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Review - Fresh Law - First Time at Supreme Court. 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 allows a Charter 'fresh law' argument, this for the first time at the Supreme Court level:A. Section 11(d) Should Be Considered
[21] JHS acknowledges that the question of whether s. 68 of the Regulations infringes s. 11(d) is a new constitutional issue raised on appeal.
[22] In Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, this Court reiterated that it can exercise its discretion “to consider a new issue of law on the appeal where it is able to do so without procedural prejudice to the opposing party and where the refusal to do so would risk an injustice” (para. 22, quoting Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678, at para. 33). The burden is on JHS to persuade this Court to exercise its discretion to consider the new issue in light of all of the circumstances (Guindon, para. 23). Because JHS raises a new constitutional question, “[t]he Court must be sure that no attorney general has been denied the opportunity to address [it]” (ibid.). Consideration of a new issue on appeal is exceptional, and thus this Court’s discretion to hear such an issue should not be exercised routinely or lightly.
[23] In my view, this is one of the exceptional cases where it is appropriate for this Court to exercise its discretion to consider the new issue.
[24] On the question of procedural prejudice, there is no indication that the AGS, or any other attorney general, would be disadvantaged if the Court were to consider the new issue. JHS filed a notice of constitutional question containing the new issue on February 9, 2024. The intervening attorneys general have raised no concerns about the consideration of the new issue and have largely focused their submissions on addressing this issue specifically. The AGS argues that it has not had an opportunity to file evidence that is fully responsive to the arguments on s. 11(d) and s. 1 (R.F., at paras. 109 and 164). However, this argument is unpersuasive because the question of what s. 7 may require in the inmate disciplinary context engages considerations similar to those engaged by the question of whether s. 11 applies. Both inquiries concern the nature of the proceedings at issue and the degree to which an individual’s liberty is in jeopardy. Moreover, the possibility of having to justify a s. 7 infringement under s. 1 was at issue in the courts below.
[25] Failing to consider the new issue would also create the potential for injustice. There is a risk that unnecessary expense and delay would result from not considering the question of whether s. 11(d) is infringed and the related question of whether Shubley remains good law. As discussed, Shubley’s analysis of whether s. 11 applies in the inmate disciplinary context is relevant to the question of whether s. 68 of the Regulations infringes s. 7 of the Charter. It would therefore be undesirable for this Court to consider s. 7 without first addressing the status of Shubley. This risk of unnecessary expense and delay means that there is a strong public interest in deciding the new issue on appeal. As a result, the question of whether s. 11(d) is infringed should be answered first.
[26] I note that, in coming to this conclusion, I am not establishing a principle of broader application for when accused persons raise claims under both ss. 7 and 11(d) (see R. v. J.J., 2022 SCC 28, at para. 115). The methodology for assessing alleged Charter breaches is highly context- and fact-specific (ibid.; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at para. 37). It remains true that ss. 7 and 11(d) are “inextricably intertwined” (R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 603).
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