John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2025 SCC 6

SUPREME COURT OF CANADA Appeal Heard: October 8 and 9, 2024 Judgment Rendered: March 14, 2025 Docket: 40608 Between: John Howard Society of Saskatchewan Appellant and Government of Saskatchewan (Attorney General for Saskatchewan) Respondent - and - Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Alberta Prison Justice Society, Federation of Sovereign Indigenous Nations, Aboriginal Legal Services Inc., British Columbia Civil Liberties Association, Criminal Lawyers' Association (Ontario), Queen's Prison Law Clinic, Association des avocats.es carcéralistes du Québec, Canadian Civil Liberties Association, Canadian Prison Law Association and West Coast Prison Justice Society Interveners Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ. Reasons for Judgment: (paras. 1 to 99) Wagner C.J. (Karakatsanis, Martin, Kasirer, O'Bonsawin and Moreau JJ. concurring) Dissenting Reasons: (paras. 100 to 297) Côté J. (Rowe and Jamal JJ. concurring) Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports . John Howard Society of Saskatchewan Appellant v. Government of Saskatchewan (Attorney General for Saskatchewan) Respondent and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Alberta Prison Justice Society, Federation of Sovereign Indigenous Nations, Aboriginal Legal Services Inc., British Columbia Civil Liberties Association, Criminal Lawyers' Association (Ontario), Queen's Prison Law Clinic, Association des avocats.es carcéralistes du Québec, Canadian Civil Liberties Association, Canadian Prison Law Association and West Coast Prison Justice Society Interveners Indexed as: John Howard Society of Saskatchewan v. Saskatchewan (Attorney General) 2025 SCC 6 File No.: 40608. 2024: October 8, 9; 2025: March 14. Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ. on appeal from the court of appeal for saskatchewan Constitutional law — Charter of Rights — Fundamental justice — Presumption of innocence — Inmate disciplinary proceedings — Standard of proof — Provincial legislation setting applicable standard of proof at balance of probabilities — Whether legislation infringes s. 11(d) of Charter — Whether legislation infringes s. 7 of Charter — If so, whether infringement justified under s. 1 — Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d) — Correctional Services Regulations, 2013, s. 68 . Section 68 of Saskatchewan's Correctional Services Regulations, 2013 (" Regulations ") sets at a balance of probabilities the applicable standard of proof in disciplinary proceedings involving inmates of provincial correctional institutions. An inmate found guilty of committing a "major disciplinary offence" may be subject to disciplinary segregation for up to 30 days and may lose up to 30 days of earned remission of sentence. Section 68 of the Regulations was challenged by the John Howard Society of Saskatchewan. The challenge was initially brought exclusively under s. 7 of the Charter on the basis that the residual protection for the presumption of innocence requires proof of guilt beyond a reasonable doubt before disciplinary segregation or loss of earned remission can be imposed. At the Supreme Court, JHS added a new argument that s. 68 of the Regulations also violates s. 11(d) of the Charter . Held (Côté, Rowe and Jamal JJ. dissenting): The appeal should be allowed, the judgments below set aside and s. 68 of the Regulations declared to be of no force or effect. Per Wagner C.J. and Karakatsanis, Martin, Kasirer, O'Bonsawin and Moreau JJ.: Section 68 of the Regulations infringes ss. 7 and 11(d) of the Charter because it permits the imposition of imprisonment when a reasonable doubt as to the accused's guilt may exist. Such an infringement cannot be saved by s. 1 of the Charter . To the extent that s. 68 of the Regulations permits the imposition of disciplinary segregation and loss of earned remission for an inmate disciplinary offence on a lower standard of proof, it is inconsistent with the Constitution and must therefore be declared to be of no force or effect. The Court can exercise its discretion to consider a new issue of law on 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. The instant case is one of the exceptional cases where it is appropriate for the Court to exercise its discretion to consider the new constitutional issue raised on appeal, which questions whether s. 68 of the Regulations infringes s. 11(d) of the Charter . There is no indication that the Attorney General of Saskatchewan or any other attorney general would be disadvantaged if the Court were to consider the new issue; rather, failing to consider the new issue would create a potential injustice, as there is a risk that unnecessary expenses and delay would result from not considering the issue and the related question of whether Shubley remains good law. Section 11(d) of the Charter guarantees all persons charged with an offence the right to be presumed innocent until proven guilty. This presumption requires guilt to be proven beyond a reasonable doubt. Section 11 of the Charter applies to a person "charged with an offence" either where the proceedings are "criminal in nature" (the criminal in nature test) or where there is a "true penal consequence" for the offence (the true penal consequence test). The true penal consequence test is always satisfied where there is the possibility of imprisonment. "Imprisonment" under the true penal consequence test must be defined functionally in order to give effect to the liberty-protecting purpose of s. 11 . The Court's decision in Shubley held that inmate disciplinary proceedings were not criminal in nature because they lacked the essential characteristics and public accountability purpose of criminal proceedings. Although Shubley 's conclusion on the criminal in nature test remains sound, its application of the true penal consequence test is no longer good law because it adopted a formalistic interpretation of "imprisonment" that is in tension with the contemporary legal landscape. Since Shubley was decided, courts and legislatures have increasingly recognized the importance of rights of inmates. Shubley 's conclusion that disciplinary segregation and loss of earned remission are not forms of imprisonment was also formed on the basis of an overly formalistic distinction between a sentence of imprisonment and the conditions of imprisonment that has been eroded by subsequent jurisprudence. Adopting a functional definition of imprisonment gives effect to the liberty-protecting purpose of s. 11 . The concept of imprisonment must be defined by reference to its substantive attributes, rather than its formal characteristics. Imprisonment means the denial of freedom of movement and the segregation or isolation of an individual from society within a confined space. The question is whether a given sanction is equivalent in severity to a sentence of incarceration for the purposes of assessing whether it constitutes a "true penal consequence". A sentence of incarceration involves the confining of an individual and restricting their freedom of movement, the isolating or segregating of that individual from others, and depriving that individual of many basic freedoms. Both disciplinary segregation and loss of earned remission significantly curtail an inmate's freedom of movement while exacerbating or continuing the inmate's segregation from society and therefore constitute forms of imprisonment under the true penal consequence test. During disciplinary segregation, an inmate is confined to a cell for 23 hours a day. Loss of earned remission, by extending the inmate's stay in a correctional institution, postpones the time at which the inmate's overall sentence of incarceration will end, which extends their deprivation of liberty and isolation from society. Therefore, both sanctions constitute true penal consequences. It follows that s. 11 applies to the relevant Saskatchewan inmate disciplinary proceedings. Section 7 of the Charter provides residual protection for the presumption of innocence. In proceedings where a moral judgment is made and severe liberty-depriving consequences are imposed as punishment, the presumption of innocence protected under s. 7 requires that the state prove guilt beyond a reasonable doubt. Given the severity of the liberty-depriving consequences of major disciplinary offences and the moral character of the determinations made in those proceedings, the presumption of innocence protected under s. 7 requires that a finding of guilt be made only where there is proof beyond a reasonable doubt. In the instant case, while promoting the expeditious resolution of inmate disciplinary proceedings constitutes a pressing and substantial objective, 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 there is no evidence that its use has hindered the administration of those proceedings. As a result, s. 68 of the Regulations fails the minimal impairment test and is not saved by s. 1 of the Charter . Per Côté , Rowe and Jamal JJ. (dissenting): The appeal should be dismissed. Shubley remains good law and a binding precedent and must be applied in the present case. As in Shubley , Saskatchewan's inmate disciplinary proceedings do not satisfy the Wigglesworth test and are not captured by s. 11 of the Charter . Section 7 is engaged but is not infringed by Saskatchewan's inmate disciplinary proceedings because the presumption of innocence, as a principle of fundamental justice guaranteed by s. 7, is applied in conjunction with the requirements of procedural fairness, and the procedural guarantees in Saskatchewan's legislative framework are sufficient to meet the requirements of fundamental justice. There is agreement with the majority that the Court should hear the new constitutional issue of whether s. 68 of the Regulations infringes s. 11(d) of the Charter , as the instant case meets the stringent requirements for hearing a new issue on appeal. Shubley considered the Wigglesworth test in the inmate disciplinary context. It remains good law and is a precedent that binds the Court to find that neither loss of earned remission nor disciplinary segregation satisfies the true penal consequences prong of the Wigglesworth test. First, Shubley is not unworkable. While Shubley 's application of Wigglesworth has led to a legal landscape where the s. 7 protections available to inmates subject to disciplinary proceedings vary from province to province, this variation is not a result of the applicable legal standard but rather of the factual differences between provincial disciplinary regimes. The mere fact that the present case is under s. 7 does not mean Shubley is unworkable. Rather, it is perfectly consistent with how matters that are not truly criminal in nature are regulated by s. 7 , as distinguished from s. 11 . Second, Shu bley has not been subject to foundational erosion. With respect to the criminal in nature prong of the Wigglesworth test, recent case law has not changed its focus; the proceeding still lies at the heart of the analysis. In Martineau and Guindon , the Court simply highlighted the characteristics that the Court had always previously found determinative. With respect to the true penal consequences prong of the test, recent case law has not changed the main focus of the analysis; the purpose of the sanction is still the primary consideration. Section 11 does not apply to Saskatchewan's inmate disciplinary proceedings because it does not satisfy the test set out in Wigglesworth . The test is twofold. First, it asks whether the proceeding is criminal in nature. Second, it asks whether the maximum potential sanction constitutes a true penal consequence. These prongs must be understood in light of the purpose of s. 11 , which is to provide procedural protections in the context of the criminal justice system. The Wigglesworth test sets an "indisputably high bar" to allow for a narrow application of s. 11 in order to further this purpose. Saskatchewan's inmate disciplinary proceedings do not meet the two-step test in Wigglesworth and therefore do not engage s. 11 . They are administrative, not criminal, in nature. They are designed to maintain order and safety in prison, and are distinguishable from actual criminal proceedings. The sanctions are not true penal consequences because they are not intended to redress public wrongs and do not serve to promote denunciation, retribution, or deterrence in the general sense. Under the criminal in nature prong of the test, the objective of the legislation is to maintain order and discipline in correctional facilities in Saskatchewan. This is in accordance with Shubley , which found that the regulatory scheme that governed inmate disciplinary proceedings in Ontario — which is similar to Saskatchewan's — was a "scheme for the preservation of prison order and discipline" and not a "scheme for the punishment of criminals". The process leading to the sanction also demonstrates that the proceedings are administrative in nature, not criminal. Under the true penal consequence prong of the test, segregation and loss of remission as possible consequences are at issue. Shubley ruled that both sanctions concerned the manner in which the inmate serves the sentence and were therefore part of the conditions of imprisonment as opposed to an added term of imprisonment, and thus were not true penal consequences. This remains a coherent characterization of the sanctions and cannot be departed from on account of the recent jurisprudence of the Court. The purpose of imposing a loss of remission is not to add to an inmate's sentence. It is to maintain order within a correctional institution. The application judge rightly referred to the cancellation of earned remission as "a tool for prison administration to ensure the orderly running of a prison". The sanction is imposed not to punish or denounce, but rather to encourage compliance and deter breaches of the facility rules. This makes the consequence non-penal. Section 7 is engaged but is not infringed by Saskatchewan's inmate disciplinary proceedings because the presumption of innocence, as a principle of fundamental justice guaranteed by s. 7, is applied in conjunction with the requirements of procedural fairness that serve as residual protection under s. 7. The concern is to ensure that the presumption of innocence within s. 11(d), which firmly operates during a criminal trial, applies at other stages of the justice system when two requirements are met: there must be a determination of guilt, and the consequences imposed must be serious consequences analogous to a criminal sentence. This analysis does not apply to proceedings that are administrative in nature rather than criminal; in particular, the Pearson analysis does not import into a non-criminal context the procedural protections that apply in the criminal context, and it should not be read as creating a broad basis for applying proof beyond a reasonable doubt outside of the criminal law context. In the present case, the procedural guarantees provided to inmates in the legislation are sufficient to ensure a fair process. The Court's jurisprudence clearly indicates that the question of standard of proof under s. 7 can be folded into discussions of procedural fairness and where the standard required under s. 7 is determined in the context of the overall procedural regime. In evaluating the constitutional adequacy of that regime, the highly structured legislative framework in place in Saskatchewan clearly satisfies the requirements of procedural fairness and the presumption of innocence as protected by s. 7 . Having found no infringement of s. 7 or s. 11 (d), there is no need to proceed to an analysis under s. 1 of the Charter . However, if s. 68 had not been constitutionally compliant, the s. 1 determination should have been remitted to the application judge. There is disagreement with the majority's conclusion that s. 68 of the Regulations fails the minimal impairment test. Given that the majority does not dispute that the objective is pressing and substantial, it ought to have conducted the s. 1 analysis in full rather than finding that the measure is not minimally impairing. The mere existence of an alternative measure that has been adopted by the federal government does not establish that the current provincial regime fails the minimal impairment test. Cases Cited By Wagner C.J. Overruled: R. v. Shubley , [1990] 1 S.C.R. 3; applied : R. v. Oakes , [1986] 1 S.C.R. 103; R. v. Wigglesworth , [1987] 2 S.C.R. 541; Guindon v. Canada , 2015 SCC 41 , [2015] 3 S.C.R. 3; considered : R. v. 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British Columbia , 2007 SCC 27 , [2007] 2 S.C.R. 391; Quebec (Attorney General) v. A , 2013 SCC 5 , [2013] 1 S.C.R. 61; R. v. Turpin , [1989] 1 S.C.R. 1296; Hunter v. Southam Inc. , [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd. , [1985] 1 S.C.R. 295; R. v. Zinck , 2003 SCC 6 , [2003] 1 S.C.R. 41; May v. Ferndale Institution , 2005 SCC 82 , [2005] 3 S.C.R. 809; Solosky v. The Queen , [1980] 1 S.C.R. 821; R. v. Miller , [1985] 2 S.C.R. 613; Morin v. National Special Handling Unit Review Committee , [1985] 2 S.C.R. 662; Cardinal v. Director of Kent Institution , [1985] 2 S.C.R. 643; Dumas v. Leclerc Institute , [1986] 2 S.C.R. 459; Jones v. Cunningham , 371 U.S. 236 (1962); Canada (Public Safety and Emergency Preparedness) v. Chhina , 2019 SCC 29 , [2019] 2 S.C.R. 467; Cunningham v. Canada , [1993] 2 S.C.R. 143; Canada (Attorney General) v. Whaling , 2014 SCC 20 , [2014] 1 S.C.R. 392; R. v. Rodgers , 2006 SCC 15 , [2006] 1 S.C.R. 554; R. v. 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British Columbia (Superintendent of Motor Vehicles) , 2014 BCCA 79 , 55 B.C.L.R. (5th) 1; R. v. K.R.J. , 2016 SCC 31 , [2016] 1 S.C.R. 906; Canada (Attorney General) v. United States Steel Corp. , 2011 FCA 176 , 333 D.L.R. (4th) 1; Canada (Attorney General) v. Power , 2024 SCC 26 ; Auer v. Auer , 2024 SCC 36 ; Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653; Watkins v. Olafson , [1989] 2 S.C.R. 750; Goodwin v. British Columbia (Superintendent of Motor Vehicles) , 2015 SCC 46 , [2015] 3 S.C.R. 250; Cunningham v. Canada , [1993] 2 S.C.R. 143; British Columbia Civil Liberties Association v. Canada (Attorney General) , 2019 BCCA 228 , 377 C.C.C. (3d) 420; Canadian Civil Liberties Assn. v. Canada (Attorney General) , 2019 ONCA 243 , 144 O.R. (3d) 641; R. v. Miller , [1985] 2 S.C.R. 613; Morin v. National Special Handling Unit Review Committee , [1985] 2 S.C.R. 662; Cardinal v. Director of Kent Institution , [1985] 2 S.C.R. 643; Dumas v. 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Torroni , 2009 ONCA 85 , 94 O.R. (3d) 614; R. v. Gardiner , [1982] 2 S.C.R. 368; R. v. Whitty (1999) , 174 Nfld. & P.E.I.R. 77 ; R. v. Lyons , [1987] 2 S.C.R. 309 ; R. v. Noble , [1997] 1 S.C.R. 874 ; Martineau v. Matsqui Institution Disciplinary Boar d , [1980] 1 S.C.R. 602; R. v. D.B. , 2008 SCC 25 , [2008] 2 S.C.R. 3 ; Charkaoui v. Canada (Citizenship and Immigration) , 2008 SCC 38 , [2008] 2 S.C.R. 326; Ruby v. Canada (Solicitor General) , 2002 SCC 75 , [2002] 4 S.C.R. 3; Canada (Citizenship and Immigration) v. Harkat , 2014 SCC 37 , [2014] 2 S.C.R. 33; Howard v. Stony Mountain Institution , [1984] 2 F.C. 642; R. v. Ndhlovu , 2022 SCC 38 ; Suresh v. Canada (Minister of Citizenship and Immigration) , 2002 SCC 1 , [2002] 1 S.C.R. 3; Singh v. Minister of Employment and Immigration , [1985] 1 S.C.R. 177; Perron v. Canada (Attorney General) , 2020 FC 741 . Statutes and Regulations Cited Act to provide for the Maintenance and Government of the Provincial Penitentiary, erected near Kingston, in the Midland District , S.U.C. 1834, 4 Will. 4, c. 37, s. 27. Canadian Charter of Rights and Freedoms , ss. 1, 7 , 8 to 14 . Constitution Act, 1982 , s. 52. Correctional Services Act, 2012 , S.S. 2012, c. C‑39.2, ss. 3(d), (e), 23 to 25 , 58 , Part VIII, 71, 72, 75, 77, 79, 80, 99. Correctional Services Regulations, 2013 , R.R.S., c. C‑39.2, Reg. 1, ss. 6(1), Part XIII, 50 to 71. Corrections and Conditional Release Act , S.C. 1992, c. 20, s. 43(3). Corrections and Conditional Release Regulations , SOR/92‑620, s. 28. Criminal Code , R.S.C. 1985, c. C‑46. Immigration and Refugee Protection Act , S.C. 2001, c. 27, Part 1, Division 4, s. 36(1), (3)(d). Penitentiary Act of 1868 , S.C. 1868, c. 75, s. 62. Prisons and Reformatories Act , R.S.C. 1985, c. P‑20, s. 6(1), (5) . Authors Cited Canada. Reports of the Commissioners Appointed to Inquire Into the Conduct, Discipline, & Management of the Provincial Penitentiary . Montréal, 1849. Canada. Commission of Inquiry into the disturbances at Kingston Penitentiary in April, 1971. Report of the Commission of Inquiry Into Certain Disturbances at Kingston Penitentiary During April, 1971 . Ottawa, 1972. Canada. Correctional Law Review. Working Paper No. 5"Correctional Authority and Inmate Rights", 1987, in Solicitor General Canada, Influences on Canadian Correctional Reform: Working Papers of the Correctional Law Review, 1986 to 1988 . Ottawa, 2002, 165. Canada. Correctional Service. Commissioner's Directive 580: Discipline of Inmates , June 28, 2021 (online: https://www.canada.ca/en/correctional-service/corporate/acts-regulations-policy/commissioners-directives/580.html; archived version: https://www.scc-csc.ca/cso-dce/2025SCC-CSC6_1_eng.pdf ). Canada. Department of Justice. 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. Canada. Royal Commission to Investigate the Penal System of Canada. Report of the Royal Commission to Investigate the Penal System of Canada . Ottawa, 1938. Canada. Standing Committee on Justice and Legal Affairs. Sub‑Committee on the Penitentiary System in Canada. Report to Parliament . Ottawa, 1977. Canada. Study Group on Dissociation. Report of the Study Group on Dissociation . Ottawa, 1975. Cole, David P., and Allan Manson. Release From Imprisonment: The Law of Sentencing, Parole and Judicial Review . Toronto: Carswell, 1990. Garant, Patrice, and Paule Halley. "L' article 7 de la Charte canadienne et la discipline carcérale" (1989), 20 R.G.D. 599 . Jackson, Michael. Prisoners of Isolation: Solitary Confinement in Canada . Toronto: University of Toronto Press, 1983. Kerr, Lisa. "Contesting Expertise in Prison Law" (2014), 60 McGill L.J. 43. Ombudsman Saskatchewan. Annual Report 2019 . Regina, 2020. Saskatchewan. Legislative Assembly. Debates and Proceedings (Hansard) , vol. 54, No. 6A, 1st Sess., 27th Leg., December 13, 2011, p. 177. Saskatchewan. Ministry of Corrections, Policing and Public Safety – Custody, Supervision and Rehabilitation Services. Inmate Discipline , last updated November 9, 2023 (online: https://publications.saskatchewan.ca/#/products/102067; archived version: https://www.scc-csc.ca/cso-dce/2025SCC-CSC6_2_eng.pdf ). Sharpe, Robert J. Good Judgment: Making Judicial Decisions . Toronto: University of Toronto Press, 2018. APPEAL from a judgment of the Saskatchewan Court of Appeal (Schwann, Tholl and McCreary JJ.A.), 2022 SKCA 144 , 476 D.L.R. (4th) 641, [2022] S.J. No. 449 (Lexis), 2022 CarswellSask 587 (WL), affirming a decision of Layh J., 2021 SKQB 287 , [2021] S.J. No. 471 (Lexis), 2021 CarswellSask 651 (WL). Appeal allowed with costs throughout, Côté , Rowe and Jamal JJ. dissenting. Pierre E. Hawkins and Michelle Biddulph , for the appellant. Katherine Roy and Laura Mazenc , for the respondent. BJ Wray and Anusha Aruliah , for the intervener the Attorney General of Canada. Andrea Bolieiro and Emily Owens , for the intervener the Attorney General of Ontario. Christophe Achdjian and Jean-Vincent Lacroix , for the intervener the Attorney General of Quebec. Chantelle Rajotte and Trevor Bant , for the intervener the Attorney General of British Columbia. Nicholas Trofimuk and John-Marc Dube , for the intervener the Attorney General of Alberta. Avnish Nanda , for the intervener the Alberta Prison Justice Society. Leif Jensen and Michael Seed , for the intervener the Federation of Sovereign Indigenous Nations. Emily Hill and Maxwell Hill , for the intervener the Aboriginal Legal Services Inc. Alexandra Belley-McKinnon , Jean-Philippe Groleau and Molly Krishtalka , for the intervener the British Columbia Civil Liberties Association. Eric S. Neubauer and Paul Socka , for the intervener the Criminal Lawyers' Association (Ontario). Samara Secter and Wesley Dutcher-Walls , for the intervener the Queen's Prison Law Clinic. Louis-Alexandre Hébert-Gosselin , for the intervener Association des avocats.es carcéralistes du Québec. Erika Anschuetz and Alexa Biscaro , for the intervener the Canadian Civil Liberties Association. Jessica Magonet and Max McQuaig , for the intervener the Canadian Prison Law Association. David Honeyman , for the intervener the West Coast Prison Justice Society. The judgment of Wagner C.J. and Karakatsanis, Martin, Kasirer, O'Bonsawin and Moreau JJ. was delivered by The Chief Justice — ## I. Introduction

I. Introduction

1A fundamental principle of Canadian law is that a person is presumed innocent until proven guilty beyond a reasonable doubt. The presumption of innocence protects individuals from wrongful convictions. It holds that it is better to acquit a guilty person than to convict an innocent one. Despite being a foundational principle of the Canadian legal tradition, the presumption of innocence does not extend to every non-criminal proceeding in Canada. Its reach depends on the context. In some contexts, a lower standard of proof may be constitutionally permissible.

2Section 11(d) of the Charter guarantees all persons "charged with an offence" the right to be "presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal". The protections of s. 11 apply when a person has been charged with an offence under the criminal law, or where criminal-type sanctions may be imposed. The result is that the presumption of innocence embedded in s. 11(d) does not automatically apply in every disciplinary context. Only where the offence may result in criminal-type sanctions does s. 11(d) apply.

3The 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 . Section 68 provides that the standard of proof in disciplinary proceedings involving inmates of provincial correctional institutions is the civil standard of proof on a balance of probabilities.

4JHS 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 before disciplinary segregation or loss of earned remission can be imposed. Before this Court, JHS now also argues that s. 68 of the Regulations violates s. 11(d) of the Charter because Saskatchewan's inmate disciplinary proceedings constitute criminal proceedings that may result in "imprisonment" under the true penal consequence test articulated in R. v. Wigglesworth , [1987] 2 S.C.R. 541.

5Under the tests articulated in R. v. Wigglesworth , [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 result in true penal consequences, which are always present when the offence may be punished by imprisonment. In R. v. Shubley , [1990] 1 S.C.R. 3, this Court concluded that provincial inmate disciplinary proceedings do not fall within either category. The question before this Court is therefore whether that decision should be overturned.

6On 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 and the precedent should therefore be set aside.

7As 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 are not true penal consequences was formed on the basis of an overly formalistic distinction between a formal sentence of imprisonment and the conditions of imprisonment, a distinction that has subsequently been eroded by this Court's jurisprudence. To the extent that Shubley held that disciplinary segregation and loss of earned remission are not forms of imprisonment, it is no longer good law and should be overruled.

8Section 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 . Section 7 of the Charter also provides residual protection for the presumption of innocence, which is independently infringed by s. 68 in these circumstances. The infringement 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. ## II. Background and Judicial History ### A. Background

II. Background and Judicial History

10Saskatchewan's inmate disciplinary process is codified by Part VIII of the Act and Part XIII of the Regulations . Disciplinary offences are enumerated in s. 54 of the Regulations . These offences are divided into "major" and "minor" disciplinary offences. Section 77(1) of the Act governs sanctions for major disciplinary offences. Minor offences can be dealt with informally.

11Section 77(1) of the Act provides that, after finding that an inmate has committed a major disciplinary offence, the discipline panel may impose "segregation to a cell, unit or security area for a period of not more than 30 days", forfeiture of earned remission of up to 30 days, and loss of privileges, among other sanctions. The combination of sanctions can be used, with a maximum combined period of segregation not exceeding 30 days. Hearings are before a three-person panel comprised of a discipline panel chair and two other members.

12Inmates subject to disciplinary segregation in Saskatchewan are only guaranteed one hour out of their cells each day to permit them to shower, exercise, and go outside (affidavit of Lindsay Tokaruk, reproduced in A.R., at p. 198). For the remaining 23 hours each day, segregated inmates are in their cells.

[13] Earned remission refers to reductions in an inmate's sentence for good behaviour in a correctional institution. Pursuant to s. 99 of the Act , an inmate may obtain remission as provided for in the Regulations . ### B. Court of Queen's Bench for Saskatchewan, 2021 SKQB 287 (Layh J.)

B. Court of Queen's Bench for Saskatchewan, 2021 SKQB 287 (Layh J.)

14The application judge held that s. 68 of the Regulations does not violate s. 7 of the Charter . He began his analysis by noting that the AGS had conceded that s. 7 was engaged because s. 77 of the Act permits a discipline panel to impose segregation.

15The application judge began his analysis by considering the nature of the proceedings. He noted that it was held in Shubley that inmate disciplinary proceedings are "not by their nature criminal" (para. 58), and proceeded to determine whether the presumption of innocence was a principle of fundamental justice applicable to inmate disciplinary proceedings.

[16] The application judge further considered whether the severity of the consequences in question warrants a heightened standard of proof under s. 7. He deferred to this Court's conclusion in Shubley that disciplinary segregation and loss of earned remission are not "true penal consequences" and thus do not give rise to the right to the protections of s. 11. The application judge concluded that this amounted to a finding that the presumption of innocence did not require proof beyond a reasonable doubt in the context of provincial inmate disciplinary proceedings, having regard to the overall procedural regime and the nature and extent of the consequences. ### C. Court of Appeal for Saskatchewan, 2022 SKCA 144 , 476 D.L.R. (4th) 641 (Schwann, Tholl and McCreary JJ.A.)

C. Court of Appeal for Saskatchewan, 2022 SKCA 144 , 476 D.L.R. (4th) 641 (Schwann, Tholl and McCreary JJ.A.)

17The Court of Appeal unanimously concluded that s. 68 of the Regulations does not infringe s. 7 of the Charter . Rather than framing JHS's claim as seeking the recognition of a new principle of fundamental justice, the Court of Appeal held that the issue was whether the presumption of innocence, as a pre-existing principle, requires the reasonable doubt standard in the context of provincial inmate disciplinary proceedings.

18In rejecting JHS's claim, the Court of Appeal first considered the nature of the consequences that such proceedings may have for inmates, focusing on segregation and loss of earned remission. The Court of Appeal analyzed these consequences against the backdrop of Shubley and concluded that they do not rise to the level of consequences that trigger the heightened standard of proof.

[19] The Court of Appeal then turned to the question of whether the nature of disciplinary proceedings suggests that the presumption of innocence applies. In making this determination, the Court of Appeal agreed with the application judge's decision to rely on Shubley as indicative of the nature of such proceedings, describing them as "regulatory in nature" rather than "criminal". The Court of Appeal also dismissed a comparison to civil contempt proceedings. ## III. Issues

III. Issues

[20] This appeal raises the following issues: 1. Does s. 68 of the Regulations infringe s. 11(d) of the Charter ? 2. Does s. 68 of the Regulations infringe s. 7 of the Charter ? 3. If either s. 7 or s. 11 (d) is infringed, can s. 68 of the Regulations be saved under s. 1 of the Charter ? ## IV. Analysis ### A. Section 11(d) Should Be Considered

IV. Analysis

21JHS acknowledges that the question of whether s. 68 of the Regulations infringes s. 11(d) is a new constitutional issue raised on appeal.

22In 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). The test is "stringent" and should not be exercised "routinely or lightly" ( Guindon , at para. 22 ).

23In 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.

24On 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.

25Failing 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. Were this Court to avoid deciding these questions, the parties would likely have to return to this Court with the new issue after the case was remitted for further findings of fact. Given that the extensive record in this case is sufficient to resolve the constitutional question, there would be no good reason to delay the decision on the new issue.

[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 claims under these provisions is addressed by the dissent. As I conclude that both ss. 7 and 11(d) are infringed, I need not address the question of whether courts should systematically analyze claims under s. 11(d) before turning to s. 7 in every case where both provisions are at issue. ### B. Section 11(d) of the Charter Is Infringed #### (1) Scope of Section 11

B. Section 11(d) of the Charter Is Infringed

27Section 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 applies to persons charged with offences where the proceedings are "criminal in nature". Second, s. 11 applies where the offence may result in "true penal consequences".

28The 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 outcomes" (para. 74). The two tests are alternatives: the protections in s. 11 will be triggered if either test is satisfied ( Guindon , at para. 74 ).

29Under 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 para. 20 ). Under this test, proceedings are "criminal in nature" when they are "intended to promote public order and welfare within a public sphere of activity" ( Wigglesworth , at p. 559 ). This test is concerned with the overarching object of the legal scheme as a whole, and turns on "whether the proceeding is conducted with a view to determining criminal liability and imposing public punishment for what is essentially a criminal wrong" ( Guindon , at para. 89 ).

30Importantly 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 whether their "purpose is to redress a wrong done to society" or "to impose a true punishment or to redress a public wrong" ( Guindon , at para. 76 ).

31As 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 formal manner, it is clear that both of these sanctions constitute forms of imprisonment and therefore satisfy the true penal consequence test. This conclusion requires overruling Shubley 's holding that disciplinary segregation and loss of earned remission are not true penal consequences. #### (2) Legal Status of Shubley

32If Shubley remains a binding precedent, it must be concluded that disciplinary segregation and loss of earned remission are not true penal consequences. JHS argues that Shubley should be overturned for two reasons: (a) reliance on s. 7 of the Charter as a residual constitutional protection for the presumption of innocence has proven to be unworkable; and (b) subsequent jurisprudence has eroded the legal foundations of Shubley 's application of the true penal consequence test.

33The decision to depart from a precedent of this Court should not be taken lightly. This is because adherence to precedent furthers values such as the certainty and predictability of the law ( R. v. Sullivan , 2022 SCC 19 , [2022] 1 S.C.R. 460, at para. 68 )"the integrity of the legal system" ( Sullivan , at para. 68 ), and "judicial economy" ( Sullivan , at para. 68 ). As a result, a court will depart from a precedent where there is good reason to do so, namely when a precedent is unworkable or when its legal foundations have eroded ( Sullivan , at paras. 68-70 ; R. v. Mentuck , 2001 SCC 76 , [2001] 3 S.C.R. 442 , at para. 38 ; Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd. , 2002 SCC 19 , [2002] 1 S.C.R. 678, at para. 20 ).

34Shubley is an example of this type of precedent. When Shubley is situated within the full constellation of this Court's subsequent case law on Charter interpretation, it is clear that its reasoning in applying the true penal consequence test rests on an eroded legal foundation.

35This Court has overturned precedents that adopted an overly formalistic method of Charter interpretation before (see, e.g., R. v. Beaulac , [1999] 1 S.C.R. 768, at paras. 16-25 ; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia , 2007 SCC 27 , [2007] 2 S.C.R. 391 , at paras. 12 , 22 and 27 ; Quebec (Attorney General) v. A , 2013 SCC 5 , [2013] 1 S.C.R. 61 , at para. 331 ; R. v. Turpin , [1989] 1 S.C.R. 1296, at p. 1331 ).

36Legal interpretation becomes formalistic when there is excessive adherence to matters of form at the expense of substance. When formalism is adopted, legal interpretation becomes a "mechanical and sterile categorization process" that undermines the proper purpose of the law ( R. v. Généreux , [1992] 1 S.C.R. 259, at p. 285 ).

37Avoidance of formalism takes on heightened importance in constitutional interpretation because a constitution's "function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties" ( Hunter v. Southam Inc. , [1984] 2 S.C.R. 145, at p. 155 ; R. v. Big M Drug Mart Ltd. , [1985] 1 S.C.R. 295, at p. 344 ). The result is that constitutional rights "must be interpreted generously rather than in a legalistic or technical manner" ( Big M Drug Mart Ltd. , at p. 344 ). It follows that the rights in the Charter must "be given a large and liberal interpretation" that avoids formalistic approaches ( R. v. Zinck , 2003 SCC 6 , [2003] 1 S.C.R. 41 , at para. 14 ).

38Shubley 's application of the true penal consequence test was formalistic in a way that sits in tension with the contemporary legal landscape on Charter interpretation. In that case, an inmate argued that his punishment of disciplinary segregation constituted a true penal consequence, triggering the protections of s. 11 of the Charter . Writing for the majority, McLachlin J. (as she then was) rejected this argument on the grounds that "the 'punishment' imposed under the disciplinary process was part of the matrix of conditions of imprisonment" and that any punishment flowing from a disciplinary proceeding would be "part of the conditions of his imprisonment rather than a further sentence" (pp. 22-23). Therefore, according to McLachlin J.'s majority reasons in Shubley , the disciplinary segregation and loss of earned remission were merely adjustments to the conditions of the existing sentence of imprisonment — not additions to that sentence that themselves constitute a new imprisonment.

39By conflating the concept of imprisonment with a formal sentence of imprisonment, the majority in Shubley narrowed Wigglesworth 's holding that "imprisonment" is a true penal consequence that will always trigger s. 11 of the Charter . This narrowing of the meaning of "imprisonment" was formalistic in nature, as it prioritized the formal legal categorization of an individual's status (i.e., already imprisoned) over the substantive liberty interests at stake.

40At 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 at the heart of the legal debate surrounding inmates' rights. The logic of this distinction is that, once a person has been sentenced to a period of imprisonment, their status as a prisoner entails that they have already lost their liberty.

41However, 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 , [1980] 1 S.C.R. 821, at p. 839 ). This recognition was reflected in the subsequent evolution of the law with respect to the rights of prisoners, including through habeas corpus.

42For 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] 2 S.C.R. 613, this Court held that habeas corpus is available to inmates seeking to challenge administrative segregation — a transfer to a segregated unit — even when the initial imprisonment was lawful. The same conclusion was reached in Morin v. National Special Handling Unit Review Committee , [1985] 2 S.C.R. 662, and Cardinal v. Director of Kent Institution , [1985] 2 S.C.R. 643. Together, these cases form a "trilogy" of decisions that confirmed the availability of habeas corpus to inmates challenging their conditions of confinement.

43This 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] 2 S.C.R. 459, which clarified that habeas corpus is available when "there has been a substantial change in the condition of the prisoner's imprisonment by way of a transfer to a treatment centre or a high-security unit" or when "the prisoner's residual liberty is substantially reduced" (p. 464). [ 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] 2 S.C.R. 459, which clarified that habeas corpus is available when "there has been a substantial change in the condition of the prisoner's imprisonment by way of a transfer to a treatment centre or a high-security unit" or when "the prisoner's residual liberty is substantially reduced" (p. 464).

44This 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] 2 S.C.R. 143, this Court held that s. 7 is engaged "where there is a statutory scheme that operates to deprive a person of their residual liberty" (p. 151). This Court confirmed in May v. Ferndale Institution , 2005 SCC 82 , [2005] 3 S.C.R. 809, that an inmate's "residual liberty interest is engaged when an inmate is transferred from a medium security institution to a maximum security institution or when an inmate is placed in administrative segregation" (para. 73).

45Changes 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 earned remission could constitute "punishment" within the meaning of ss. 11(h) and (i) of the Charter and that these changes could violate those provisions.

46Whaling '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 Charter values such as liberty and dignity" ( R. v. K.R.J. , 2016 SCC 31 , [2016] 1 S.C.R. 906, at para. 4 ; see also R. v. Rodgers , 2006 SCC 15 , [2006] 1 S.C.R. 554, at paras. 62-63 ).

47A 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 of imprisonment and the conditions of imprisonment. Instead, this Court has recognized that the substance of the constraint on an inmate's freedom is what matters, not simply whether the inmate has been sentenced to imprisonment or not.

48Since 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 Martineau and Guindon — the most recent cases that have addressed the true penal consequence test — this Court applied the test without endorsing Shubley 's formalistic conclusion that the concept of imprisonment is limited to a formal sentence of imprisonment.

49In 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 ).

50As 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 full panoply of protections afforded by s. 11 (para. 38). I fully agree with this characterization.

51I will now explain 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. #### (3) Section 11 Is Engaged by Offences Punishable by Disciplinary Segregation or Loss of Earned Remission ##### (a) Meaning of "Imprisonment"

52The 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 . For the reasons I explain below, I conclude that they do.

53At 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 are not additional forms of imprisonment but rather, an adjustment to the conditions of the existing imprisonment. This is essentially the position taken by the majority in Shubley .

54Instead, 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 individual from society within a confined space" (p. 45).

55Adopting 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" available in our criminal justice system ( R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61, at para. 28 ; see also R. v. Wu , 2003 SCC 73 , [2003] 3 S.C.R. 530, at paras. 9 and 52 ). The concept of imprisonment must therefore be defined by reference to its substantive attributes, rather than its formal characteristics. The question is whether a given sanction is equivalent in severity to a sentence of incarceration for the purposes of assessing whether it constitutes a "true penal consequence". A sentence of incarceration involves: (a) confining the individual and restricting their freedom of movement; (b) isolating or segregating the individual from others; and (c) depriving the individual of many basic freedoms.

56In 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 imprisonment. For example, house arrest as a form of "conditional sentence of imprisonment" ( Criminal Code , s. 742.1(a)) qualifies as "imprisonment" for the purposes of the Criminal Code , even though it does not involve incarceration. Similarly, a sentence of imprisonment can involve a period of community supervision, such as parole. ##### (b) Disciplinary Segregation and Loss of Earned Remission Are Forms of Imprisonment

57In 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.

58As 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]risoner isolation or separation, or the use of a room or cell, to hold a prisoner away from the general institutional population" (Jackson, at p. 5). This is the very definition of imprisonment.

59A 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 forms of imprisonment. ###### (i) Disciplinary Segregation

60The 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 of placing an inmate in "solitary confinement" for "not more than thirty days" ( Act to provide for the Maintenance and Government of the Provincial Penitentiary, erected near Kingston, in the Midland District , S.U.C. 1834, 4 Will. 4, c. 37, s. 27).

61Since 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 in its early days, the Brown Commission of 1848 recommended the adoption of "the separate system of imprisonment" or "solitary confinement" as a disciplinary measure ( Reports of the Commissioners Appointed to Inquire Into the Conduct, Discipline, & Management of the Provincial Penitentiary (1849), at pp. 3 and 17). The use of the language of "solitary confinement" and "imprisonment" reflects the understanding at the time that segregation is itself a form of imprisonment.

62Reliance 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 restraint as may be necessary, with or without hard labour" as a punishment (Jackson, at p. 36). The 1892 Annual Report of the Minister of Justice used the term "imprisonment" to describe disciplinary confinement: "Imprisonment for a term not exceeding 30 days in the separate cells" ( Report of the Minister of Justice as to Penitentiaries in Canada for the Year Ended 30th June 1892 (1893), at No. 18, p. 99).

63In 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 used the term "imprison" to describe the placement of a prisoner in this facility: 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 a period not exceeding six months. (Jackson, at p. 37, quoting Rules and Regulations Respecting Prisoners of Isolation and the Punishment and Government of Convicts , s. 1.)

64Government 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, was "the most severe disciplinary measure available" ( Report of the Commission of Inquiry Into Certain Disturbances at Kingston Penitentiary During April, 1971 (1972), at p. 26).

65As 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" (1987), in Influences on Canadian Correctional Reform: Working Papers of the Correctional Law Review, 1986 to 1988 (2002), at p. 185).

66This 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 produces an effect on the inmate that is equivalent to a sentence of incarceration: it confines the inmate to a cell and restricts their freedom of movement and their freedom to associate with others.

67This 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, they are confined to a cell. Their freedom of movement is severely restricted and they are isolated from the general population. ###### (ii) Loss of Earned Remission

68Remission 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 Kerr, at p. 58). The loss of earned remission therefore increases the length of time spent in detention.

69For 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 granted, it shortens the sentence" (ibid.). The symmetry of this description is apt: if earned remission shortens a sentence, then loss of earned remission lengthens it. Accordingly, the Commission recommended that "earned remission should be carefully supervised because, according to our view, . . . the deprivation of earned remission is imprisonment" (ibid.).

70Recognizing 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 following a disciplinary hearing ( Report of the Commission of Inquiry Into Certain Disturbances at Kingston Penitentiary During April, 1971 (1972), at p. 30).

71The 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 proceedings might even be expected in cases of loss of remission, as it "is the most disruptive of liberty interests of all the existing sanctions" (ibid.).

72The 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 can be very serious, as it means spending more time in custody" (Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard), vol. 54, No. 6A, 1st Sess., 27th Leg., December 13, 2011, at p. 177).

73The 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 on the day on which the unexpired portion of the sentence equals the remission standing to the prisoner's credit". The effect of this provision is that earned remission entitles a prisoner to earlier release; loss of earned remission delays release.

74This 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 imprisonment: rather than serving an additional term in a segregated cell, the inmate serves an additional term in the general population. Either way, the inmate is subject to further incarceration. ###### (iii) Summary

75In 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 freedom of movement and places them in a more segregated and isolated state. Loss of earned remission is a distinct form of imprisonment because it extends the duration of the inmate's incarceration.

76Accordingly, 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 , it follows that major disciplinary offences in Saskatchewan engage s. 11 of the Charter .

77Finally, 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". This Court has used a narrow definition of "offence" to limit the range of proceedings to which s. 11 applies (see Wigglesworth , at p. 560 ; Guindon , at paras. 87-89 ). The question of whether a "charge" of an inmate disciplinary "offence" triggers s. 11 and its protections is a distinct question from the question of whether a given sanction constitutes a true penal consequence. #### (4) Section 68 of the Regulations Infringes Section 11(d) of the Charter

78Where 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] 3 S.C.R. 154 , at pp. 186-87 ; R. v. Chaulk , [1990] 3 S.C.R. 1303 , at p. 1333 ; R. v. Bernard , [1988] 2 S.C.R. 833 , at p. 849 ).

[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). ### C. Section 7 of the Charter Is Infringed

C. Section 7 of the Charter Is Infringed

80Even 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, necessarily requires proof beyond a reasonable doubt.

81In 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 (pp. 683-84).

82Lamer 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 R. v. Gardiner , [1982] 2 S.C.R. 368, was the sentencing stage of a criminal proceeding. In that context, Lamer C.J. noted that "aggravating facts in sentencing which are contested" must be established "beyond a reasonable doubt" ( Pearson , at p. 686 ). This is so because "the sentencing process poses the ultimate jeopardy to an individual" in the criminal process ( Pearson , at p. 686 ).

83The 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 would still apply under s. 7 (pp. 683 and 687).

84The 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) makes a moral judgment about an individual's conduct, with potential implications for how society views that individual; and (b) may impose severe liberty-depriving consequences as punishment. In my view, these are the relevant circumstances in which the presumption of innocence, protected under s. 7, will require the state to prove guilt beyond a reasonable doubt.

85This 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 because they did not require proof beyond a reasonable doubt. In concluding that they did not, this Court observed that the proceedings were "fundamentally different" in "character and purpose" from criminal proceedings and that review board decisions "do not involve moral judgments or stigma" ( Demers , at paras. 57-58 ).

86The 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 impose sanctions that are forms of imprisonment and therefore impose liberty-depriving consequences on an inmate that are equivalent in severity to a sentence of incarceration.

87Second, 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 offence proceedings are not, generally speaking, designed to redress wrongs to society as criminal proceedings are. However, it does not necessarily follow from this that disciplinary proceedings involve no moral judgment or that the finding of guilt has no moral element.

88For 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 and civil contempt is primarily one of procedure and forum, not of substance (paras. 18-19). Like civil contempt proceedings, major disciplinary proceedings characterize behaviour as wrongful and establish culpability for prohibited conduct; the finding of guilt in such proceedings involves a moral evaluation of the inmate's conduct.

89Similar 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 compliance with rules and norms that benefit the community. For example, offences under the Regulations include acts of physical or sexual violence, theft and destruction of property, introduction of controlled substances, and possession of weapons. These are essentially the same types of wrongdoing as criminal offences. Discipline panels make moral determinations about conduct and culpability for such behaviour.

[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. ### D. The Infringements Are Not Justified Under Section 1 of the Charter

D. The Infringements Are Not Justified Under Section 1 of the Charter

91The AGS has the burden of showing on a balance of probabilities that the limit on ss. 7 and 11(d) of the Charter is reasonable and demonstrably justified under s. 1 ( Oakes , at pp. 135 and 137). Under the Oakes test, s. 68's objective must be pressing and substantial and the means must be proportional, which requires that they be rationally connected to the objective, minimally impairing, and proportionate to the infringement (pp. 138-39).

92While JHS concedes that s. 68 of the Regulations has a pressing and substantial objective, there is some variation in how the parties articulate this objective. For example, JHS frames the purpose of using a balance of probabilities standard as the promotion of "expedition" in disciplinary proceedings (A.F., at para. 155), while the AGS suggests that this standard ensures "prompt resolution of disciplinary charges to ensure the orderly operation of correctional facilities" (R.F., at para. 123).

93To be of value in the Oakes test, the purpose of the infringing measure must be characterized appropriately (see Brown , at para. 116 ; Frank v. Canada (Attorney General) , 2019 SCC 1 , [2019] 1 S.C.R. 3, at para. 46 ). The purpose should not be framed so narrowly as to make it impossible to achieve, nor so broadly as to effectively justify any means (see Brown , at para. 116 ; Frank , at para. 46 ).

94In my view, the objective of using a standard of proof on a balance of probabilities is to promote the expeditious resolution of inmate disciplinary proceedings. I agree that this constitutes a pressing and substantial objective. This Court has recognized that "[p]rison order is both more necessary and more fragile than in even military and police contexts" ( Shubley , at p. 24). It is therefore important for proceedings to be conducted quickly so as to maintain order in correctional institutions. Given that approximately 3,367 hearings were held in 2019 in Saskatchewan, efficiency is of paramount importance in this context.

95A measure will be minimally impairing if there are not any less harmful means of achieving its objective "in a real and substantial manner" ( Brown , at para. 135 , quoting K.R.J. , at para. 70 , and Alberta v. Hutterian Brethren of Wilson Colony , 2009 SCC 37 , [2009] 2 S.C.R. 567, at para. 55 ).

96In 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 there is no evidence that its use has hindered the administration of those proceedings (see Corrections and Conditional Release Act , s. 43(3); Corrections and Conditional Release Regulations , SOR/92-620, s. 28). The fact that the federal government has used the standard of proof beyond a reasonable doubt in its inmate disciplinary proceedings is a meaningful point of comparison. It is telling that the federal government found no difficulties in using this standard and was not induced to change it.

[97] As a result, s. 68 of the Regulations fails the minimal impairment test and is not saved by s. 1 of the Charter . ### V. Conclusion

V. Conclusion

98When a person is charged with an offence punishable by disciplinary segregation or loss of earned remission, ss. 7 and 11(d) of the Charter require that the offence be proven beyond a reasonable doubt. To the extent that s. 68 of the Regulations permits findings of guilt for major disciplinary offences that may result in these sanctions on a lower standard of proof, it is inconsistent with the Charter .

[99] I would allow the appeal, set aside the judgments below, and declare s. 68 of the Regulations to be of no force or effect under s. 52 of the Constitution Act, 1982 , with costs throughout. JHS seeks special costs, but such costs are exceptional and are only awarded for "reprehensible, scandalous or outrageous" conduct ( R. v. C.P. , 2021 SCC 19 , [2021] 1 S.C.R. 679, at para. 64 ; Martineau v. Matsqui Institution Inmate Disciplinary Board , [1978] 1 S.C.R. 118 , at p. 129 ; Ontario (Attorney General) v. G , 2020 SCC 38 , [2020] 3 S.C.R. 629, at para. 143 ). Such conduct is not present here. Therefore, costs should be awarded as between party and party on the usual scale. --- The reasons of Côté, Rowe and Jamal JJ. were delivered by Côté J. — ## TABLE OF CONTENTS | | Paragraph | |---|---| | I. Overview | [100] | | II. Facts | [110] | | III. Judicial History | [117] | | A. Court of Queen's Bench of Saskatchewan, 2021 SKQB 287 (Layh J.) | [117] | | B. Court of Appeal for Saskatchewan, 2022 SKCA 144 , 476 D.L.R. (4th) 641 (Schwann, Tholl and McCreary JJ.A.) | [123] | | IV. Issues | [128] | | V. Analysis | [129] | | A. Should John Howard Society Be Permitted To Raise a New Issue on Appeal? | [129] | | B. How Should the Court Approach This Case? | [138] | | C. Does Section 11 of the Charter Apply to Saskatchewan's Inmate Disciplinary Proceedings? | [142] | | (1) Introduction | [142] | | (2) The Wigglesworth Test | [146] | | (a) The Criminal in Nature Prong of the Test | [148] | | (b) The True Penal Consequences Prong of the Test | [153] | | (c) Application of the Test in Wigglesworth | [158] | | (3) Application of Wigglesworth in Shubley | [159] | | (4) Is Shubley Still Good Law? | [161] | | (a) Governing Principles for Overturning a Precedent | [163] | | (b) Reasons Advanced To Overturn Shubley | [167] | | (c) Shubley Remains Good Law | [171] | | (i) Unworkability | [172] | | (ii) Erosion of Legal Foundation | [173] | | 1. Erosion of the Legal Foundation of the Criminal in Nature Prong | [173] | | 2. Erosion of the True Penal Consequences Prong | [177] | | D. Does Section 68 of the Regulations Infringe Section 11(d) of the Charter ? | [202] | | (1) Application of the Wigglesworth Test in This Case | [202] | | (a) The Criminal in Nature Prong of the Test | [204] | | (i) Objectives of the Legislation | [207] | | (ii) The Process Leading to the Sanction | [212] | | (iii) Conclusion on the Criminal in Nature Prong | [216] | | (b) The True Penal Consequence Prong of the Test | [219] | | (i) Purpose of the Sanction | [221] | | (ii) Consideration of the Impugned Sanctions | [227] | | 1. Segregation | [228] | | 2. Loss of Earned Remission | [234] | | (iii) Conclusion on the True Penal Consequences Prong | [238] | | (2) Conclusion: Neither Prong of the Wigglesworth Test Is Met | [240] | | E. Does Section 68 of the Regulations Violate Section 7 of the Charter ? | [241] | | (1) Step One: The Deprivation of Liberty | [245] | | (2) Step Two: Identify the Principle of Fundamental Justice | [246] | | (3) Step Three: Was the Deprivation in Accordance With the Principles of Fundamental Justice? | [249] | | (a) The Principles Governing Pearson | [256] | | (i) Determination of Guilt | [265] | | (ii) Serious Consequences Analogous to a Criminal Sentence | [270] | | (4) Inmate Disciplinary Records Should Only Be Used in Future Sentencing Hearings if Proven Beyond a Reasonable Doubt | [276] | | (5) The Procedural Guarantees of the Correctional Services Act Are Sufficient To Ensure a Fair Process | [279] | | (6) Conclusion on Section 7 | [291] | | F. Are Any Possible Infringements of Section 7 or Section 11(d) of the Charter Justified Under Section 1? | [292] | | VI. Conclusion | [293] | ## I. Overview

I. Overview

100This appeal poses the following question: To find that an inmate has committed a disciplinary offence under Saskatchewan's inmate disciplinary proceedings, does the Canadian Charter of Rights and Freedoms require proof beyond a reasonable doubt? I answer this question in the negative.

101This question was raised by the John Howard Society of Saskatchewan ("John Howard Society") after it was granted public interest standing to pursue an originating application seeking an order declaring that s. 68 of The Correctional Services Regulations, 2013 , R.R.S., c. C-39.2, Reg. 1 (" Regulations "), is of no force and effect.

102Section 68 provides that the standard of proof [1] for inmate disciplinary proceedings is that of a balance of probabilities. John Howard Society takes particular issue with the disciplinary sanctions of segregation and loss of earned remission.

103After the Saskatchewan Court of Queen's Bench and the Court of Appeal for Saskatchewan dismissed its s. 7 challenge, John Howard Society was granted leave to appeal to our Court. Since then, John Howard Society has added a new argument: Not only does s. 68 of the Regulations violate s. 7 of the Charter , but it also violates s. 11(d) of the Charter because inmate disciplinary proceedings are "criminal in nature" or have the potential to result in "true penal consequences".

104Our Court must first decide whether to hear the new issue relating to s. 11(d). If we do hear the new issue, we must then decide whether s. 11(d) applies to Saskatchewan's inmate disciplinary proceedings. If it does apply, we must decide whether s. 68 of the Regulations is in violation. If s. 11(d) does not apply, the Court must then turn to s. 7.

105I am of the view that our Court should hear the new issue, as this case meets the stringent test for hearing a new issue on appeal. As I explain later in these reasons, there is no concern with procedural prejudice, and the s. 7 analysis of the lower courts and the parties' arguments on that issue canvass many of the same considerations as the new s. 11(d) issue. Refusing to hear the new issue could also result in a potential injustice.

106That being said, I am of the view that s. 11(d) of the Charter does not apply to Saskatchewan's inmate disciplinary proceedings. This is because facing a charge of inmate misconduct is not the same as being "charged with an offence" within the meaning of s. 11 of the Charter . The Wigglesworth test does not characterize inmate misconduct proceedings as proceedings to which s. 11 applies.

107With respect to s. 7 of the Charter , I conclude that it is not infringed by Saskatchewan's inmate disciplinary proceedings. While s. 7 is implicated because of the evident engagement of an inmate's liberty interests, there is no infringement of the presumption of innocence as a principle of fundamental justice. This is because the procedural guarantees in the Saskatchewan legislation are sufficient to ensure a fair process and that the presumption of innocence is respected in the inmate disciplinary context.

108This case engages a narrow question, namely whether the standard of proof selected by Saskatchewan's legislature to apply to the inmate disciplinary proceedings in its correctional institutions violates the presumption of innocence protected under ss. 7 and 11(d) of the Charter . This is not a case about whether segregation or other forms of cruel treatment violate the Charter . Other Charter provisions may be relevant to that question.

[109] Having found no breach of s. 7 or s. 11(d), I would dismiss the appeal and uphold the rulings of the Court of Queen's Bench and the Court of Appeal in this matter. ## II. Facts

II. Facts

110John Howard Society is a non-profit corporation that, among other things, assists persons in their interactions with the criminal justice system. Part of its mandate is to advocate for humane conditions for persons who are incarcerated and to promote the safeguarding of their rights.

111The Government of Saskatchewan operates four provincial correctional centres, along with a remand centre for women. The inmate disciplinary system for offences that occur within those institutions is codified in The Correctional Services Act, 2012 , S.S. 2012, c. C-39.2 (" Act "), and in the Regulations .

112The standard of proof is set out in s. 68 of the Regulations : Burden of proof 68 A discipline panel shall not find an inmate responsible for a disciplinary offence unless it is satisfied on a balance of probabilities that the inmate committed that offence.

113The Inmate Disciplinary Hearing Manual describes this standard of proof in the following way: In theory, the balance of probabilities means an event either did or did not happen. In practice, there is some flexibility: the decision-maker(s) must determine, based on the evidence before them, whether it is more likely than not that the event happened. Essentially, the question the discipline panel must ask is whether the evidence, facts and arguments demonstrate that it is more likely than not that the inmate committed the offence. (Saskatchewan, Adult Custody Services, Inmate Disciplinary Hearing Manual , June 8, 2021, at p. 25, reproduced in A.R., at p. 137.)

114In 2019, approximately 6,201 disciplinary charges were laid within Saskatchewan's four correctional centres for various offences, including: fights, assaults, staff assaults, possession of weapons, possession of other contraband, impairment, disobeying orders, and unauthorized presence in restricted areas (affidavit of Lindsay Tokaruk, reproduced in A.R., at p. 194). That same year, 3,367 disciplinary hearings were held, averaging about 9 per day (ibid.).

115Disciplinary sanctions are set out in the Act and differ in severity based on whether the offence in question was major or minor. For major offences, the sanctions vary: loss of privileges, segregation to a cell, or even forfeiture of a period of earned remission of up to 30 days. The discipline panel may combine sanctions, but the combined periods of segregation cannot exceed 30 days. For minor offences, a verbal reprimand or warning is the most serious sanction.

[116] Before the courts below, John Howard Society argued that s. 68 of the Regulations violates s. 7 of the Charter because it allows for disciplinary offences allegedly committed by an inmate in a correctional facility to be proven merely on a balance of probabilities. John Howard Society did not contest that s. 11 of the Charter does not apply to inmate disciplinary proceedings; it relied solely on s. 7 of the Charter in the courts below. ## III. Judicial History ### A. Court of Queen's Bench of Saskatchewan, 2021 SKQB 287 (Layh J.)

III. Judicial History

117The application judge dismissed the application, holding that the standard of proof beyond a reasonable doubt is not a principle of fundamental justice in the inmate disciplinary context and therefore s. 68 of the Regulations does not violate s. 7 of the Charter .

118In reference to the legislative framework and the disciplinary process laid out therein, the application judge considered whether John Howard Society had successfully established that a principle of fundamental justice — an existing or a novel one — requires the reasonable doubt standard to be used in inmate disciplinary proceedings under s. 7.

119The application judge canvassed Charter decisions dealing with s. 11. He noted that John Howard Society conceded that s. 11(d) did not apply. He cited Shubley as conclusively holding that s. 11 rights do not apply to prison discipline. He noted that courts in other provinces had also concluded that s. 11 does not apply to inmate disciplinary proceedings.

120As regards the standard of proof, the application judge held that merely calling a finding in a proceeding a finding of "guilt" cannot be determinative of the standard of proof. He explained that conduct that attracts consequences — even conduct characterized as "wrongdoing" — is not automatically subject to the standard of proof required in a criminal proceeding.

121With respect to the nature of the penalties, the application judge felt bound to the majority's holding in Shubley and found nothing in the evidence to suggest that "segregation" should be equated to "solitary confinement" or "dissociation" (para. 75). He concluded that s. 68 of the Regulations did not violate s. 7 of the Charter .

[122] The application judge canvassed other jurisdictions to survey the various standards of proof for prison disciplinary offences, noting that only the legislation governing federal penitentiaries requires proof beyond a reasonable doubt. In Manitoba, the standard of proof for inmate disciplinary proceedings is a balance of probabilities, and the Manitoba courts have upheld this standard. ### B. Court of Appeal for Saskatchewan, 2022 SKCA 144 , 476 D.L.R. (4th) 641 (Schwann, Tholl and McCreary JJ.A.)

B. Court of Appeal for Saskatchewan, 2022 SKCA 144 , 476 D.L.R. (4th) 641 (Schwann, Tholl and McCreary JJ.A.)

123The Court of Appeal dismissed the appeal and upheld the lower court's decision that s. 68 of the Regulations does not violate s. 7 of the Charter . The Court of Appeal held that the first step of the two-step process in Carter v. Canada (Attorney General) , 2015 SCC 5 , [2015] 1 S.C.R. 331, was met — s. 7 was engaged — as it was agreed upon by the parties.

124When dealing with determining the second part of the test — whether the interference with or deprivation of liberty accords with the principles of fundamental justice — the Court of Appeal found that the presumption of innocence as a principle of fundamental justice does not require proof beyond a reasonable doubt in the context of inmate disciplinary proceedings, having regard to the nature and extent of the consequences.

125The Court of Appeal undertook its analysis against the backdrop of the overall purpose of the inmate discipline regime. It did this by examining what is at stake for an inmate who is subject to the disciplinary process and the nature of the sanctions available to the discipline panel. The Court of Appeal noted that the legislative scheme is designed to maintain order within Saskatchewan's correctional institutions rather than to provide punitive measures designed to redress public wrongs.

126Like the application judge, the Court of Appeal considered whether conduct that attracts a "consequence" should be proven beyond a reasonable doubt in non-criminal proceedings. John Howard Society had argued that R. v. Pearson , [1992] 3 S.C.R. 665, and R. v. Demers , 2004 SCC 46 , [2004] 2 S.C.R. 489, stand for the proposition that the reasonable doubt standard is required when a person's liberty is deprived in the context of moral condemnation with serious consequences.

[127] The court found that the latter was especially true in the face of Shubley , as that case was adjudicated against the backdrop of the prison discipline regime. The Court of Appeal found that the s. 11 analysis from Shubley was relevant to the s. 7 analysis. It agreed with the application judge that the standard of proof is but one factor in the overall assessment of the constitutional adequacy of the procedural regime. ## IV. Issues

IV. Issues

[128] The issues on appeal are as follows: 1. Should John Howard Society be permitted to raise a new issue on appeal? 2. How should the Court approach this case? 3. Does s. 11 of the Charter apply to Saskatchewan's inmate disciplinary proceedings? 4. Does s. 68 of the Regulations infringe s. 11(d) of the Charter ? 5. Does s. 68 of the Regulations violate s. 7 of the Charter ? 6. If s. 68 of the Regulations infringes s. 7 or s. 11(d) of the Charter , is that infringement justified under s. 1 ? ## V. Analysis ### A. Should John Howard Society Be Permitted To Raise a New Issue on Appeal?

V. Analysis

129This question pertains to a new constitutional issue raised before this Court. John Howard Society concedes that the question of whether Shubley remains good law — and by extension whether s. 68 of the Regulations infringes s. 11(d) of the Charter — was not raised in the courts below (Appellant's factum, at para. 50).

130That being said, whether to hear a new constitutional issue on appeal is a matter of discretion for our Court, as was reiterated in Guindon v. Canada , 2015 SCC 41 , [2015] 3 S.C.R. 3. Pursuant to Guindon , at para. 22 , the Court can use its discretion to hear a new issue when: (1) Doing so will cause no procedural prejudice to the opposing party. (2) The refusal to consider the issue would risk an injustice.

131The test is a stringent one, as the Court's discretion should not be exercised "routinely or lightly" ( Guindon , at para. 22 ). The Court may take multiple considerations into account when assessing whether it should hear a new issue, including but not limited to: procedural prejudice, the state of the record, and the interest of justice ( Guindon , at paras. 22-24 ).

132Although our Court will agree to hear a new question only in one of those "rare cases" ( Guindon , at para. 37 ; R. v. Bird , 2019 SCC 7 , [2019] 1 S.C.R. 409 , at para. 147 ), I am of the view that it should exercise its discretion and decide the new constitutional issue in the present case.

133With respect to the state of the record, both the respondent and the intervener the Attorney General of Quebec argue that it would be unwise for our Court to decide a new question that raises the issue of overturning a precedent without having the benefit of additional evidence specific to the new issue. I am not persuaded by these arguments.

134Further, given that it is John Howard Society that is asking this Court to overturn one of its precedents, it, therefore, has the burden to produce evidence supporting the evolution in the foundational legislative and social facts in relation to the precedent it seeks to overrule. This is especially so since both the application judge and the Court of Appeal took note of, and applied, Shubley in coming to their conclusions. John Howard Society had the opportunity to put any additional evidence it deemed necessary on the record at the courts below but chose not to.

135Regarding the question of procedural prejudice, it should first be noted John Howard Society issued a notice of constitutional question, including the new issue, on February 9, 2024 (A.R., at p. 73). Therefore, the respondent cannot reasonably claim that it was unaware of the issue. In addition, the record in this case is extensive, including a lengthy affidavit of facts and accompanying exhibits (A.R., at pp. 176-198) and a long cross-examination on that affidavit. Furthermore, the parties have had the benefit of extensive submissions on the new issue from several interveners representing a variety of interests.

136Refusing to hear this new question would also be incompatible with the broader interest of the administration of justice and may cause a potential injustice. First, there is a risk of unnecessary expense and delay in not considering the question of whether s. 11 applies and the related question of whether Shubley remains good law. Second, it is possible that the new issue will be determinative in this case. If s. 11(d) applies and s. 68 of the Regulations violates it, there is no need to analyze the s. 7 issue. Conversely, if s. 11(d) does not apply, the Court must address the s. 7 issue.

[137] I will now proceed to address the constitutional issues by first examining the appropriate methodology for assessing infringements under s. 7 and s. 11(d) of the Charter . ### B. How Should the Court Approach This Case?

B. How Should the Court Approach This Case?

138Before our Court, not only did John Howard Society choose to raise a new issue on appeal respecting s. 11(d), but it presented this claim as the main one, thus relegating the claim under s. 7 to a residual analysis in case Shubley were to be upheld. The question of how to order the analytical framework between ss. 7 and 11(d) of the Charter is important.

139Our Court has written extensively on s. 7 in relation to the specific provisions of ss. 8 to 14 of the Charter . In fact, in Re B.C. Motor Vehicle Act , [1985] 2 S.C.R. 486, the Court concluded that ss. 8 to 14 "are illustrative of deprivations of those rights to life, liberty and security of the person in breach of the principles of fundamental justice" and that "s. 7 may be found to be violated in situations not covered by ss. 8 to 14" (p. 503). Although this statement was limited to ss. 8 to 14, the same principle applies as between ss. 7 and 11, including s. 11(d) ( R. v. J.J. , 2022 SCC 28 , at para. 112 ; R. v. Brunelle , 2024 SCC 3 , at para. 44 ; see also Auer v. Auer , 2024 SCC 36 , at para. 39 ).

140The more particular question of how to analyze Charter breaches when violations are alleged under both s. 7 and s. 11 is discussed in J.J. In that case, Wagner C.J. and Moldaver J., writing for the majority, held that since s. 7 and s. 11(d) overlap in the context of the presumption of innocence, the analysis in this area should begin with s. 11(d) (para. 112). This conclusion is consistent with the approach described in Re B.C. Motor Vehicle Act (para. 503): where a specific right applies, the analysis should begin with it. Section 7 remains available as a residual protection, but courts should analyze allegations under ss. 8 to 14 — including s. 11(d) — first. If those sections do not apply or do not cover the entire scope of the relevant right, the court should proceed to s. 7 ( J.J. , at paras. 112 and 115 ).

[141] In the present case, the question of the analytical framework for s. 7 and s. 11(d) arises from a different angle. In J.J. , it was not disputed that both s. 7 and s. 11(d) could be invoked by the respondent in order for the Court to assess whether the right to a fair trial was respected. Rather, the question concerned the proper framework for assessing whether the right had been infringed. In the present case, the fundamental question is whether s. 11(d) applies to inmate disciplinary proceedings at all. This is because the parties agreed at the courts below that s. 11(d) did not apply and John Howard Society argued its case only under s. 7. Before this Court, John Howard Society chose to argue both ss. 7 and 11(d) but made the s. 11(d) argument the main one. Since John Howard Society could have argued the s. 11(d) issue at the courts below but chose not to, the reliance on both ss. 7 and 11(d) in this Court does not compel the parties to abandon the analytical framework that was used in the proceedings below. ### C. Does Section 11 of the Charter Apply to Saskatchewan's Inmate Disciplinary Proceedings? #### (1) Introduction

C. Does Section 11 of the Charter Apply to Saskatchewan's Inmate Disciplinary Proceedings?

142Section 11 of the Charter contains a variety of procedural protections for persons "charged with an offence". The text reads as follows: 11 Any person charged with an offence has the right (a) to be informed without unreasonable delay of the specific offence; (b) to be tried within a reasonable time; (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal ; (e) not to be denied reasonable bail without just cause; (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment; (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations; (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;

143These protections are available to those charged with criminal offences. In Wigglesworth , Wilson J. wrote that 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 and penal matters" (p. 559). The concern was to distinguish the criminal law context from the administrative and regulatory contexts so as to avoid the imposition of criminal-type procedural requirements in the latter contexts.

144An offence under the Criminal Code , R.S.C. 1985, c. C-46, will always attract the application of s. 11. To determine whether s. 11 applies to another process, a court must ask whether the "proceeding is, by its very nature, criminal" or whether the proceeding could give rise to a "true penal consequence" ( Wigglesworth , at pp. 559-60 ).

145Maintaining this distinction between the criminal law context and the administrative and regulatory contexts is in keeping with our Court's deliberate adoption of a "somewhat narrow definition of the opening words of s. 11" ( Wigglesworth , at p. 560 ). #### (2) The Wigglesworth Test

146Deciphering when a proceeding is by its very nature criminal or where a true penal consequence flows from the sanction is not always straightforward. As noted, there can be occasions where a proceeding or a sanction arising from that proceeding straddles the line between criminal and administrative, making it all the more important to have a principled test for this determination.

147In Wigglesworth , the question centred on whether a "major service offence" heard before the RCMP Service Court engaged s. 11. While the RCMP Service Court was not a criminal court, the proceedings could have given rise to a sanction of up to one year of imprisonment. Wilson J. developed two distinct prongs of a test in order to delineate when a matter will attract the protections of s. 11. ##### (a) The Criminal in Nature Prong of the Test

148To satisfy the criminal in nature prong, the proceeding in question lies at the heart of the analysis. The underlying act which gave rise to the proceeding is not relevant.

149When considering the nature of the proceeding, it is important to bear in mind the jurisprudential backdrop. As Wilson J. stated in Wigglesworth , to attract s. 11 protection, the matter must be "intended to promote public order and welfare within a public sphere of activity" (p. 559). The matter must be "intended to be dealt with according to the tenets of criminal law and procedure and must be punishable by sanctions having a truly penal purpose and character, such as a fine so substantial that it would appear to be imposed for the purpose of redressing a wrong done to society rather than simply to maintain internal discipline" ( Wigglesworth , at p. 560 ).

150In our Court's most recent pronouncement on this prong of the test, in Guindon , Rothstein and Cromwell JJ., writing for the majority, found that Ms. Guindon was not "charged with an offence" within the meaning of s. 11 when the Minister of National Revenue imposed civil penalties on her under the Income Tax Act , R.S.C. 1985, c. 1 (5th Supp.). The majority held as follows: The criminal in nature test asks whether the proceedings by which a penalty is imposed are criminal. The test is not concerned with the nature of the underlying act. As Wilson J. stated in Wigglesworth , the test is whether a matter "fall[s] within s. 11 because of its very nature" (p. 558). The criminal in nature prong focuses on the process, not the subject matter. This means that we are not looking for proceedings which concern a specific type of subject matter, but rather proceedings which are of a specific type. Section 11 contains terms which are classically associated with criminal proceedings: "tried""presumed innocent until proven guilty""reasonable bail""punishment for the offence""acquitted of the offence" and "found guilty of the offence". Indeed, as McLachlin J. noted in Shubley , s. 11 "was designed to protect individuals from the exceptional power of the state when it acts in the criminal law sphere" ( [1990] 1 S.C.R. 3, at p. 15 ). ( Guindon , at paras. 62-63 )

151It is clear that the nature of the proceeding is the sole and central focus of this prong. Both Martineau and Guindon provide helpful general guidance as to how to carry out an analysis under this prong. Despite the fact that Martineau concerned a tax regulatory penalty and Guindon concerned a civil penalty under the Income Tax Act , they provide helpful guidance because they canvass the contours of the criminal in nature test.

152In Martineau , Fish J. identified three criteria as helpful to consider under this prong: (1) the objectives of the legislation; (2) the purpose of the sanction; and (3) the process leading to the sanction (paras. 19-24). It is important to emphasize that these criteria are illustrative; the ultimate question is whether the proceeding is criminal in nature. ##### (b) The True Penal Consequences Prong of the Test

153While the criminal in nature prong involves an examination of the nature of the proceeding, the true penal consequences prong involves an examination of the purpose of the sanction in connection with its magnitude, although, as I explain below, the purpose is the primary consideration.

154Differentiating the purposes of penalties is important in the determination of whether a sanction arising from a proceeding is a "true penal consequence". In Wigglesworth , Wilson J. opted to use the phrase " true penal consequences" rather than the phrase "imprisonment or a fine so substantial as to appear to be imposed for the purpose of redressing a wrong done to society" in order to reflect in a principled and more workable way the nature of the consequences that give rise to s. 11 protections. The use of the word "true" describes the nature of what is required: a sanction whose purpose is to punish and whose punishment is of a serious nature.

155In addition to the purpose, the magnitude of the sanction is relevant to the analysis, but not determinative ( Guindon , at para. 77 ). Regard must be had to whether the magnitude of the sanction is determined by regulatory considerations rather than punitive ones, and whether the sanction's size or duration is commensurate with a purely regulatory purpose or exceeds that purpose and has a punitive character ( Guindon , at paras. 77-78 ).

156Our Court has previously recognized the high bar required to attract the application of s. 11 in non-criminal matters, as stated in R. v. K.R.J. , 2016 SCC 31 , [2016] 1 S.C.R. 906, at para. 38 : . . . the "true penal consequence" test sets an indisputably high bar, it was developed to determine whether a person is nonetheless "charged with an offence" even if he or she is the subject of proceedings outside the criminal context. Within the criminal context itself, a conviction already triggers the application of s. 11.

157This underscores that the test seeks to preserve the narrow focus of s. 11 on procedural protections within the criminal law context. When it comes to conducting a s. 11 analysis, this backdrop is important to bear in mind. Similarly important to bear in mind is the fact that this Court has historically adopted a "somewhat narrow definition of the opening words of s. 11" ( Wigglesworth , at p. 560 ). ##### (c) Application of the Test in Wigglesworth

158In Wigglesworth , Wilson J. held that the RCMP internal proceedings were not "criminal in nature" because they were designed to "regulate conduct within a limited private sphere of activity" (p. 562). While the first prong of the test was not satisfied, the proceeding engaged s. 11 because of the possible sanction: a term of imprisonment of up to one year. As Wilson J. stated"[t]he risk of imprisonment" is a "true penal consequence" because it falls within "[t]he most severe deprivation of liberty" (pp. 560-61). This is so regardless of whether the proceeding is otherwise administrative or criminal in nature. #### (3) Application of Wigglesworth in Shubley

159The Wigglesworth test formed the basis of the analysis in Shubley . In that case, the issue was whether Ontario's inmate disciplinary proceedings attracted the application of s. 11. Under the Ontario regime, when an inmate was subject to a disciplinary hearing, possible sanctions included (1) forfeiture of earned remission up to 30 days, (2) cellular confinement up to 30 days, and (3) loss of privileges up to 30 days.

160To determine whether the inmate discipline regime existing in Ontario at that time attracted the protection of s. 11, our Court applied the Wigglesworth test. Writing for the majority, McLachlin J. held that the criminal in nature prong was not met because "the purpose of such proceedings is not to redress a wrong done to society as a whole but, rather, to maintain order and discipline within the prison" (pp. 18-19). On the true penal consequences prong, McLachlin J. concluded that disciplinary segregation and loss of earned remission are "not a separate sanction" but "part of the matrix of conditions of imprisonment" (p. 23). They are parts of the "conditions" of imprisonment rather than additional "sentences" of imprisonment. Therefore, McLachlin J. concluded that neither satisfied the true penal consequence test. #### (4) Is Shubley Still Good Law?

161When seeking leave to this court, John Howard Society expressly acknowledged that Shubley "found that s. 11 does not apply to inmate discipline proceedings" (Appellant's memorandum of argument, reproduced in the application for leave to appeal, at para. 14). It also acknowledged at the time that "Shubley should be dispositive".

162John Howard Society argues that the threshold for overturning a precedent has been met. This issue must first be addressed before deciding on the applicability of s. 11. For the reasons that follow, I am of the view that John Howard Society has not met this threshold. ##### (a) Governing Principles for Overturning a Precedent

163The principle of stare decisis is a foundational doctrine that calls on courts to stand by previous decisions and not disturb settled matters. This doctrine promotes legal certainty and stability ( Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653 , at paras. 20 , 270 and 281; R. J. Sharpe, Good Judgment: Making Judicial Decisions (2018), at p. 147), the rule of law ( Vavilov , at paras. 260 and 281 ), and the legitimate and efficient exercise of judicial authority ( Watkins v. Olafson , [1989] 2 S.C.R. 750 , at pp. 760-61) . It requires judges to give effect to legal principles that are well settled and depart from them only when there is a proper basis for doing so.

164Under the framework advanced by John Howard Society, there are three bases on which to depart from a precedent: (1) the precedent at issue was rendered without regard to a binding authority or a relevant statute, per incuriam ; (2) the precedent has proven unworkable; or (3) the precedent's rationale has been eroded by societal or legal change. Only the last two are at issue in this appeal.

165To be "unworkable", a precedent must undermine at least one of the purposes that stare decisis is intended to promote: legal certainty, the rule of law, and judicial efficiency. Legal certainty will be undermined when a precedent is "unclear in its terms, difficult to apply in practice, or gives rise to uncertainty in terms of what it requires" ( Sullivan , at para. 70 ). The rule of law will be undermined when a precedent "leads to arbitrary, unprincipled or absurd results" (ibid.). Judicial efficiency will be undermined when a precedent "requires constant qualification in subsequent cases" or "regularly produces unjust results that must be ameliorated by other means" (ibid.).

166To meet the threshold of foundational erosion, a party seeking to overturn a precedent must demonstrate either (1) societal change or (2) legal change. A societal change can include when fundamental change to societal conditions in the social, moral, or economic sphere warrants reconsidering the precedent ( Sullivan , at para. 70 , citing Carter v. Canada (Attorney General) , 2015 SCC 5 , [2015] 1 S.C.R. 331, at para. 44 ). A legal change can include when a "line of cases" has "undermined the theoretical basis of that precedent" ( Sullivan , at para. 70 ; see also Auer v. Auer , 2024 SCC 36 , at para. 51 ). ##### (b) Reasons Advanced To Overturn Shubley

167John Howard Society urges us to overturn Shubley on the basis that it has become "unworkable" and because its holding has been subject to "foundational erosion". It says that two trends underlie the latter ground: first, that the criminal in nature prong has evolved since Shubley ; and second, that the true penal consequences prong has similarly evolved.

168First, regarding "unworkability", by denying the application of s. 11 to inmate disciplinary proceedings, Shubley has left such proceedings subject to Charter scrutiny under s. 7 only. This has led to inconsistency, since each province has been developing its own standards under s. 7. John Howard Society therefore argues that Shubley 's restriction of the applicable Charter protections to s. 7 is "unworkable" because it has led to a "patchwork" of provisions with uneven procedural protections across the country.

169Second, regarding "foundational erosion", John Howard Society suggests that the Wigglesworth test has evolved since its application in Shubley , so much so that the result would be different today. With respect to the criminal in nature prong, it says that Martineau changed the focus of the criminal in nature prong away from the nature of the proceeding and towards the nature of the underlying act, thus altering the result under this prong. With respect to the true penal consequences prong, it says that the subsequent jurisprudence of our Court on punishment — particularly in the context of ss. 11(h) and (i) of the Charter — has cast doubt on the formalistic distinction between sentence and conditions of imprisonment that is at the core of Shubley .

170For its part, the majority finds that Shubley 's conclusion that disciplinary segregation and loss of earned remission are not true penal consequences was formed on the basis of an overly formalistic distinction between the sentence of imprisonment and the conditions of imprisonment. In the view of the majority, this distinction has been eroded by the more purposive approach to constitutional interpretation that our Court has consistently applied since Shubley . I disagree with this reasoning, as I explain below. ##### (c) Shubley Remains Good Law

171If Shubley remains good law , it is a precedent that binds our Court to find that neither loss of earned remission nor disciplinary segregation in the inmate disciplinary context satisfies the true penal consequences prong of the Wigglesworth test. ###### (i) Unworkability

172John Howard Society's first argument — that Shubley has led to a patchwork of provisions and uneven procedural protections across the country resulting from different statutory schemes and varying standards under s. 7 — does not meet the bar for "unworkability". While it is true that Shubley 's application of Wigglesworth has led to a legal landscape where the s. 7 protections available to inmates subject to disciplinary proceedings vary from province to province, this variation is not a result of the applicable legal standard but rather of the factual differences between provincial disciplinary regimes. Shubley established a clear and workable legal standard for assessing the constitutional adequacy of inmate disciplinary regimes. Furthermore, the mere fact that the present case is under s. 7 does not mean Shubley is unworkable. Rather, it is perfectly consistent with how matters that are not truly criminal in nature are regulated by s. 7 , as distinguished from s. 11 . ###### (ii) Erosion of Legal Foundation 1. Erosion of the Legal Foundation of the Criminal in Nature Prong

173John Howard Society's second argument — that Shubley is subject to foundational erosion — is equally unconvincing. To make this point, John Howard Society first submits that the criminal in nature prong of the Wigglesworth test has been reformulated in subsequent jurisprudence, specifically in Martineau and Guindon . In its view, Martineau changed the focus of this prong from the nature of the proceeding to the nature of the underlying act.

174I do not agree. Neither Martineau nor Guindon changed the focus of the criminal in nature prong, which remains squarely on the nature of the proceeding. In both cases, our Court highlighted that the relevant consideration is not the underlying act that gave rise to the proceeding but the nature of the proceedings themselves. The factors identified in Martineau — the objectives of the legislation, the purpose of the sanction, and the process leading to the sanction — are all focused on the nature of the proceedings. This is consistent with the focus established by Wilson J. in Wigglesworth and affirmed in Shubley .

175John Howard Society has not demonstrated a "line of cases" that has "undermined the theoretical basis" of Shubley 's application of the criminal in nature prong of the Wigglesworth test ( Sullivan , at para. 70 ). As a result, the criminal in nature prong of the test remains the same as it was when Shubley was decided. If anything, the subsequent jurisprudence of our Court has reinforced the focus of this prong on the nature of the proceeding, not the underlying act or the severity of the sanction.

176Accordingly, a change in the application of the criminal in nature prong of the Wigglesworth test cannot be said to constitute a ground for overturning Shubley . 2. Erosion of the True Penal Consequences Prong

177I will now address whether the true penal consequences prong has undergone the requisite foundational erosion since Shubley was decided. While John Howard Society has focused its argument on s. 11(h) and (i) jurisprudence as support for foundational erosion, the majority focuses on habeas corpus jurisprudence as the main basis for erosion.

178John Howard Society submits that the Court's jurisprudence under ss. 11(h) and (i) of the Charter — especially Whaling and K.R.J. — has eroded the true penal consequences prong of the Wigglesworth test. It argues that the broad interpretation of "punishment" in Whaling has undermined the core distinction in Shubley between sentence and conditions of imprisonment.

179I am not persuaded. Shubley turned on whether the sanctions in issue constituted "true penal consequences" under the Wigglesworth test's second prong — not on whether they constituted "punishment" under ss. 11(h) and (i). The question whether loss of earned remission or disciplinary segregation constitutes "punishment" under ss. 11(h) and (i) is distinct from the question whether those sanctions constitute "true penal consequences" for the purposes of s. 11 in general.

180Moreover, I note that Whaling dealt with whether retrospective changes to earned remission constitute "punishment" for the purposes of the double jeopardy provision in ss. 11(h) and (i), not whether a particular sanction constitutes a true penal consequence for the purposes of the threshold question of s. 11's applicability. These are distinct inquiries.

181The majority finds that the basis for Shubley 's conclusion has eroded because of the subsequent recognition that an inmate retains their civil rights after being sentenced to a term of imprisonment, an evolution evidenced by three cases concerning habeas corpus: Miller , Morin , and Cardinal . I have a number of concerns about this aspect of the majority's reasons.

182First, the majority relies on Miller , Morin , and Cardinal to support its view that the law has evolved in a direction inconsistent with Shubley . However, I note that all three habeas corpus cases in question were decided before Shubley . McLachlin J. was aware of this line of jurisprudence when she wrote the majority reasons in Shubley , and she said nothing to suggest that Shubley was inconsistent with the recognition that inmates have residual rights.

183Second, the majority also relies on the evolution in the "conditions of imprisonment" aspect of s. 7 jurisprudence, pointing in particular to Cunningham . However, Cunningham was also decided before Shubley . The Shubley majority was aware of this line of jurisprudence as well.

184Third, the majority relies on Whaling and K.R.J. to support its conclusion. With respect, neither of those cases changed what constitutes a "true penal consequence" under the Wigglesworth test. Whaling concerned the double jeopardy protection under s. 11(h), and the Court there was not asked to reconsider the true penal consequences prong of the Wigglesworth test. K.R.J. too concerned the "punishment" analysis under s. 11(h).

185Fourth, the majority relies on the fact that the Court has never "reaffirmed the idea that 'imprisonment' under the true penal consequence test is limited to a formal sentence of imprisonment" since Shubley. With respect, the absence of reaffirmation does not constitute foundational erosion, especially when the precedent to be overturned is a clear and direct authority on the very question at issue.

186Fifth, the majority invokes the concept of formalism in order to find that Shubley 's reasoning is no longer good law. Formalism involves an "excessive adherence to matters of form at the expense of substance" (majority reasons, at para. 36). I acknowledge the force of this concept, and courts have used it to good effect in correcting reasoning that has proven deficient. However, the issue is whether Shubley 's reasoning truly was formalistic in the relevant sense.

187Sixth, the majority reasons conclude that Shubley is no longer good law because its reasoning is inconsistent with the evolution of Charter jurisprudence away from a formalistic approach. Yet, the majority provides no "line of cases" that has directly undermined the theoretical basis of Shubley , as is required for foundational erosion, according to Sullivan (para. 70). Instead, the majority weaves together a collection of cases from different contexts to make the point that the Court has over time become more expansive in its interpretation of constitutional rights. This approach is, with respect, too broad.

188The true penal consequences prong turns on the purpose of the sanction. In Guindon , the Court explained that the true penal consequences prong identifies sanctions "whose purpose is to redress a wrong done to society" or "to impose a true punishment or to redress a public wrong" ( Guindon , at para. 76 ). The key word is "purpose". The sanction's purpose, not its severity, is the primary consideration under this prong.

189In both Whaling and K.R.J. , the Court did not substantially depart from the purpose-based analysis for the true penal consequence prong. Rather, it applied that analysis in the context of the particular ss. 11(h) and (i) purposes of the sanction. The purpose of changes to earned remission at issue in Whaling and K.R.J. was to make sentences more severe — to punish more harshly. That is exactly a sanction whose purpose is to punish.

190With this in mind, the cases cited by John Howard Society for the proposition that Shubley has been subject to foundational erosion can be categorized as follows. First, the cases pertaining to ss. 11(h) and (i) of the Charter — Whaling , K.R.J. , Rodgers , and Zinck — do not themselves amount to the foundational erosion required to justify overturning Shubley . Those cases did not involve inmate disciplinary proceedings; they concerned a different prong of s. 11 and are analyzing the concept of "punishment" — not "true penal consequence" — under a different analytical framework.

191Second, I turn to the cases cited by John Howard Society for the proposition that the Court has evolved its understanding of inmate rights. These cases — such as May , Chhina , and Cunningham — do establish that the law has evolved to recognize that inmates retain important rights, including s. 7 rights. However, this evolution in no way undermines the reasoning in Shubley , which itself acknowledged the importance of the rights that inmates retain. As the majority in Shubley explained, the fact that s. 11 does not apply to inmate disciplinary proceedings does not mean that inmates are without Charter protection; they have the residual protection of s. 7 .

192Third, I turn to the argument that the purpose of segregation or loss of remission has become more punitive since Shubley . I note that, in Shubley , McLachlin J. characterized the sanctions as being "part of the matrix of conditions of imprisonment" rather than "a separate sanction" (p. 23). In my view, this characterization remains accurate today. The purpose of imposing these sanctions has not changed. They are still intended to maintain order and discipline within correctional institutions, not to punish for the sake of punishment.

193Fourth, I turn to the majority's contention that the distinction between sentence and conditions of imprisonment is "formalistic". With respect, this characterization conflates the concept of formalism with a principled distinction. The distinction between a sentence of imprisonment and the conditions of imprisonment serves an important purpose: it ensures that the constitutional protections afforded to those who are "charged with an offence" — including the right to be presumed innocent — are not automatically extended to administrative proceedings within the prison context.

194This principled distinction is not formalistic because it is not "an excessive adherence to matters of form at the expense of substance" (majority reasons, at para. 36). Rather, it reflects the substance of the difference between criminal proceedings and administrative proceedings. The substance of this distinction is this: in criminal proceedings, the state brings the full force of society's condemnation against an individual, with the possibility of severe punishment; in administrative proceedings, the state makes decisions about an individual's situation, which may affect their liberty but which are not premised on public condemnation of criminal conduct.

195I acknowledge that the line between criminal and administrative proceedings can be difficult to draw. But that is precisely why the Court in Wigglesworth crafted the two-pronged test that focuses on both the nature of the proceeding and the nature of the potential sanction. The test is not perfect, but it provides a principled basis for distinguishing between criminal and administrative proceedings.

196In sum, while I agree that the Court has been moving away from formalistic interpretations in Charter jurisprudence, I do not agree that Shubley represents an example of an improperly formalistic interpretation that needs to be overturned. Shubley drew a distinction that serves an important constitutional purpose: it limits the application of s. 11 to proceedings that are truly criminal in nature, ensuring that administrative proceedings within the prison context are not unnecessarily burdened by criminal-type procedural requirements.

197For all these reasons, I conclude that Shubley has not been subject to foundational erosion. Its reasoning on the true penal consequences prong remains sound, and it should be applied in the present case.

198I would add that I find persuasive the conclusion expressed by this Court in K.R.J. that the true penal consequence test sets an "indisputably high bar" (para. 38). Given this high bar, there is a strong presumption that proceedings outside the criminal context will not attract the application of s. 11. This presumption is consistent with the Court's longstanding recognition of the need to maintain a meaningful distinction between the criminal law context and the administrative and regulatory contexts.

199Shubley considered whether disciplinary segregation and loss of earned remission constitute true penal consequences under the Wigglesworth test. Its conclusion that they do not remains sound. Given that Shubley remains good law, it is a precedent that binds the Court to find that the same conclusion applies in the present case, where the sanction is materially the same.

200I would add that even if Shubley were no longer good law, a fresh analysis of the Wigglesworth test would lead to the same conclusion. The focus of the true penal consequences prong of the test is on the purpose of the sanction, and the purpose of both disciplinary segregation and loss of earned remission in the inmate disciplinary context is to maintain order and discipline, not to impose punishment for public wrongs.

[201] Finally, I would note that this conclusion is consistent with how courts in other provinces have treated similar inmate disciplinary regimes. Courts in British Columbia and Ontario have concluded that provincial inmate disciplinary regimes do not trigger s. 11 protections (see British Columbia Civil Liberties Association v. Canada (Attorney General) , 2019 BCCA 228 , 377 C.C.C. (3d) 420 , and Canadian Civil Liberties Assn. v. Canada (Attorney General) , 2019 ONCA 243 , 144 O.R. (3d) 641 ). ### D. Does Section 68 of the Regulations Infringe Section 11(d) of the Charter ? #### (1) Application of the Wigglesworth Test in This Case

D. Does Section 68 of the Regulations Infringe Section 11(d) of the Charter ?

202Since I have found that Shubley remains good law, it is a binding precedent that governs this case. Shubley found that neither loss of earned remission nor disciplinary segregation constitutes a true penal consequence under the Wigglesworth test. As in Shubley , the sanctions in question in this case are disciplinary segregation and loss of earned remission. There is no principled basis for distinguishing this case from Shubley .

203That said, I will apply the Wigglesworth test afresh, consistent with the approach taken in Shubley , as if Shubley were not a binding precedent. ##### (a) The Criminal in Nature Prong of the Test

204Under the first prong of the Wigglesworth test, I will consider whether Saskatchewan's inmate disciplinary proceedings are criminal in nature. As noted above, the focus of this prong is on the nature of the proceeding, not on the nature of the underlying act. The question is whether the proceedings are "intended to promote public order and welfare within a public sphere of activity" ( Wigglesworth , at p. 559 ).

205The majority concedes that this prong is not satisfied in the present case (majority reasons, at para. 34). I agree. As established in Shubley and confirmed by the Court in Guindon , inmate disciplinary proceedings are administrative, not criminal, in nature. They are designed to maintain order and discipline in correctional institutions, not to address public wrongs.

206I will proceed with the analysis of the second prong of the Wigglesworth test: the true penal consequences prong. ###### (i) Objectives of the Legislation

207Under the Martineau framework for analyzing the criminal in nature prong, the objectives of the legislation are relevant. The objectives of Saskatchewan's inmate disciplinary regime are set out in the Act . The purposes of the Act are enumerated in s. 3, and include: to contribute "to the protection of society by providing for the safe, humane and effective custody and supervision of offenders", to "promote rehabilitation and community reintegration", to "manage offenders in a manner consistent with the least restrictive environment consistent with the risks and needs of the offender", and to "encourage and support offenders to be responsible for their conduct and progress in their correctional plan" (s. 3(a), (b), (c), (d)).

208These purposes are consistent with the conclusions in Shubley and Guindon that inmate disciplinary proceedings are administrative in nature. None of these purposes reflect a design to redress wrongs done to society or to hold offenders accountable to society as a whole for their conduct. Rather, they reflect administrative objectives related to the management of correctional institutions and the rehabilitation of individual offenders.

209The purpose of the inmate disciplinary regime is also relevant to the analysis. The disciplinary regime is designed to "promote compliance with the rules of the correctional facility" and to "provide for a fair and timely process for dealing with offences" ( Correctional Services Act , s. 58). The purpose of the regime is thus administrative, not punitive or criminal.

210In particular, the use of segregation and loss of earned remission as disciplinary sanctions reflects the administrative objectives of the legislation. These sanctions are intended to maintain order within the correctional institution and to encourage compliance with facility rules. They are not designed to hold inmates accountable to society for criminal wrongs.

211In this respect, the present case is analogous to Shubley , where McLachlin J. found that "the purpose of such proceedings is not to redress a wrong done to society as a whole but, rather, to maintain order and discipline within the prison" (pp. 18-19). This remains an accurate characterization of Saskatchewan's inmate disciplinary regime. ###### (ii) The Process Leading to the Sanction

212The process leading to the sanction is also relevant to the analysis under the criminal in nature prong. In this case, the process is set out in the Act and Regulations . The disciplinary process is initiated by a correctional officer, who may issue a charge when an inmate is alleged to have committed a disciplinary offence. The charge is then reviewed by a facility manager, who may dismiss the charge or refer it to a discipline panel. The discipline panel is composed of three members, including a discipline panel chair. The panel must provide the inmate with notice of the charge and an opportunity to be heard before the panel. The panel then renders its decision.

213This process differs significantly from a criminal trial. Unlike a criminal trial, the disciplinary process is internal to the correctional institution. The proceedings are conducted by prison officials, not by judges. The process is not designed to determine criminal liability or to impose punishment on behalf of society as a whole.

214Moreover, the disciplinary proceedings are designed to be expeditious, as recognized by the application judge and the Court of Appeal. The need for fast and efficient proceedings reflects the administrative nature of the proceedings. As this Court has recognized"[p]rison order is both more necessary and more fragile than in even military and police contexts" ( Shubley , at p. 24 ).

215In sum, the process leading to the sanction confirms that Saskatchewan's inmate disciplinary proceedings are administrative, not criminal, in nature. ###### (iii) Conclusion on the Criminal in Nature Prong

216For the foregoing reasons, Saskatchewan's inmate disciplinary proceedings are not criminal in nature within the meaning of the first prong of the Wigglesworth test. The objectives of the legislation and the process leading to the sanction all confirm that the proceedings are administrative in nature, designed to maintain order and discipline within Saskatchewan's correctional institutions.

217I agree with the majority that this conclusion is consistent with Shubley . The majority concedes this point. The real disagreement between the majority and the dissent concerns the second prong of the Wigglesworth test.

218I will now turn to the second prong: the true penal consequences prong. ##### (b) The True Penal Consequence Prong of the Test

219Under the second prong of the Wigglesworth test, the question is whether the potential sanctions in Saskatchewan's inmate disciplinary proceedings constitute "true penal consequences". As established by the Court in Wigglesworth and affirmed in Guindon , the key consideration under this prong is the purpose of the sanction.

220As I explained above, the purpose of the sanction is the primary consideration under this prong, with the magnitude of the sanction being a secondary consideration that is not determinative. ###### (i) Purpose of the Sanction

221The purpose of the sanctions available in Saskatchewan's inmate disciplinary proceedings must be assessed in light of the broader context of the legislative scheme. As I noted above, the Act 's purposes include the promotion of rehabilitation and community reintegration, the safe and humane custody and supervision of offenders, and the encouragement of offenders to be responsible for their conduct.

222The disciplinary sanctions available under the Act must be understood in light of these broader purposes. Segregation and loss of earned remission are sanctions that are imposed to maintain order within a correctional institution and to encourage compliance with facility rules. They are not imposed to punish inmates for criminal wrongdoing or to redress wrongs done to society.

223This is consistent with the conclusion in Shubley . Writing for the majority, McLachlin J. concluded that disciplinary segregation and loss of earned remission are "part of the matrix of conditions of imprisonment" (p. 23). The purpose of these sanctions is to regulate the conditions under which inmates serve their sentences, not to impose additional punishment for criminal wrongdoing.

224John Howard Society and the majority both argue that this characterization is formalistic and that the substance of the sanctions — i.e., the deprivation of liberty they impose — should be the focus of the analysis. With respect, this argument confuses the substance of the sanction with its purpose. The true penal consequences prong of the Wigglesworth test does not turn on the severity of the sanction alone but on whether the purpose of the sanction is to punish and to redress public wrongs. As I explained above, the purpose of segregation and loss of earned remission is administrative, not punitive.

225I note that even the majority recognizes that the purpose of the sanction is relevant to the analysis. At para. 50, the majority acknowledges that the true penal consequence test sets an "indisputably high bar" and that this bar limits the application of s. 11 outside the criminal context. This acknowledgment is consistent with the view that the purpose of the sanction is a critical consideration under this prong. However, the majority then diverges from this acknowledgment by focusing on the severity of the sanction rather than its purpose.

226In my view, this approach errs in shifting the analysis away from the purpose of the sanction and toward its severity. The true penal consequences prong is not a severity test; it is a purpose test. The severity of the sanction is relevant only insofar as it is consistent with (or inconsistent with) a purely regulatory purpose. ###### (ii) Consideration of the Impugned Sanctions 1. Segregation

227I will now apply the purpose analysis to the specific sanctions at issue in this case.

228Disciplinary segregation involves confining an inmate to a cell for a period of up to 30 days. As I noted above, the purpose of this sanction is to maintain order within the correctional institution and to encourage compliance with facility rules.

229While the sanction is severe — the inmate is confined to a cell for 23 hours a day — its purpose is administrative, not punitive. The severity of the sanction reflects the difficulty of maintaining order in a correctional institution. It does not reflect a desire to punish the inmate for criminal wrongdoing.

230This is consistent with the conclusion in Shubley , where McLachlin J. found that disciplinary segregation is "a method of keeping someone who is already imprisoned — someone whose liberty has already been curtailed — in a more restrictive environment" (p. 22). As a method of managing the conditions of imprisonment, disciplinary segregation has an administrative purpose.

231I also note that the sanction of disciplinary segregation is time-limited: it can be imposed for a maximum of 30 days. This time limitation is consistent with the administrative purpose of the sanction. If the purpose of the sanction were to punish the inmate for criminal wrongdoing, one would expect the sanction to be calibrated to the severity of the offence rather than to a fixed maximum period.

232Finally, I note that disciplinary segregation is available as a sanction for offences such as disrespectful behaviour toward staff or making a false or misleading statement. These are not offences that involve criminal wrongdoing or harm to society. Their inclusion among the offences for which segregation is available confirms that the purpose of the sanction is administrative — i.e., to maintain order within the institution — rather than to punish criminal wrongdoing.

233For all these reasons, I conclude that disciplinary segregation does not constitute a true penal consequence within the meaning of the Wigglesworth test. 2. Loss of Earned Remission

234I will now turn to the sanction of loss of earned remission.

235Loss of earned remission involves the forfeiture of reductions in an inmate's sentence that were earned for good behaviour. The effect of this sanction is to extend the inmate's period of incarceration.

236While the sanction has the effect of extending the inmate's incarceration, its purpose is to maintain order within the correctional institution, not to punish the inmate for criminal wrongdoing. The sanction operates as an incentive for good behaviour within the institution: it encourages inmates to comply with the rules by making compliance valuable (through the accumulation of remission) and non-compliance costly (through the loss of remission).

237The purpose of imposing a loss of remission is not to add to an inmate's sentence. It is to maintain order within a correctional institution. The application judge rightly referred to the cancellation of earned remission as "a tool for prison administration to ensure the orderly running of a prison" (para. 71). The sanction is imposed not to punish or denounce, but rather to encourage compliance and deter breaches of the facility rules. This makes the consequence non-penal.

238To find that these sanctions amount to true penal consequences would not be in keeping with Shubley . Having determined that Shubley remains good law , our Court is bound to follow it.

239However, even beyond Shubley , a fresh analysis of the Wigglesworth test would lead me to the same conclusion, that is, that neither sanction amounts to a true penal consequence because neither sanction's purpose is to redress a public wrong, nor is it to impose punishment or promote denunciation. Therefore, I find that the segregation and loss of earned remission within Saskatchewan's inmate discipline regime do not constitute true penal consequences. ###### (iii) Conclusion on the True Penal Consequences Prong

[240] I conclude that neither the criminal in nature prong nor the true penal consequences prong of the Wigglesworth test is met. Therefore, an inmate facing disciplinary sanctions in Saskatchewan is not "charged with an offence" within the meaning of s. 11 of the Charter , and s. 11(d) does not apply to Saskatchewan's inmate disciplinary proceedings. ### E. Does Section 68 of the Regulations Violate Section 7 of the Charter ?

E. Does Section 68 of the Regulations Violate Section 7 of the Charter ?

241Given my finding that the inmate disciplinary proceedings do not meet the two-step test in Wigglesworth and therefore do not engage s. 11, the question remains whether similar safeguards are available to inmates under s. 7 of the Charter .

242Section 7 provides: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

243Its purpose was well described by the Court in Gosselin v. Quebec (Attorney General) , 2002 SCC 84 , [2002] 4 S.C.R. 429, at para. 77 : . . . the dominant strand of jurisprudence on s. 7 sees its purpose as guarding against [those] deprivation[s] of life, liberty and security of the person . . . "that occur as a result of an individual's interaction with the justice system and its administration".

244The test to determine whether there has been a violation of s. 7 unfolds in three steps ( R. v. White , [1999] 2 S.C.R. 417, at para. 38 ): (1) First, was there a real or imminent deprivation of life, liberty, security of the person, or a combination of these interests? (2) If so, one must identify and define the relevant principle of fundamental justice. (3) Finally, was the deprivation in accordance with the principle of fundamental justice? #### (1) Step One: The Deprivation of Liberty

245The first step of the analysis pursuant to s. 7 is not under debate in the instant case. It has been conceded by the respondent that the liberty interests of inmates are engaged (R.F., at para. 6). I agree. In a prison environment, inmates retain residual liberty interests, and it is not disputed that those interests are engaged by the prospect of disciplinary segregation and loss of earned remission. The first step is therefore satisfied. #### (2) Step Two: Identify the Principle of Fundamental Justice

246It is undisputed that the presumption of innocence is a principle of fundamental justice guaranteed by s. 7 in the criminal context. In that regard, writing for the majority of the Court in Pearson , Lamer C.J. quoted R. v. Oakes , [1986] 1 S.C.R. 103, at pp. 119-20 : The presumption of innocence is a hallowed principle lying at the very heart of criminal law . . . . The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise.

247In the instant case, John Howard Society has explicitly stated before the courts below that it was not seeking recognition of a new principle of fundamental justice (see C.A. reasons, at para. 68). Rather, before our Court, John Howard Society has argued that the presumption of innocence already applies as a principle of fundamental justice in the context of inmate disciplinary proceedings.

248Consequently, the question before us is simply whether the presumption of innocence as a principle of fundamental justice requires application of the criminal standard of proof beyond a reasonable doubt in inmate disciplinary proceedings. #### (3) Step Three: Was the Deprivation in Accordance With the Principles of Fundamental Justice?

249In its reasons, the majority finds that s. 7 of the Charter would require Saskatchewan's proceedings for major disciplinary offences to use a criminal standard of proof. It draws from Pearson two requirements of assistance when discerning whether s. 7's protection of the presumption of innocence will require proof beyond a reasonable doubt. The majority holds that proof beyond a reasonable doubt is required when both: (a) a moral judgment is made about the accused's conduct; and (b) severe liberty-depriving consequences are imposed as punishment.

250Respectfully, I do not agree with that conclusion nor with that reading of Pearson . I do not find any requirement in Pearson suggesting that proof beyond a reasonable doubt is required when a proceeding both seeks to punish an individual for wrong conduct and imposes severe consequences on that individual. Such a reading of Pearson has potentially very wide-reaching implications.

251Interim release proceedings provide a salient example of my point. Every day, courts across Canada grapple with proceedings to decide if those who stand accused of crimes by the state should be released while they await trial. As it was said in R. v. St-Cloud , 2015 SCC 27 , [2015] 2 S.C.R. 328, bail proceedings "have a direct effect on the presumption of innocence" (para. 1). The consequences of detention are very serious. But the standard of proof for bail proceedings is not the criminal standard of beyond a reasonable doubt; rather"the standard of proof in bail hearings is reasonable probability, not proof beyond a reasonable doubt" ( St-Cloud , at para. 56 ).

252Applying a proof beyond a reasonable doubt standard here would mean that the flexibility necessary in such proceedings would be displaced with the effect of neglecting the other objectives, namely the protection or safety of the public, and maintaining confidence in the administration of justice, which are important Charter -compliant objectives in the bail context. While the outcome of bail hearings deprive accused persons of their liberty and are serious matters, this has not been understood to require the standard of proof beyond a reasonable doubt, and rightly so.

253Another example of the far-reaching impact of this line of reasoning can be seen in the immigration context, which is by its very nature administrative, not criminal. For example, Division 4 of Part 1 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27, deals with inadmissibility of non-citizens. Permanent residents and non-citizens can be found to be inadmissible and removed from Canada for reasons including serious criminality — i.e., for having been convicted of a crime punishable by a term of imprisonment of at least ten years, or a crime for which a term of imprisonment of more than six months was imposed. Under the scheme, hearings are before the Immigration Division and the standard of proof is a balance of probabilities (s. 36(1), (3)(d); Charkaoui v. Canada (Citizenship and Immigration) , 2008 SCC 38 , [2008] 2 S.C.R. 326 , at para. 38 ). The consequences are severe for the individual concerned, but the standard of proof has not been understood to require proof beyond a reasonable doubt.

254Moreover, and with respect, I do not agree that civil contempt fits within what is framed as the two requirements from Pearson . For one thing, civil contempt is not an accusation by the state; rather, it rests on the power of the courts, not the executive. Accordingly, civil contempt lies outside the normal criminal law framework, and for that reason Lamer C.J. was considering whether it would be captured by s. 11 at all. Lamer C.J. discussed it as a possible example of the extended reach of the reasonable doubt standard under s. 7 — a position to be considered, not a concrete holding of the Court.

255Therefore, I suggest the following analysis to decide whether a beyond a reasonable doubt standard is required under s. 7. The concern, as articulated in a variety of cases decided by our Court, is to ensure that the presumption of innocence within s. 11(d), which firmly operates during a criminal trial, applies at other stages of the justice system. This means that the presumption of innocence as a principle of fundamental justice applies within the criminal process, specifically at those stages where there is a determination of guilt or the imposition of consequences that are analogous to a criminal sentence. ##### (a) The Principles Governing Pearson

256John Howard Society relies on jurisprudence of this Court, with particular reliance on Pearson and Demers , to argue that the presumption of innocence, as a principle of fundamental justice guaranteed by s. 7, can be extended to require proof beyond a reasonable doubt in non-criminal contexts. To understand the scope of this argument, it is necessary to look at the cases that form the backdrop to Pearson .

257In R. v. Gardiner , [1982] 2 S.C.R. 368, a pre- Charter case, our Court was faced with deciding whether facts relied upon to support a lengthier sentence at a sentencing hearing following a guilty plea to a charge of assault causing bodily harm had to be proved beyond a reasonable doubt. The offender had pleaded guilty to a charge of assault and had been found guilty, but he disputed certain factual allegations that the Crown sought to use to increase his sentence.

258Dickson J. (as he then was) agreed with the offender. On sentencing, he noted that the "stakes are high for society and for the individual. . . . A substantial liberty interest of the offender is involved and the information obtained should be accurate" (p. 414). He concluded that aggravating facts "should be established beyond a reasonable doubt" (p. 415). To my mind, the facts which justify the sanction are no less important than the facts which justify the conviction; both should be subject to the same burden of proof. Crime and punishment are inextricably linked. "It would appear well established that at common law the criminal standard of proof is applied to the finding of fact at the sentencing stage of a criminal proceeding." (A. J. Boyle & M. Wincott"Practice and Procedure on Sentencing", Criminal Law Quarterly, 1974, p. 362.) ( Gardiner , at p. 415.)

259The importance of ensuring that accused persons have the benefit of the presumption of innocence throughout the criminal trial process, not just the trial itself, is clear from Dickson J.'s reasons ( Gardiner , at p. 415). As chief justice, writing for the majority in Pearson , Lamer C.J. relied on Gardiner as an example of the extension of the presumption of innocence beyond s. 11(d) to the sentencing stage of a criminal proceeding: The presumption of innocence is a hallowed principle lying at the very heart of criminal law . Although protected expressly in s. 11( d ) of the Charter , 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 . ( Pearson , at p. 683.)

260The Attorney General of Alberta argues that the unique social stigma and ostracism that come along with a criminal conviction — in addition to the loss of liberty — form part of the unique rationale for why a higher standard of proof is required when guilt is assessed. The presence of social stigma associated with inmate disciplinary hearings is less than that associated with criminal proceedings and, for that reason, a different standard may well be sufficient. I find this argument persuasive as part of the overall analysis.

261In Pearson , our Court was seized with a Charter challenge of a provision of the Criminal Code which precluded bail for certain narcotics-related offences, among others. Writing for the majority, Lamer C.J. found that the impugned provision violated s. 11(e) of the Charter (the right not to be denied reasonable bail without just cause) and s. 7 of the Charter (the right not to be deprived of liberty except in accordance with the principles of fundamental justice).

262Lamer C.J. noted the express protection of the presumption of innocence in s. 11(d) of the Charter , but reiterated Dickson C.J.'s conclusion in Oakes that the presumption of innocence extends beyond s. 11(d) and is "referable and integral to the general protection of life, liberty and security of the person contained in s. 7 of the Charter " ( Pearson , at pp. 683-84 ).

263For Lamer C.J., this was a contextual consideration. Not every deprivation of life, liberty, and security of the person requires the standard of proof beyond a reasonable doubt ( R. v. Whitty (1999) , 174 Nfld. & P.E.I.R. 77 , at para. 21 ; see also Pearson , at pp. 684-87 ).

264He went on to note that the "[e]xamples are legion of how the various stages of the criminal process have accommodated themselves to the fundamental principle that the assumed innocence of an accused or a suspect is the starting point for any process in which a person's liberty is at stake" ( Pearson , at p. 685, citing R. v. Tutton , [1989] 1 S.C.R. 1392 ). ###### (i) Determination of Guilt

265When discussing whether s. 7 would require proof beyond a reasonable doubt, Lamer C.J. suggested that it would be required when a particular step of the criminal process involves a determination of guilt ( Pearson , at p. 685). These comments must be understood in context: they were made in the specific context of discussing whether the standard of proof beyond a reasonable doubt applies at various stages of the criminal process, not as a general statement about when proof beyond a reasonable doubt is required under s. 7.

266This was also a consideration in Demers when our Court had to decide whether Part XX.1 of the Criminal Code violated the s. 7 presumption of innocence. In that case, the appellant argued that it had been violated in two ways: first, by treating a finding of "not criminally responsible on account of mental disorder" as a "determination of guilt"; and second, by the risk that information gathered at the treatment stage could be used against the accused at a later criminal trial ( Demers , at para. 56 ).

267John Howard Society argues the conclusion reached through the inmate disciplinary process amounts to a determination of guilt. I do not agree. An inmate disciplinary proceeding cannot be analogized to a criminal trial, where it is incumbent on the Crown to prove every element of the offence beyond a reasonable doubt in order to obtain a conviction. Rather, the inmate disciplinary proceeding is an administrative process that assesses whether the inmate has violated the rules of the correctional institution, not whether the inmate has committed a criminal offence that warrants societal condemnation and punishment.

268A determination of guilt, as contemplated by Pearson , involves more than simply a conclusion at the end of a process to determine if a person has done what it is alleged was done. Such a determination is reached to hold a person accountable to society for a criminal wrong, and a finding of guilt in the criminal context carries with it a significant moral component, including societal stigmatization and condemnation.

269I find the nature of the inmate disciplinary process to be analogous to the role of the Review Board in Demers , which performed an administrative role. Much like in Demers , the inmate disciplinary proceedings in this case are "perform[ing] an assessment for the purpose of keeping order and ensuring safety in a correctional setting" (para. 58) and do not involve a determination of guilt in the sense contemplated by Pearson . ###### (ii) Serious Consequences Analogous to a Criminal Sentence

270Further, in Pearson , Lamer C.J. considered two examples where s. 7 would require proof beyond a reasonable doubt, outside of a criminal trial, as an illustration of the "pervasive presence of the broad substantive principle throughout the criminal process" (p. 686). In both examples, the context was specifically the criminal process: the first concerned sentencing, and the second concerned contempt of court proceedings.

271Lamer C.J. explained the following with respect to the standard of proof required for aggravating factors during the sentencing process: The presumption of innocence as set out in s. 11( d ) arguably has no application at the sentencing stage of the trial. However, it is clear law that where the Crown advances aggravating facts in sentencing which are contested, the Crown must establish these beyond a reasonable doubt . . . . . . because the sentencing process poses the ultimate jeopardy to an individual . . . in the criminal process, it is just and reasonable that he be granted the protection of the reasonable doubt rule at this vital juncture of the process. Although, of course, Gardiner was not a Charter case, the problem it confronted can readily be restated in terms of ss. 7 and 11( d ) of the Charter . While the presumption of innocence as specifically articulated in s. 11( d ) may not cover the question at issue in Gardiner — sentencing facts which, if found adversely to the accused, go to increase the ultimate punishment — s. 7 would nonetheless require that these facts be proven beyond a reasonable doubt. ( Pearson , at p. 686; see also D.B. , at para. 80 .)

272John Howard Society relies on these statements to argue that the "serious consequences" to which an inmate is exposed are similar to those facing an accused when aggravating facts are contested in the sentencing process. With respect, this analogy is not apposite.

273The "serious consequences" referenced in Pearson , drawn from Gardiner , are in relation to the criminal sentencing process. It was understood in both cases that a person who is going to be sentenced following conviction faces the "ultimate jeopardy" because that person has been convicted of a crime and the final determination of the punishment for that crime is being made. In that context, the stakes are extremely high: the individual already faces societal condemnation and public stigmatization as a convicted criminal, and the specific punishment that will be imposed for that crime is under consideration.

274The Saskatchewan inmate discipline regime permits the imposition of a sanction, not a sentence in a criminal context. For the reasons I have laid out in the above s. 11 analysis, the sanction, in contrast to a sentence, is not for the purpose of punishing a public wrong. Consequently, the "ultimate jeopardy" that an accused in a criminal case faces at sentencing is not an apt analogy for the risk faced by an inmate in a disciplinary proceeding.

275Finally, John Howard Society submits that the sanctions at issue are harsh. However, John Howard Society was not prevented from making those arguments on the basis of s. 12 of the Charter before the courts below. I reiterate that we must decide this case on the basis of the issues that the parties have raised and that have been adjudicated by the courts below. #### (4) Inmate Disciplinary Records Should Only Be Used in Future Sentencing Hearings if Proven Beyond a Reasonable Doubt

276John Howard Society and some interveners further argue that because disciplinary records can be treated as aggravating at future sentencing hearings, it would only make logical and practical sense that s. 7 requires proof beyond a reasonable doubt at disciplinary hearings.

277Aggravating factors that the Crown seeks to rely upon at sentencing must be proven beyond a reasonable doubt ( D.B . , at paras. 78-80 , citing Pearson , at p. 686, and Gardiner , at pp. 414-15). Nothing in these reasons changes that longstanding principle.

278Like any aggravating factor that has not already been proven beyond a reasonable doubt at sentencing, inmate disciplinary records originally proven on a balance of probabilities will need to be established beyond a reasonable doubt at sentencing if the Crown seeks to rely on them as aggravating factors. The procedural safeguard for the use of inmate disciplinary records at sentencing is the existing rule requiring aggravating factors to be proven beyond a reasonable doubt. This adequately addresses the concern raised by John Howard Society and the interveners without requiring inmate disciplinary proceedings to be conducted under a proof beyond a reasonable doubt standard. #### (5) The Procedural Guarantees of the Correctional Services Act Are Sufficient To Ensure a Fair Process

279Our Court's jurisprudence clearly indicates that the question of standard of proof under s. 7 can be folded into discussions of procedural fairness ( Lyons , at p. 361; Gardiner , at pp. 415-16). Consequently, consideration of the procedural guarantees available to inmates will assist in determining whether the deprivation of liberty occasioned by s. 68 of the Regulations accords with the principles of fundamental justice.

280In general terms, procedural fairness requires a fair process, having regard to the nature of the proceedings at stake ( Charkaoui v. Canada (Citizenship and Immigration) , 2008 SCC 38 , [2008] 2 S.C.R. 326, at para. 20 ), although it does not necessarily require compliance with the rules applicable in criminal proceedings ( Ruby v. Canada (Solicitor General) , 2002 SCC 75 , [2002] 4 S.C.R. 3, at para. 39 ; Canada (Citizenship and Immigration) v. Harkat , 2014 SCC 37 , [2014] 2 S.C.R. 33, at para. 41 ; Howard v. Stony Mountain Institution , [1984] 2 F.C. 642 , at pp. 659-60 ).

281This Court has noted that inmate disciplinary proceedings "must be expeditious and informal if the crises that inevitably occur in centres of incarceration are to be avoided" ( Shubley , at p. 24; see also Cardinal , at p. 654; Matsqui , at p. 615 ). Justice La Forest explained the competing considerations in the following terms in Cardinal : [In penitentiaries,] [o]rder is both more necessary and more fragile than in even military and police contexts, and its restoration, when disturbed, becomes a matter of frightening immediacy. It would be an ill-informed court that was not aware of the necessity for immediate response by prison authorities to breaches of prison order and it would be a rash one that would deny them the means to react effectively. But not every feature of present disciplinary practice is objectively necessary for immediate disciplinary purposes. The mere convenience of the authorities will serve as no justification . . . . Even what may be necessary but nevertheless delayable may be delayed but a reasonable time only. ( Cardinal , at p. 654 .)

282As I mentioned earlier in these reasons, approximately 6,201 disciplinary charges were laid across the province in 2019, and 3,367 disciplinary hearings were held, averaging about 9 hearings per day (R.F., at para. 73, referring to the affidavit of Lindsay Tokaruk, reproduced in A.R., at p. 194). The number of disciplinary proceedings reflects the practical realities of maintaining order in correctional institutions. In this context, the administrative efficiency of the proceedings is important.

283Of course, as the Court of Appeal noted"practicality, convenience, and efficiency cannot come at the expense of the principles of fundamental justice" (para. 30, citing R. v. Ndhlovu , 2022 SCC 38 , at paras. 78 and 103 ). Indeed, when the Charter right at stake is the presumption of innocence, there is an absolute minimum standard of procedural fairness. The question is whether the procedural scheme in place in Saskatchewan meets that standard.

284In the particular context of prison discipline, it is all the more important to strike a balance between the need for procedural fairness and the need to ensure fast and efficient proceedings in order to maintain order in a correctional institution. This means that the assessment of whether the procedural regime is constitutionally adequate must be conducted in light of the unique context of correctional institutions.

285Consequently, the question is whether the procedural safeguards in place in Saskatchewan's legislative and regulatory scheme deprive inmates of their liberty in a manner that accords with the presumption of innocence protected under s. 7. This means that those safeguards must be adequate to ensure that the inmates' presumption of innocence is respected in practice.

286Providing guidance respecting procedural fairness in the context of prison discipline, Professors Patrice Garant and Paule Halley drew from the rules of audi alteram partem (the right to be heard) and nemo judex in sua causa (the right to impartial adjudication) to determine the basic procedural guarantees available to inmates in disciplinary proceedings, summarizing the minimum requirements as follows: [ translation ] . . . the right to be informed [of the facts alleged against him or her], the right to a hearing that he or she can attend, the right to make his or her arguments, the right to be represented by counsel, the right to consult the record, and the right to a decision accompanied by reasons. . . . ("L' article 7 de la Charte canadienne et la discipline carcérale" (1989), 20 R.G.D. 599, at p. 615) Although these guarantees are not absolute, they are nonetheless available when [ translation ] [t]he inmate who has been deprived of his or her liberty or security . . . demonstrate[s] that in the particular circumstances of the case he or she should be granted this right. [p. 615]

287In the instant case, most of the protections mentioned above are included in the current regime of the Act . Therefore, I have no difficulty in finding that the procedural guarantees offered to the inmates under that regime are sufficient to meet the minimum standards of fundamental justice.

288The guiding principles of the Act set out that inmates must "comply with correctional facility rules" but "are entitled to fair treatment" ( s. 3 (d) and (e)). Section 60(1) of the Regulations stipulates that inmates will be provided with a full and fair hearing and that a thorough and objective investigation of all allegations will take place. Other regulations specify that the discipline panel shall consider all relevant evidence (s. 64), that the panel shall provide reasons for its decision (s. 67), and that the inmate has the right to be present at the hearing (s. 60(2)) and to make submissions (s. 60(3)).

289It is in this context that the impugned provision, s. 68 of the Regulations , sets out that "[a] discipline panel shall not find an inmate responsible for a disciplinary offence unless it is satisfied on a balance of probabilities that the inmate committed that offence." It is also worth referring to ss. 71, 72, and 79-80 of the Act , which provide for an appeal of the disciplinary panel's decision to a Superintendent and then to the Deputy Minister. These provisions for appeal ensure the availability of administrative review of disciplinary decisions.

290In the present case, inmates are subject to a discipline system in order to ensure that the correctional facility operates in a safe and efficient manner. Within this system, they are provided with rights that allow them to make full answer and defence to the allegations of misconduct. The discipline panel is required to consider all evidence and provide reasons for its decision. These procedural safeguards, taken as a whole, provide sufficient protection for inmates' presumption of innocence. #### (6) Conclusion on Section 7

[291] Proof beyond a reasonable doubt is not required in the context of Saskatchewan's inmate disciplinary proceedings under s. 7 , and the procedural guarantees provided for in the Act are sufficient to ensure a fair process. Thus, the standard of proof provided for in s. 68 of the Regulations does not violate s. 7 of the Charter . ### F. Are Any Possible Infringements of Section 7 or Section 11(d) of the Charter Justified Under Section 1?

F. Are Any Possible Infringements of Section 7 or Section 11(d) of the Charter Justified Under Section 1?

[292] Having found no infringement of s. 7 or s. 11(d), I am of the view that there is no need to proceed to a s. 1 analysis. This was also the approach taken by the courts below, having found no infringement of s. 7 . However, if I had been of the opinion that s. 68 was not constitutionally compliant, the s. 1 determination should have been remitted to the application judge. The application judge was in the best position to make those determinations. In addition, I would not agree with the majority's statement that s. 68 of the Regulations fails the minimal impairment test. Minimal impairment calls upon the government to demonstrate that it chose the least harmful means of achieving the pressing and substantial objective (see Brown , at para. 130 ). Given that the majority does not dispute that the objective is pressing and substantial, it ought to have conducted the s. 1 analysis in full rather than finding that the measure is not minimally impairing. The mere existence of an alternative measure that has been adopted by the federal government does not establish that the current provincial regime fails the minimal impairment test (see Suresh v. Canada (Minister of Citizenship and Immigration) , 2002 SCC 1 , [2002] 1 S.C.R. 3, at para. 39 ; Singh v. Minister of Employment and Immigration , [1985] 1 S.C.R. 177, at p. 218; Perron v. Canada (Attorney General) , 2020 FC 741 , at paras. 138-41 ; Bell ExpressVu Limited Partnership v. Torroni , 2009 ONCA 85 , 94 O.R. (3d) 614, at para. 17 ; Pro Swing Inc. v. Elta Golf Inc. , 2006 SCC 52 , [2006] 2 S.C.R. 612, at para. 38 ). ## VI. Conclusion

VI. Conclusion

293Saskatchewan's inmate disciplinary proceedings are administrative, not criminal, in nature. They are designed to maintain prison order and provide efficient, yet fair, resolution of misconduct allegations. They are not designed to redress wrongs to society as criminal proceedings are apt to do.

294Section 11 does not apply to Saskatchewan's inmate disciplinary proceedings. Having found that the proceedings are not criminal in nature and the sanctions are not true penal consequences, I am of the opinion that to face a charge of inmate misconduct is not akin to being "charged with an offence" within the meaning of s. 11 of the Charter .

295Section 7 is engaged but is not infringed. This is because the presumption of innocence, as a principle of fundamental justice guaranteed by s. 7 , is applied in conjunction with the requirements of procedural fairness that serve as residual protection under s. 7 . As demonstrated, these combined safeguards are sufficient to ensure that inmate disciplinary proceedings respect an inmate's rights pursuant to s. 7 of the Charter .

296Having found no breach of either s. 11(d) or s. 7 , I would dismiss the appeal and find s. 68 of the Regulations constitutional.

297I would not allow costs because the respondent has not sought any against John Howard Society. --- Appeal allowed with costs throughout, Côté , Rowe and Jamal JJ. dissenting. Solicitors for the appellant: John Howard Society of Saskatchewan, Regina; Greenspan Humphrey Weinstein, Toronto. Solicitor for the respondent: Ministry of Justice (SK), Legal Services Division, Regina. Solicitors for the intervener the Attorney General of Canada: Department of Justice Canada, British Columbia Region — National Litigation Sector, Vancouver; Department of Justice Canada, Ontario Region — National Litigation Sector, Toronto. Solicitor for the intervener the Attorney General of Ontario: Civil Law Division — Constitutional Law Branch — Ministry of the Attorney General, Toronto. Solicitor for the intervener the Attorney General of Quebec: Ministère de la Justice du Québec — Direction du droit constitutionnel et autochtone, Québec. Solicitor for the intervener the Attorney General of British Columbia: Ministry of Attorney General (British Columbia) — Legal Services Branch, Vancouver. Solicitors for the intervener the Attorney General of Alberta: Alberta Justice — Constitutional and Aboriginal Law, Edmonton; Alberta Justice — Civil Law, Edmonton. Solicitors for the intervener the Alberta Prison Justice Society: Nanda & Company, Edmonton. Solicitors for the intervener Federation of Sovereign Indigenous Nations: LeBlanc Jensen, Regina; Sunchild Law, Battleford, Sask. Solicitor for the intervener Aboriginal Legal Services Inc.: Aboriginal Legal Services, Toronto. Solicitors for the intervener the British Columbia Civil Liberties Association: Davies Ward Phillips & Vineberg, Montréal. Solicitors for the intervener the Criminal Lawyers' Association (Ontario): Neubauer Law, Toronto; Embry Dann, Toronto. Solicitors for the intervener the Queen's Prison Law Clinic: Addario Law Group, Toronto. Solicitors for the intervener Association des avocats.es carcéralistes du Québec: Trudel Johnston & Lespérance, Montréal. Solicitors for the intervener the Canadian Civil Liberties Association: Norton Rose Fulbright Canada, Ottawa. Solicitor for the intervener the Canadian Prison Law Association: Prisoners' Legal Services, Burnaby. Solicitors for the intervener the West Coast Prison Justice Society: Rice Harbut Elliott, Vancouver. --- [1] While the Regulations use the term "burden of proof", it is more accurately described as a "standard of proof", and I will therefore be using that term throughout these reasons.