R. v. Shubley, [1990] 1 S.C.R. 3

Frank Manny Shubley Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. shubley

File No.: 20815.

1989: October 6; 1990: January 18.

Present: Wilson, Sopinka, Gonthier, Cory and McLachlin JJ.

on appeal from the court of appeal for ontario

Constitutional law -- Double jeopardy -- Inmate disciplined for incident occurring within penal institution -- Inmate later charged with criminal offence ‑‑ Whether or not trial for criminal offence in violation of s. 11(h) of Charter -- Canadian Charter of Rights and Freedoms, s. 11(h) -- Regulation 649, R.R.O. 1980, ss. 28, 29(1), (2), 30, 31(1), (2).

Appellant, an inmate, allegedly assaulted another inmate. The superintendent of the detention centre conducted an informal hearing to ascertain the facts pertaining to appellant's alleged misconduct and ordered him placed in solitary confinement for five days with a restricted diet. The victim of the alleged assault later laid a complaint which resulted in the appellant's being charged with assault causing bodily harm contrary to s. 245.1(1)(b) of the Criminal Code. After arraignment, counsel moved to stay the proceedings on the indictment, on the ground that a trial would violate appellant's right under s. 11(h) of the Charter, not to be tried and punished twice for the same offence. The trial judge accepted this submission. The Court of Appeal, relying on the intervening decision of this court in R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541, reversed this decision, ruling that prosecution under the Criminal Code did not violate s. 11(h) of the Charter. At issue here were: (1) whether there had been a violation of s. 11(h) of the Charter (which depended on whether or not the prison disciplinary proceeding was a final finding of guilty and punishment for an "offence"); and, (2) whether Regulation 649 precluded proceeding with the prosecution under the Criminal Code.

Held (Wilson and Cory JJ. dissenting): The appeal should be dismissed.

Per Sopinka, Gonthier and McLachlin JJ.: An offence falls under s. 11(h) of the Charter if the proceedings are, by their very nature, criminal proceedings, or if the punishment invoked involves the imposition of true penal consequences.

The question of whether proceedings are criminal in nature is concerned not with the nature of the act which gave rise to the proceedings but rather with the nature of the proceedings themselves. Section 11(h) provides protection against duplication in proceedings of a criminal nature. It does not preclude two different proceedings, one criminal and the other not criminal, flowing from the same act. The appellant consequently is answerable to the State for his crime, to the victim for injury caused and to the prison officials for breach of discipline.

The prison disciplinary proceeding was not, by its very nature, criminal. Its purpose was to maintain order in the prison, not to mete out criminal punishment. It lacked the essential characteristics of a proceeding on a public, criminal offence. If appellant had been called upon twice to answer to the State for his crime, s. 11(h) would apply. Section 11(h) does not operate so as to preclude his being answerable to prison officials for a breach of discipline as well as to the State for his crime.

The disciplinary measures taken did not involve the imposition of true penal consequences. A true penal consequence which would attract the application of s. 11 is 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 to the maintenance of internal discipline within the limited sphere of activity. The measures taken here were confined to the manner in which the inmate serves his time and involved neither punitive fines nor a sentence of imprisonment. They were entirely commensurate with the goal of fostering internal prison discipline and were not of a magnitude or consequence that would be expected for redressing wrongs done to society at large.

Section 29 offered no basis upon which a court could stay a criminal prosecution where disciplinary proceedings had taken place. Firstly, the plain words of the section did not support such an interpretation. The section provided that internal disciplinary proceedings had to be discontinued where external criminal proceedings had commenced, but omitted reference to the converse situation -- the staying of a criminal prosecution where internal proceedings were completed. Secondly, s. 29, even if it could be interpreted as precluding prosecution where disciplinary proceedings had taken place, would be in breach of the constitutional division of powers and accordingly inoperative.

Neither s. 11 of the Charter nor s. 29 of the Regulations, whether read separately or together, supported a stay of the criminal prosecution. The question of whether the Province viewed the disciplinary proceeding as criminal was not relevant to an inquiry under s. 11. The only question is whether the disciplinary proceedings met the test for double jeopardy laid down by this court in R. v. Wigglesworth.

Per Wilson and Cory JJ. (dissenting): An offence comes within the purview of s. 11(h) if either the proceedings are, by their very nature, criminal proceedings or if the punishment invoked involves the imposition of true penal consequences. A true penal consequence occurs if imprisonment or a fine is imposed which, by its magnitude, would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity. The situation here came within the second branch of the test because the punishment which could be imposed for the offence carried with it the possibility of very serious penal consequences. Solitary confinement must be treated as a distinct form of punishment and its imposition within a prison constitutes a true penal consequence. The loss of earned remission or of the ability to earn remission is likewise a penal consequence attaching to a serious breach of discipline.

If the misconduct in the penal institution involves a serious offence for which punishment with penal consequences may be imposed under s. 31 and it also constitutes a criminal offence for which the inmate can be charged, then the decision must be made whether to proceed by way of criminal proceedings or by way of a disciplinary hearing leading to the possible imposition of a punishment with penal consequences. Section 11(h) precludes the inmate from being subjected to both. Indeed, s. 29 of Regulation 649 reflected the constitution in this regard by making it clear that these were alternative and not cumulative responses to the inmate's misconduct.

Cases Cited

By McLachlin J.

Applied: R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541; considered: R. v. Mingo (1982), 1982 376 (BC SC), 2 C.C.C. (3d) 23; referred to: Re Nash and The Queen (1982), 1982 3876 (NL PC), 70 C.C.C. (2d) 490; Re Lazarenko and Law Society of Alberta (1983), 1983 1131 (AB KB), 4 D.L.R. (4th) 389; Re Peltari and Director of the Lower Mainland Regional Correctional Centre (1984), 1984 467 (BC SC), 15 C.C.C. (3d) 223; Knockaert v. Commissioner of Corrections, 1986 6815 (FC), [1986] 2 F.C. 361; State v. Killebrew, 340 N.W.2d 470 (Wis. 1983); Kerns v. Parratt, 672 F.2d 690 (8th Cir. 1982); People v. Lewis, 386 N.E.2d 910 (Ill. 1979); State v. Procter, 367 N.E.2d 908 (Ohio 1977); State v. Keller, 369 N.E.2d 798 (Ohio 1976); In Re Lamb, 296 N.E.2d 280 (Ohio 1973); R. v. Hull Prison Board of Visitors, ex parte St. Germain, [1979] 1 All E.R. 701; Attorney General of Quebec v. Lechasseur, 1981 205 (SCC), [1981] 2 S.C.R. 253.

By Cory J. (dissenting)

R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 11(h).

Criminal Code, R.S.C. 1970, c. C-34, s. 245.1(1)(b), 455.

Ministry of Correctional Services Act, R.S.O. 1980, c. 275.

Regulation 649, R.R.O. 1980, ss. 28, 29(1), (2), 30, 31(1), (2).

Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9.

United States Constitution, Fifth Amendment.

Youth Protection Act, S.Q. 1977, c. 20.

Authors Cited

Parizeau, Alice and Denis Szabo. The Canadian Criminal-Justice System. Translated, revised and edited by Dorothy R. Crelinsten. Toronto: Lexington Books, 1977.

Stuart, Don. Annotation (R. v. Wigglesworth) (1984), 1984 2275 (SK CA), 38 C.R. (3d) 388.

APPEAL from a judgment of the Ontario Court of Appeal (1988), 1988 4629 (ON CA), 63 O.R. (2d) 161, 25 O.A.C. 66, 39 C.C.C. (3d) 481, 62 C.R. (3d) 353, allowing an appeal from a judgment of Locke Dist. Ct. J. staying the proceedings on an indictment. Appeal dismissed, Wilson and Cory JJ. dissenting.

Dragi Zekavica, for the appellant.

Jocelyn van Overbeek and James M. Chalke, for the respondent.

//Cory J.//

The reasons of Wilson and Cory JJ. were delivered by

CORY J. (dissenting) -- I have read with interest the reasons expressed with great clarity by my colleague Justice McLachlin. Unfortunately I have come to a different conclusion.

In the eyes of the superintendent of the Toronto West Detention Centre the appellant committed the indictable offence of assault occasioning actual bodily harm. The superintendent conducted a hearing, found the appellant guilty of the offence and had him placed in solitary confinement for five days with a restricted diet. The question to be resolved is whether what took place within the Toronto West Detention Centre, the assault, the hearing and the resulting consequences, constitute an "offence" so as to invoke the protection against double punishment provided for by s. 11(h) of the Canadian Charter of Rights and Freedoms. The resolution of that issue will depend upon whether that occurrence comes within the definition of a s. 11(h) "offence" which was articulated in R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541.

I. The Wigglesworth Test

Section 11(h) of the Charter reads as follows:

11. Any person charged with an offence has the right

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; . . .

In R. v. Wigglesworth, supra, Wilson J. set forth the basis for determining whether an occurrence merited the protection provided by s. 11(h) of the Charter. She held that an offence comes within the purview of s. 11(h) if either the proceedings are, by their very nature, criminal proceedings or if the punishment invoked involves the imposition of true penal consequences. In my view the situation which evolved in the case at bar comes within the second branch of the test.

II. The Penal Consequences

The facts in this case appear to meet the second branch of the test expounded in R. v. Wigglesworth, supra, because the punishment which could be imposed for the offence carried with it the possibility of very serious penal consequences. A true penal consequence was defined by Wilson J. in R. v. Wigglesworth, supra, at p. 561 in these terms:

In my opinion, a true penal consequence which would attract the application of s. 11 is 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 to the maintenance of internal discipline within the limited sphere of activity.

What was the nature of the punishment that could be meted out in this case? Section 31 of Regulation 649, R.R.O. 1980, under the Ministry of Correctional Services Act, R.S.O. 1980, c. 275, provides:

31.--(1) Where the Superintendent determines that an inmate has committed a misconduct, the Superintendent may impose one or more of the following penalties:

1.Loss of all or some privileges for a period not greater than 120 days.

2.A change of program or work activity.

3.A change of classification relating to the incentive allowance.

4.A change of security status.

5.A reprimand.

6.Revocation of a temporary absence permit.

(2) Where the Superintendent determines that an inmate has committed a misconduct of a serious nature, the Superintendent may impose, in addition to any of the penalties imposed in subsection (1), one of the following penalties:

1.Close confinement for a definite period not greater than thirty days on a regular diet.

2.Close confinement for an indefinite period not greater than thirty days on a regular diet.

3.Close confinement for an indefinite period not greater than ten days on a special diet that fulfills basic nutritional requirements.

4.Forfeiture of a portion or all of the remission that stands to the inmate's credit but no such forfeiture shall exceed fifteen days without the Minister's approval.

5.Subject to the approval of the Minister, suspension of the eligibility of an inmate to earn remission for a period of two months.

If the punishment imposed falls within subs. (2), very real and significant penal consequences may flow from the offence. They come within the definition enunciated in R. v. Wigglesworth, supra.

Prisons within prisons have been known to man as long as prisons have existed. As soon as castles had dungeons there were special locations within those dungeons for torture and for solitary confinement. The grievous effects of solitary confinement have been almost instinctively appreciated since imprisonment was devised as a means of punishment. Prisons within prisons exist today, exemplified by solitary confinement.

The complete isolation of an inmate from others is quite different from confinement to a penal institution where some form of contact with people both inside and outside is the norm. Close or solitary confinement is a severe form of punishment. The vast majority of the human race is gregarious in nature. To be deprived of human companionship for a period of up to thirty days can and must have very serious consequences. Literature of yesteryear and today is replete with the deterrent effects of such punishment.

Solitary confinement certainly cannot be considered as a reward for good conduct. It is, in effect, an additional violation of whatever residual liberties an inmate may retain in the prison context and should only be used where it is justified. To say otherwise would mean that once convicted an inmate has forfeited all rights and could no longer question the validity of any supplementary form of punishment. If the inmate can never question the validity of supplementary punishment, then any form of punishment could be justified on the basis that good treatment is only a privilege. Because of the tremendous psychological impact of long periods of solitary confinement, it would be unacceptable in our society to condemn a person to close or solitary confinement for the entire period of a significant term of imprisonment. For example, the imposition of a year or more of solitary confinement could probably not withstand a Charter challenge that it constituted cruel and unusual punishment. I would conclude, therefore, that solitary confinement must be treated as a distinct form of punishment and that its imposition within a prison constitutes a true penal consequence.

It may be that solitary confinement is required as an essential disciplinary tool for dealing with more serious breaches of discipline within the institution which may not themselves give rise to criminal charges. Indeed, it is clear from s. 31 that punishment by solitary confinement is confined to acts of misconduct of a serious nature. The penalties spelled out in s. 31(2) may be in addition to those contained in s. 31(1). The section, I believe, makes it perfectly clear that in the eyes of the legislature these are the penal consequences to be attached to breaches of discipline by inmates graded in accordance with the seriousness of the breach. The legislature itself described them as "penalties".

In my view, the loss of earned remission or of the ability to earn remission which is also contemplated as a possible penalty under s. 31(2) is likewise a penal consequence attaching to a serious breach of discipline. While the opportunity to earn remission might well be a privilege, once it has been earned it should in the ordinary course of events be viewed as an acquired right. Although it may be technically correct to say that earned remission does not reduce the length of a sentence, its true penal effect is to do precisely that. To every inmate the significant portion of the sentence is the time served within the prison. Imprisonment means the denial of freedom of movement and the segregation or isolation of an inmate from society. That being so, then the real termination of a prison sentence, certainly from the perspective of the inmate, is the moment when he or she is permitted to reintegrate into society. It is that freedom of movement and the ability to interact with others which is so very important to every individual. From the point of view of the inmate, any shortening of the period of confinement through earned remission has the same effect as a reduction in his sentence.

The vital distinction to be drawn between the examples of the offending doctor and the police constable cited by my colleague in the case at bar is that s. 11 of the Charter precludes the imposition of two different sets of penal consequences for the same offence. Professor Stuart when he was commenting on the decision of Cameron J.A. in the Court of Appeal's decision in R. v. Wigglesworth (1984), 1984 2275 (SK CA), 38 C.R. (3d) 388, at p. 389 stated:

Section 11(h) provides protection only against double punishment. It might well be that some job-related disciplinary measures such as loss of work privileges, and even loss of qualification or job, should escape the net of s. 11(h). It would be strange if the imposition of such disciplinary measures could in effect exempt the accused from standing trial in a criminal court. Equally, a criminal prosecution should not insulate an accused from professional discipline. However, other punitive forms of disciplinary measures, such as fines or imprisonment, are indistinguishable from criminal punishment and should surely fall within the protection of s. 11(h).

Thus while the doctor and the police constable may be punished in both a retributive and a disciplinary fashion, they may not be punished twice in a retributive fashion for the same offence.

Stern disciplinary measures may on occasion be necessary. However, if they are to include a loss of earned remission or the ability to earn it, then the disciplinary punishment has penal consequences as that term is defined in R. v. Wigglesworth, supra. If the misconduct in the penal institution involves a serious offence for which punishment with penal consequences may under s. 31 be imposed and it also constitutes a criminal offence for which the inmate can be charged, then the decision must be made whether to proceed by way of criminal proceedings or by way of a disciplinary hearing leading to the possible imposition of a punishment with penal consequences. Section 11(h) precludes the inmate from being subjected to both. Indeed, s. 39 of Regulation 649 reflects the constitution in this regard by making it clear that these are alternative and not cumulative responses to the inmate's misconduct. The Regulation reads:

29.--(1) Where an inmate is alleged to have committed a misconduct that also constitutes an indictable offence under an Act of Parliament, the Superintendent shall consult with the local Crown Attorney to determine whether the case should be dealt with by the Crown Attorney under the criminal law or by the Superintendent as a matter of internal discipline.

(2) Where a prosecution is commenced against an inmate by the Crown Attorney, all internal disciplinary action against the inmate relating to the alleged misconduct shall be discontinued.

By its wording the Regulation demonstrates that the legislators were aware that an inmate could well be tried and punished twice for the same offence. To try and make certain that this did not happen it provided that in cases of misconduct which could constitute an indictable offence, the superintendent was mandatorily required to consult with the local Crown Attorney to determine whether the case should be dealt with under the criminal law or by the superintendent as a matter of internal discipline. In addition, by its passage of the Regulation the legislature showed that it was aware of the particularly vulnerable position of inmates and of the need to treat them fairly in order to assist their rehabilitation.

Since the penalty imposed in the case at bar was a true penal consequence as that term is defined in R. v. Wigglesworth, supra, the offence comes within s. 11(h) of the Charter.

III. Disposition in the Result

In the result, I would allow the appeal, set aside the order of the Court of Appeal and restore the order of the trial judge staying the proceedings.

The judgment of Sopinka, Gonthier and McLachlin JJ. was delivered by

//McLachlin J.//

MCLACHLIN J. --

A. The Background

On April 18, 1985, the appellant Shubley, an inmate at the Metropolitan Toronto West Detention Centre, allegedly assaulted another inmate. The next day the appellant was brought before the superintendent of the detention centre. The superintendent heard the facts pertaining to the misconduct alleged against the appellant, found that it had occurred, and ordered him placed in solitary confinement for a period of five days with a restricted diet.

On June 18, 1986, several months later, the inmate whom Shubley had assaulted laid a complaint as a result of which the appellant was charged with assault causing bodily harm contrary to s. 245.1(1)(b) of the Criminal Code, R.S.C. 1970, c. C-34, as amended.

The appellant appeared for his trial on March 26, 1987. After arraignment his counsel moved to stay the proceedings on the indictment, on the ground that a trial would violate his right under s. 11(h) of the Canadian Charter of Rights and Freedoms not to be tried and punished twice for the same offence. The trial judge accepted this submission. The Court of Appeal, relying on the intervening decision of this Court in R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541, reversed this decision, ruling that prosecution under the Criminal Code did not violate s. 11(h) of the Charter. Shubley appeals to this court from that ruling.

B. The Statutory Provisions

The appellant relies on s. 11(h) of the Charter, which provides:

11. Any person charged with an offence has the right

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; . . .

The other provision relied on by the appellant is s. 29 of Regulation 649, R.R.O. 1980, under the Ministry of Correctional Services Act, R.S.O. 1980, c. 275:

29.--(1) Where an inmate is alleged to have committed a misconduct that also constitutes an indictable offence under an Act of Parliament, the Superintendent shall consult with the local Crown Attorney to determine whether the case should be dealt with by the Crown Attorney under the criminal law or by the Superintendent as a matter of internal discipline.

(2) Where a prosecution is commenced against an inmate by the Crown Attorney, all internal disciplinary action against the inmate relating to the alleged misconduct shall be discontinued.

C. The Issues

The appeal raises two issues.

The first is whether there has been a violation of s. 11(h) of the Charter. This, in turn, depends on whether Shubley, by reason of the prison disciplinary proceeding, has been "finally found guilty and punished" for an "offence".

The second issue is whether Regulation 649 precludes proceeding with the prosecution under the Criminal Code.

In the event the answer to both these questions is negative, it may be necessary to consider whether s. 11(h) of the Charter and Regulation 649, taken together, preclude proceeding with the criminal charges against Shubley.

D. Discussion

1. Whether Prosecution Violates s. 11(h) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

Section 11(h) of the Charter is directed at preventing the State from making repeated attempts to convict an individual. It forbids the prosecution of an accused twice for the same offence. In order for it to be operative, there must be two proceedings or trials for the same offence. It is clear that the criminal proceedings here in issue constitute a trial for an offence -- the offence of assault causing bodily harm. The question which remains is whether the prison disciplinary proceedings against Shubley constituted a trial for the same offence, as a consequence of which Shubley has already been found guilty and punished.

After the hearing of the appeal in this matter but before judgment, this Court rendered its decision in R. v. Wigglesworth, supra. In that decision, the central question was whether an RCMP officer's conviction for a "major service offence" (an assault) under the Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9, precluded proceedings under the Criminal Code for the same misconduct, on the ground that such proceedings would violate the accused's right under s. 11(h) of the Charter, not to be tried and punished twice for the same offence. The Court held that the criminal proceedings were not barred. Wilson J., writing for the majority, formulated two tests for determining whether prosecution is barred by s. 11: an offence falls under s. 11(h) if the proceedings are, by their very nature, criminal proceedings, or if the punishment invoked involves the imposition of true penal consequences.

The Court of Appeal in this case ((1988), 1988 4629 (ON CA), 63 O.R. (2d) 161) held that under the interpretation of "offence" as defined in R. v. Wigglesworth, the earlier cases relied on by the trial judge and the appellant were no longer relevant. After examining the relevant provisions of the Ministry of Correctional Services Act, the Court of Appeal concluded that neither element of the test in R. v. Wigglesworth was established. The court found that the misconduct process was not of a criminal nature, but rather was focused on the discipline of an inmate, being "implicitly aimed at promoting the orderly regulation and over-all good government of correctional institutions". The court also concluded that the punishment given to the inmate was "mainly the loss or withdrawal of privileges or benefits normally available" and thus did not involve the imposition of true penal consequences. The court held that the inmate had not been convicted of an "offence" and concluded that the trial judge had erred in staying the proceedings.

I am of the view that the Court of Appeal was correct in concluding that on the tests propounded by this court in R. v. Wigglesworth, the continued prosecution of Shubley did not violate s. 11(h) of the Charter.

By way of background, I note that R. v. Wigglesworth must be considered in the context of the jurisprudence which preceded it. The Supreme Court had under consideration two divergent lines of authority on the interpretation of s. 11(h) of the Charter. The first, represented by such cases as Re Nash and The Queen (1982), 1982 3876 (NL PC), 70 C.C.C. (2d) 490 (Nfld. Prov. Ct.), and Re Lazarenko and Law Society of Alberta (1983), 1983 1131 (AB KB), 4 D.L.R. (4th) 389 (Alta. Q.B.), held that "offence" in s. 11(h) should be interpreted broadly as extending to non-criminal prosecutions. For example, in Re Nash and The Queen, supra, Kennedy Prov. Ct. J., when considering the effect of police disciplinary proceedings, held at p. 494 that "The word `offence' is broad enough to apply to any breach or charge whereby an accused can be punished". The first line of authorities includes cases such as Re Peltari and Director of the Lower Mainland Regional Correctional Centre (1984), 1984 467 (BC SC), 15 C.C.C. (3d) 223 (B.C.S.C.), in which "offence" was interpreted broadly enough to include disciplinary offences or misconduct occurring within prison settings.

A narrower interpretation of s. 11(h) had been adopted by Toy J. (as he then was) in R. v. Mingo (1982), 1982 376 (BC SC), 2 C.C.C. (3d) 23 (B.C.S.C.) R. v. Mingo, like this appeal, was concerned with prison discipline proceedings. Mingo, together with certain other inmates, was alleged to have participated in smashing windows and equipment and attempting to start a fire at a federal penitentiary in British Columbia. Mingo was found guilty of several disciplinary offences resulting in 90 days' punitive segregation and loss of 135 days of earned remission. In the meantime, criminal charges were laid against him. At trial, Mingo sought a stay of the criminal charges on the ground that to proceed would violate his right under s. 11(h) of the Charter not to be tried twice. Toy J. denied the application. He rejected the argument that an "inmates offence" or "disciplinary offence" constituted an "offence" under s. 11(h) of the Charter, holding that "offence" under s. 11(h) is confined to proceedings in courts on summary or indictable conviction offences. Prison disciplinary proceedings did not meet this test. Toy J. added, at p. 34:

An examination of the disciplinary offences in s. 39 of the current Penitentiary Service Regulations, C.R.C. 1978, c. 1251, satisfies me that the disciplinary offences and the hopefully rapid disposition of those offences are a necessary adjunct required by the institutional heads to maintain discipline for the benefit not only of staff but other inmates in the institution as well as the offending inmate.

In R. v. Wigglesworth, Wilson J., after reviewing the two lines of authorities on s. 11(h) of the Charter, at p. 554, opted in favour of the narrower view of s. 11(h) adopted in R. v. Mingo:

It is my view that the narrower interpretation of s. 11 favoured by the majority of the authorities referred to above is in fact the proper interpretation of the section. The rights guaranteed by s. 11 of the Charter are available to persons prosecuted by the State for public offences involving punitive sanctions, i.e., criminal, quasi-criminal and regulatory offences, either federally or provincially enacted.

At page 556, quoting from R. v. Mingo, she stated:

I would agree with the conclusion of Toy J. in R. v. Mingo, supra, at p. 36:

In my respectful view, the authors of the new Charter, when they employed the unqualified word "offence" as opposed to "criminal offence", were doing nothing more than providing for the equal protection of Canadian citizens from breaches of their rights under provincial as well as federal laws in so far as public as opposed to private or domestic prohibitions were concerned.

In the result, Wilson J. formulated the test for the application of s. 11(h) to which I earlier referred.

It thus appears that this court in R. v. Wigglesworth accepted the view that internal disciplinary proceedings, including prison disciplinary hearings such as those at issue in R. v. Mingo, might well fall outside the ambit of s. 11(h). Nevertheless, the logic of R. v. Wigglesworth is to proceed not by a category approach, but by application of the general principles there laid down. Thus, one must examine whether the particular proceedings here at issue meet the tests set forth in R. v. Wigglesworth.

Applying the double test set forth in R. v. Wigglesworth, the first question is whether the proceedings in question are, by their very nature, criminal proceedings.

Before considering this question in the context of the proceedings here at issue, I venture a preliminary observation. The question of whether proceedings are criminal in nature is concerned not with the nature of the act which gave rise to the proceedings, but the nature of the proceedings themselves. Section 11(h) provides protection against duplication in proceedings of a criminal nature. It does not preclude two different proceedings, one criminal and the other not criminal, flowing from the same act. As Cameron J.A., of the Saskatchewan Court of Appeal, stated at p. 549 in R. v. Wigglesworth, in a passage cited by Wilson J. in this court's judgment:

A single act may have more than one aspect, and it may give rise to more than one legal consequence. It may, if it constitutes a breach of the duty a person owes to society, amount to a crime, for which the actor must answer to the public. At the same time, the act may, if it involves injury and a breach of one's duty to another, constitute a private cause of action for damages, for which the actor must answer to the person he injured. And that same act may have still another aspect to it: it may also involve a breach of the duties of one's office or calling, in which event the actor must account to his professional peers. For example a doctor who sexually assaults a patient will be liable, at one and the same time, to a criminal conviction at the behest of the state; to a judgment for damages, at the instance of the patient, and to an order of discipline on the motion of the governing council of his profession. Similarly a policeman who assaults a prisoner is answerable to the state for his crime; to the victim for damage he caused; and to the police force for discipline.

Cameron J.A. concluded:

In the light of this I think Constable Wigglesworth's contention must fail since the proceeding before the R.C.M.P. service tribunal was purely disciplinary. It was concerned only with the professional aspect of his conduct: the "offence" of which he was found guilty, a "major service offence", lay in the breach by him of his policeman's duty not to treat his prisoners harshly, cruelly, or with unnecessary violence. He must still answer to society for the criminal aspect of his conduct, or for his "criminal offence".

Applying the words of Cameron J.A. to this case, the appellant as a consequence of the alleged assault is answerable to the State for his crime; to the victim for injury caused; and to the prison officials for breach of discipline. While the act giving rise to the disciplinary proceedings against Shubley may, in one aspect, constitute a criminal act, it does not follow that the disciplinary proceedings themselves were criminal in nature.

Against that background, I return to the test posed by R. v. Wigglesworth. Was the prison disciplinary proceeding to which the appellant was subject, by its very nature, criminal? I conclude it was not. The appellant was not being called to account to society for a crime violating the public interest in the preliminary proceedings. Rather, he was being called to account to the prison officials for breach of his obligation as an inmate of the prison to conduct himself in accordance with prison rules. If he had been called upon twice to answer to the State for his crime, s. 11(h) would apply. But section 11(h) does not operate so as to preclude his being answerable to prison officials for a breach of discipline as well as to the State for his crime.

The internal disciplinary proceedings to which the appellant was subject lack the essential characteristics of a proceeding on a public, criminal offence. Their purpose is not to mete out criminal punishment, but to maintain order in the prison. In keeping with that purpose, the proceedings are conducted informally, swiftly and in private. No courts are involved. They are not, to borrow the words of Wilson J. in R. v. Wigglesworth, at p. 560: "of a public nature, intended to promote public order and welfare within a public sphere of activity." The answer to the first branch of the R. v. Wigglesworth test must be that the prison discipline proceedings are not, by their nature, criminal proceedings. They are internal disciplinary proceedings, even though they arise from the same act as gives rise to criminal proceedings.

I turn then to the second situation in which the application of s. 11(h) of the Charter may apply. Does the punishment involved in internal prison disciplinary proceedings involve the imposition of true penal consequences? One must first examine what constitutes a true penal consequence. Wilson J. provides the answer in R. v. Wigglesworth. After stating that persons charged with private or domestic matters may nevertheless possess s. 11 rights because the proceedings involve the imposition of "true penal consequences", she explains what she means by that term, at p. 561:

In my opinion, a true penal consequence which would attract the application of s. 11 is 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 to the maintenance of internal discipline within the limited sphere of activity. [Emphasis added.]

Wilson J. goes on to comment that a restricted power to impose fines in order to achieve a particular private purpose may not attract the application of s. 11. As for imprisonment, she questions (noting the issue was not argued) whether the imposition of imprisonment could ever be anything but a penal consequence.

In this case, the internal disciplinary proceeding involved neither fines nor imprisonment. The appellant's punishment was close confinement for five days on a special diet that fulfils basic nutritional requirements. Looking more generally at the powers conferred by s. 31 of Regulation 649 on a superintendent who finds that an inmate has committed a misconduct, it may be observed that they are generally confined to matters affecting the conditions under which a prisoner lives. Privileges, such as work activity and temporary absences, may be removed. In more serious cases, close confinement may be ordered and remission standing to the inmate's credit revoked:

Regulation 649, R.R.O. 1980:

31.--(1) Where the Superintendent determines that an inmate has committed a misconduct, the Superintendent may impose one or more of the following penalties:

1.Loss of all or some privileges for a period not greater than 120 days.

2. A change of program or work activity.

3. A change of classification relating to the incentive allowance.

4. A change of security status.

5. A reprimand.

6. Revocation of a temporary absence permit.

(2) Where the Superintendent determines that an inmate has committed a misconduct of a serious nature, the Superintendent may impose, in addition to any of the penalties imposed in subsection (1), one of the following penalties:

1.Close confinement for a definite period not greater than thirty days on a regular diet.

2.Close confinement for a indefinite period not greater than thirty days on a regular diet.

3.Close confinement for an indefinite period not greater than ten days on a special diet that fulfills basic nutritional requirements.

4.Forfeiture of a portion or all of the remission that stands to the inmate's credit but no such forfeiture shall exceed fifteen days without the Minister's approval.

5.Subject to the approval of the Minister, suspension of the eligibility of an inmate to earn remission for a period of two months.

The appellant suggests that the forfeiture or suspension of remission (which did not occur in this case) constitutes imprisonment. This submission is at odds with the legal concept of earned remission. Remission does not shorten a sentence for imprisonment; that can be done only by appeal. Rather, it permits an inmate who has "applied himself industriously" to the prison program, to serve part of his sentence outside the prison. The privilege of remission (it is not a right) is conferred as a matter of prison administration to provide incentives to inmates to rehabilitate themselves and co-operate in the orderly running of the prison. The removal of that privilege for conduct that violates these standards is equally a matter of internal prison discipline. Forfeiture of remission does not constitute the imposition of a sentence of imprisonment by the superintendent, but merely represents the loss of a privilege dependent on good behaviour: see Knockaert v. Commissioner of Corrections, 1986 6815 (FC), [1986] 2 F.C. 361 (C.A.), where it was held, per Hugessen J., (Lacombe J. concurring, Marceau J. dissenting) that cancellation of earned remission does not constitute punishment, but is rather the withholding of a reward. See, also, Parizeau and Szabo, The Canadian Criminal-Justice System, at p. 163, where parole is described as release under supervision until the sentence (which remains in place) expires.

I conclude that the sanctions conferred on the superintendent for prison misconduct do not constitute "true penal consequences" within the R. v. Wigglesworth test. Confined as they are to the manner in which the inmate serves his time, and involving neither punitive fines nor a sentence of imprisonment, they appear to be entirely commensurate with the goal of fostering internal prison discipline and are not of a magnitude or consequence that would be expected for redressing wrongs done to society at large. Certainly the discipline meted to the appellant in this case is not such as to attract the application of s. 11(h).

Having concluded that the disciplinary proceeding to which the appellant was subject is not a proceeding for an offence within s. 11(h) on the principles set out in R. v. Wigglesworth, I add these comments as to the consequences of a contrary conclusion. I share the concern expressed by Wilson J. in R. v. Wigglesworth about an overbroad application of s. 11. I agree with her conclusion (at p. 558) that "it is preferable to restrict s. 11 to the most serious offences known to our law, i.e., criminal and penal matters and to leave other offences' subject to the more flexible criteria of fundamental justice' in s. 7."

The importance of this is illustrated by considering the impact of the application of s. 11 to prison discipline proceedings. Prison discipline proceedings must be expeditious and informal if the crises that inevitably occur in centres of incarceration are to be avoided. To accord to inmates facing such proceedings the constitutional rights which s. 11 confers on an accused charged with a criminal offence would be to make the task of those charged with maintaining order in our prisons immeasurably more difficult. Procedural protection for inmates affected by disciplinary measures is more properly to be found in the more flexible guarantees of s. 7 than in s. 11 of the Charter.

I also find support for my conclusion that s. 11(h) does not apply to the prison disciplinary proceedings against the appellant in the fact that the same view has been taken in other jurisdictions. The American Constitution in the Fifth Amendment contains guarantees against double jeopardy, providing that no person shall "for the same offence . . . be twice put in jeopardy of life or limb". American courts have held, almost without exception, that this guarantee does not preclude criminal prosecution of an inmate who has undergone prison disciplinary proceedings for the same act. The weight of American authority supports the conclusion that the primary purpose of prison disciplinary proceedings is to maintain institutional order and safety and to assist individual rehabilitation, rather than the prosecution of and punishment for "offences" within the Fifth Amendment: State v. Killebrew, 340 N.W.2d 470 (Wis. 1983), at pp. 476-77; Kerns v. Parratt, 672 F.2d 690 (8th Cir. 1982); People v. Lewis, 386 N.E.2d 910 (Ill. 1979); State v. Procter, 367 N.E.2d 908 (Ohio 1977); State v. Keller, 369 N.E.2d 798 (Ohio 1976); In Re Lamb, 296 N.E.2d 280 (Ohio 1973).

English courts have also concluded that proceedings of a disciplinary board against an inmate cannot give rise to a plea of autrefois acquit or autrefois convict or otherwise bar a subsequent criminal proceeding arising out of the same incident: R. v. Hull Prison Board of Visitors, ex parte St. Germain, [1979] 1 All E.R. 701 (C.C.A.)

2. Whether Prosecution of the Appellant is Barred by Regulation 649 of the Ministry of Correctional Services Act

Sections 29 and 30 of Regulation 649 under the Ministry of Correctional Services Act set out the procedures to be followed if an inmate is suspected of having committed misconduct, as defined by s. 28, where the alleged misconduct also constitutes an indictable offence under the Criminal Code.

Section 29(1) provides for consultation between the superintendent and the local Crown Attorney "to determine whether the case should be dealt with by the Crown Attorney under the criminal law or by the Superintendent as a matter of internal discipline."

Section 29(2) states that when a prosecution is commenced by a Crown Attorney, all internal discipline proceedings shall be discontinued.

As the misconduct of the appellant also constituted an indictable offence, the s. 29(1) procedure should have been followed and the Crown Attorney should have been consulted with regard to whether a prosecution under the Criminal Code was expected. It is not known whether or not the Crown Attorney was in fact consulted. What is known is that disciplinary charges proceeded, after which a criminal prosecution proceeded on the complaint of the assaulted inmate.

The general purpose of s. 29 would appear to be to avoid proceeding against an inmate both by way of disciplinary charges and by prosecution for an indictable offence under the Criminal Code. Nevertheless, in my opinion, s. 29 offers no basis upon which a court may stay a criminal prosecution where disciplinary proceedings have taken place.

The first reason why this is so is that s. 29, on its plain wording, cannot be read as precluding criminal prosecution where disciplinary proceedings have occurred. Section 29(2) plainly provides that where external criminal proceedings have commenced, internal disciplinary proceedings must be discontinued. It omits reference to the converse situation -- the staying of a criminal prosecution where internal proceedings have been completed. To read s. 29(2) as prohibiting prosecution would be to insert words into the statute. This I think should not be done.

The Legislature has chosen, in s. 29(2), to accord certain protection to inmates against being both prosecuted and being proceeded against disciplinarily. It must be assumed that the decision to limit the protection to the discontinuance of disciplinary proceedings and not to extend it to staying of criminal charges was made advisedly, for good reason. For example, if an inmate has allegedly committed an apparently minor misconduct for which he is disciplined internally, and it is later discovered that the misconduct was of a very serious criminal nature, it might be argued that criminal proceedings should be allowed to proceed. Similarly, it may have been thought necessary to allow complainants to institute criminal proceedings notwithstanding earlier disciplinary proceedings. The Legislature having chosen to limit the ambit of s. 29(2), it is not for this court to extend that protection beyond what the Legislature has seen fit to grant.

Nor can I accept the suggestion that s. 29(1) should be read as precluding a criminal prosecution where disciplinary proceedings have taken place. If section 29(1) were interpreted to mean that misconduct proceedings may be either external or internal, but not both, then s. 29(2) would be totally unnecessary.

I conclude that the language of s. 29(1) does not preclude criminal proceedings where disciplinary proceedings have already taken place.

The second reason why s. 29 should not be read as requiring a stay of the criminal proceedings, where internal disciplinary proceedings have occurred, relates to constitutional division of powers between the federal government and the provinces. A provincial legislative provision which prohibits the prosecution of criminal offences would be inoperative to preclude prosecution where a complainant has sworn an information, as in the case at bar.

Section 455 (now s. 504) of the Criminal Code permits members of the public to lay an information before a judge if they believe that a person has committed an indictable offence. In Attorney General of Quebec v. Lechasseur, 1981 205 (SCC), [1981] 2 S.C.R. 253, this Court held that s. 455 (now s. 504) was intra vires the federal government. The Court went on to find that the Quebec Youth Protection Act, S.Q. 1977, c. 20, which provided that charges against a juvenile could only proceed to Court through the Director of Youth Protection, was inoperative where an individual had sworn an information because the provincial statute conflicted with the federal provision. Therefore, if s. 29 of the Regulations were interpreted to prohibit criminal prosecution where internal disciplinary proceedings have occurred, the section would be inoperative in any case where an information was laid privately.

It follows that even if s. 29 of the Regulations could be interpreted as precluding prosecution where disciplinary proceedings had taken place, it would be inoperative and of no assistance to the appellant in this case, since the criminal prosecution against him was initiated by a complaint laid by the victim of the assault.

Having thus concluded, I need not embark on the broader constitutional question of whether a provincial law which limits the prosecution of criminal offences would be ultra vires the provinces generally, as infringing the federal power to make laws governing criminal law and criminal procedure.

3. Whether s. 11 of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and s. 29 of the Regulations under the Ministry of Correctional Services Act, Read Together, Require a Stay of Prosecution

I have concluded that neither s. 11 of the Charter nor s. 29 of the Regulations support a stay of the criminal prosecution against the appellant. Nor does reading them together assist, in my opinion. The Province cannot, by conferring certain protections on an inmate, expand the operation of s. 11 of the Charter. Even if the Province were to characterize an internal discipline proceeding as an "offence" within s. 11 of the Charter (which it has not done), that would not suffice; it would still be necessary to examine whether the internal proceeding is in fact a prosecution for a criminal offence or carries true penal consequences under the test in R. v. Wigglesworth. Thus, even if it were accepted that the Legislature in enacting s. 29 viewed internal disciplinary proceedings as akin to criminal prosecutions, it would not follow that such proceedings fall under s. 11(h). The question of whether the Province viewed the disciplinary proceeding as criminal is not relevant to an inquiry under s. 11, in my opinion. The only question is whether the disciplinary proceedings met the test for double jeopardy laid down by this court in R. v. Wigglesworth.

E. Conclusion

In my opinion, the Court of Appeal was correct in setting aside the stay of proceedings granted by the trial judge. I would dismiss the appeal.

Appeal dismissed, WILSON and CORY JJ. dissenting.

Solicitor for the appellant: Dragi Zekavica, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.