (emphasis added)). In exploring other incentives for good behaviour, the Sub-Committee suggested that “[i]t should even be possible to grant extra ‘good time’, or earned remission, to such inmates, so that they could, quite literally, work their way out of prison” (para. 529 (emphasis added)).
[71] The 1987 Working Paper No. 5 of the Correctional Law Review described loss of remission as “clearly a very serious disciplinary measure, as it results in more time spent incarcerated” (p. 209). It also observed that court intervention in inmate disciplinary measures was partially driven by the use of loss of earned remission as a disciplinary sanction, since it “can affect the amount of time an inmate will spend imprisoned” (p. 197).
[72] The effect of loss of earned remission was also recognized by the Honourable D. F. Huyghebaert, Minister of Corrections, Public Safety and Policing, at second reading of the bill he introduced that would ultimately become the Act: “Losing remission means the inmate will spend more time in prison, therefore it is particularly important that we provide an opportunity for independent review of those decisions” (Legislative Assembly of Saskatchewan, Debates and Proceedings (Hansard), vol. 54, No. 6A, 1st Sess., 27th Leg., December 13, 2011, at p. 177).
[73] The current federal legislation governing earned remission is explicit about its effect. Section 6(5) of the Prisons and Reformatories Act states that “[w]here remission is credited against a sentence being served by a prisoner, . . . the prisoner is entitled to be released from imprisonment before the expiration of the sentence.”
[74] This historical overview reveals that the severity of loss of remission as a punishment has been recognized by experts and legislators alike. This is so because this punishment is functionally equivalent to extending an inmate’s sentence of incarceration. For an inmate subject to this sanction, additional days of imprisonment have been imposed.
(iii) Summary
[75] In sum, these sources all point to the conclusion that disciplinary segregation and loss of earned remission are forms of imprisonment. Disciplinary segregation is a distinct form of imprisonment because it significantly curtails an inmate’s residual freedom of movement and further limits their access to human interaction. Loss of earned remission is also a sanction of imprisonment, since it has the effect of extending an inmate’s period of incarceration.
[76] Accordingly, both disciplinary segregation and loss of earned remission pass Wigglesworth’s true penal consequence test. Because they are available forms of punishment for the commission of a major disciplinary offence under s. 77(1) of the Act, s. 11 of the Charter is engaged by those offences. I leave for another day the issue of whether s. 11 of the Charter is engaged if an inmate in Saskatchewan commits a minor disciplinary offence.
[77] Finally, I would note that this holding does not mean that s. 11 necessarily applies anytime a person faces a deprivation of liberty by the state as severe as that resulting from a sentence of imprisonment. Section 11 applies only when a person is “charged with an offence” that carries the risk that such consequences will be imposed. This mitigates any concern that, if a functional understanding of imprisonment is embraced for the purposes of the Wigglesworth true penal consequence test, s. 11 will become too broad in scope and will apply to all proceedings or circumstances involving severe deprivations of liberty by the state.
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[96] In this case, there is an obvious Charter-compliant alternative, which is to use the standard of proof beyond a reasonable doubt. This heightened standard of proof has been used in federal penitentiaries’ inmate disciplinary proceedings for decades and is now required by s. 43(3) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (see also Martineau v. Matsqui Institution Inmate Disciplinary Board, 1977 CanLII 4 (SCC), [1978] 1 S.C.R. 118, at p. 128). The AGS has presented no evidence to suggest that this standard has undermined the federal government’s capacity to administer prison discipline in an expeditious manner. In fact, s. 28 of the Corrections and Conditional Release Regulations, SOR/92-620, requires inmate disciplinary proceedings to take place “as soon as practicable” and, according to Commissioner’s Directive 580: Discipline of Inmates (June 28, 2021 (online)), these proceedings “will normally take place within 10 working days of laying of the charge” (s. 30). This suggests that inmate discipline in federal penitentiaries has not become unduly burdened by the use of a standard of proof beyond a reasonable doubt. . 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.
The court considered the Charter s.11 ['Proceedings in criminal and penal matters'] category of provisions [running from 11(a) to 11(i)] - here in the context of their application to prison disciplinary offences:(1) Scope of Section 11
[27] Section 11 of the Charter enumerates a series of rights possessed by “[a]ny person charged with an offence”. In Wigglesworth, this Court developed two tests for determining which “offences” will trigger the protections of s. 11. First, s. 11 can be invoked when the proceedings at issue are “criminal in nature” (p. 559). Proceedings of this kind are “intended to promote public order and welfare within a public sphere of activity” and stand in contrast to “private, domestic or disciplinary matters which are regulatory, protective or corrective” (p. 560). Second, s. 11 can be invoked when the proceedings may lead to the imposition of “true penal consequences” (p. 561). Such consequences include “imprisonment” or a “fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than for the maintenance of internal discipline” (ibid.).
[28] The key distinction between the two Wigglesworth tests was articulated in Guindon. In that case, this Court emphasized that “[t]he criminal in nature test focuses on the process while the [true] penal consequences test focuses on its potential impact on the person subject to the proceeding” (para. 50).
[29] Under the criminal in nature test, the focus of the inquiry is not on the underlying acts that gave rise to the proceedings, but is instead on the purpose and features of the proceedings themselves (Martineau v. M.N.R., 2004 SCC 81, [2004] 3 S.C.R. 737, at paras. 24 and 28-32; Guindon, at para. 45). The presence of analogues to the following features of a criminal trial may suggest that the proceedings at issue are criminal in nature: a charge, an information, an arrest, a summons, and a subsequent criminal record (Martineau, at para. 45; Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250, at para. 43). Proceedings may be criminal in nature even in circumstances where they have both a public accountability function and a private, disciplinary one (see R. v. Généreux, 1992 CanLII 117 (SCC), [1992] 1 S.C.R. 259, at p. 281). The purpose of the penalties may also inform the criminal in nature test, but its consideration is often reserved for the true penal consequence test to avoid “unnecessary repetition” (Guindon, at para. 52; see also para. 46).
[30] Importantly for our purposes, the true penal consequence test is “always” satisfied when there is the possibility of imprisonment (Guindon, at para. 76). Whether other sanctions, such as fines or monetary penalties, are true penal consequences depends on if they are punitive “in purpose or effect” (ibid.). A punitive purpose may be discerned if the sanction is determined by the principles of criminal sentencing rather than by regulatory considerations (ibid.; Martineau, at para. 62). A sanction’s effects may be considered punitive once they are “assessed relative to the conduct in question and the regulatory objective” at issue (Goodwin, at para. 46). Where the effects of a sanction are “out of proportion” to what is required to achieve the regulatory purpose, the sanction will likely constitute a true penal consequence (Guindon, at para. 77).
[31] As I discuss below, the key question in this case is whether disciplinary segregation and loss of earned remission constitute forms of “imprisonment” under the true penal consequence test. When imprisonment is understood in a functional rather than a formalistic manner, this question must be answered in the affirmative. At paras 32-39 and 48 the court explains their reconsidering the stare decisis status of R. v. Shubley (SCC, 1990), continuing:[40] At the core of Shubley’s interpretation of “imprisonment” is a formalistic adherence to the criminal law’s distinction between the sentence of imprisonment imposed on a person and the conditions of imprisonment, a distinction that has been attenuated by subsequent Charter jurisprudence (see L. Kerr, “Contesting Expertise in Prison Law” (2014), 60 McGill L.J. 43, at pp. 62-63). The conditions of imprisonment have traditionally been understood as falling within the purview of correctional institutions, not courts (see R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41, at para. 18). This abstentionist approach to the conditions of imprisonment emerged in part from the common law’s historical view that a person who had been convicted of an offence and sentenced to prison was “devoid of rights” (May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 23).
[41] However, over time, Canadian courts came to recognize that “a person confined to prison retains all of his civil rights, other than those expressly or impliedly taken from him by law” (Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at p. 839). This evolution has gradually led to a recognition that, where an inmate’s conditions of imprisonment affect the underlying interests that certain Charter rights seek to protect, courts may depart from the formalistic distinction between the sentence and conditions of imprisonment and intervene to give effect to the Charter’s purpose. While the importance of departing from this distinction was recognized in Charter jurisprudence prior to Shubley, this approach gained momentum in subsequent case law from this Court.
[42] For example, s. 10(c) of the Charter guarantees everyone who is detained the right “to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful”. In the foundational case of R. v. Miller, 1985 CanLII 22 (SCC), [1985] 2 S.C.R. 613, this Court was asked to decide whether habeas corpus was available to challenge the validity of an inmate’s placement in a special handling unit, described as a “particularly restrictive form of segregated detention” (p. 617). Given the traditional distinction between the sentence and conditions of imprisonment, there was uncertainty over whether a writ of habeas corpus was available to challenge an individual’s detention only if release from that detention would restore their “complete liberty” (p. 634). In rejecting this narrow approach, Le Dain J. recognized that the writ needed to be adapted to reflect the “modern realities of confinement in a prison setting” and the importance of “challenging deprivations of liberty” (p. 641). Accordingly, he held that habeas corpus should lie “to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution” (ibid.). This reasoning was applied in the companion case of Morin v. National Special Handling Unit Review Committee, 1985 CanLII 24 (SCC), [1985] 2 S.C.R. 662, and to other circumstances of administrative segregation in the companion case of Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643.
[43] This trilogy of cases made it clear that habeas corpus can “free inmates from a ‘prison within a prison’” (May, at para. 27). It also laid the groundwork for Dumas v. Leclerc Institute, 1986 CanLII 38 (SCC), [1986] 2 S.C.R. 459, which clarified that habeas corpus is available to challenge three different deprivations of liberty: “. . . the initial deprivation of liberty, a substantial change in conditions amounting to a further deprivation of liberty, and a continuation of the deprivation of liberty” (p. 464). Following Shubley, this Court continued to embrace Dumas’s expansive approach to habeas corpus with the understanding that it is not “a static, narrow, formalistic remedy” and that it must evolve to achieve its purpose of preventing wrongful restraints on liberty (May, at para. 21, quoting Jones v. Cunningham, 371 U.S. 236 (1962), at p. 243; see also Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, [2019] 2 S.C.R. 467, at para. 19).
[44] This evolution in habeas corpus jurisprudence has, subsequent to Shubley, influenced the scope of the liberty interest protected by s. 7 of the Charter. For instance, in Cunningham v. Canada, 1993 CanLII 139 (SCC), [1993] 2 S.C.R. 143, this Court considered whether a retrospective change to the parole system violated s. 7. Relying on the reasoning in Dumas, this Court confirmed that an offender has an expectation of liberty based on the parole system at the time of sentencing and that a “substantial change” that thwarts this expectation can constitute a deprivation of liberty under s. 7 (p. 151; see also p. 150). In doing so, this Court explicitly rejected the formalistic argument that, once an inmate is incarcerated, there can be “no further impeachment of his liberty interest” (p. 148). This argument “oversimplifie[d] the concept of liberty” by seeking to preserve a rigid distinction between the sentence and conditions of imprisonment (ibid.).
[45] Changes to the conditions of imprisonment have also attracted constitutional scrutiny under s. 11(h) of the Charter. In Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, this Court held that some retrospective changes to the conditions of imprisonment can constitute a “punishment” in violation of s. 11(h)’s guarantee against double jeopardy, depending on the degree to which the changes thwart an inmate’s “settled expectation of liberty” (para. 60). In making this holding, the Court expanded the test for “punishment”, which had previously been limited to the “arsenal of sanctions” that may be imposed during the criminal sentencing process (para. 50, quoting R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at paras. 62 and 65). It did so on the basis that, “from a functional rather than a formalistic perspective, the harshness of punishment has been increased” when there has been a substantial increase in the risk of additional incarceration as a result of retrospective changes to the conditions of imprisonment (para. 52; see also para. 63).
[46] Whaling’s embrace of a liberal and purposive interpretation of the Charter subsequently prompted this Court to reformulate the test for “punishment” under s. 11(h) and (i) “to carve out a clearer and more meaningful role for the consideration of the impact of a sanction” (R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 41; see also paras. 36-40).
[47] A common thread running through these cases is that, when interpreting the scope of different Charter rights, including s. 11 rights, this Court has rejected formalistic interpretations that seek to preserve an inflexible distinction between the sentence and conditions of imprisonment. Instead, this Court has adopted a purposive method of constitutional interpretation that gives effective protection to the underlying interests that the Charter right at issue is intended to secure.
[48] Since the release of Shubley, this Court has never reaffirmed the idea that “imprisonment” under the true penal consequence test is limited to a formal sentence of imprisonment (see, e.g., Martineau, at para. 57; Guindon, at para. 76). In my view, this is because Shubley’s application of the true penal consequence test no longer fits within the broader landscape of this Court’s jurisprudence. It does not consider how the concept of imprisonment, when understood functionally, is broad enough to encompass both substantial erosions to an inmate’s residual liberties (i.e., disciplinary segregation) and extensions to an inmate’s period of incarceration (i.e., loss of earned remission). It is now necessary to depart from the formalistic distinction between the sentence and conditions of imprisonment to ensure that s. 11’s fundamental purpose of safeguarding liberty is robustly protected. For this reason, Shubley’s holding on the true penal consequence test should no longer be considered binding.
[49] In reaffirming this Court’s commitment to purposive constitutional interpretation when interpreting the scope of s. 11, I emphasize that “it is important not to overshoot the actual purpose of the right or freedom in question” (Big M Drug Mart Ltd., at p. 344). Wigglesworth exemplifies how a provision’s purpose can perform this constraining function in constitutional interpretation, and it remains good law. In that case, the Court adopted a “somewhat narrow definition of the opening words of s. 11” to ensure that the substantive protections offered by s. 11 rights would not vary according to the type of proceeding at issue (p. 558). Such variation risked creating a lack of predictability and clarity in the development of s. 11 jurisprudence, which would undermine s. 11’s objective of ensuring strong procedural protections for those who are charged with a criminal offence or who otherwise “may well suffer a deprivation of liberty” as a result of the prosecutorial power of the state (ibid.). For that reason, s. 11 was limited to the “most serious offences known to our law, i.e., criminal and penal matters” (ibid. (emphasis added)).
[50] As this Court recognized in K.R.J., the true penal consequence test from Wigglesworth sets an “indisputably high bar” in order to give effect to s. 11’s purpose by limiting the number of offences outside the criminal context that trigger the most robust procedural protections in our legal system (para. 38). However, in setting this high bar, Wigglesworth did not suggest that the sanctions recognized as true penal consequences, such as imprisonment, must be understood formalistically. A formalistic interpretation of these sanctions erodes the acknowledgment in Wigglesworth that, where non-criminal offences may lead to the imposition of truly punitive consequences, s. 11 should apply to fulfil its liberty-protecting purpose. Adopting a formalistic understanding of sanctions recognized as true penal consequences risks undermining this purpose by allowing the label placed on such sanctions, rather than their impact on individual liberty, to govern the determination of whether s. 11 applies. At paras 52-77 the court explains "why major disciplinary offences in Saskatchewan may lead to the imposition of punishments that constitute a form of imprisonment, and therefore pass Wigglesworth’s true penal consequence test".
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