By: Grace Winkeljohn
Canada recently changed their evidence standard for inmate disciplinary proceedings from a “balance of probabilities” to “beyond a reasonable doubt.” This comes from the recent decision of the Supreme Court of Canada in John Howard Society of Saskatchewan v. Saskatchewan (Attorney General) that was decided on Friday, March 14. This is a very interesting issue as the standard in America, for the same proceedings, is “some evidence.” This standard is a far cry from the heightened standard of beyond a reasonable doubt as adopted by Canada. This discrepancy raises concerns of whether the standard in the U.S satisfies the due process requirement of the U.S. Constitution. The updated Canadian standard begs the question of whether the U.S. should follow suit in heightening its standard to protect the rights of inmates.
Disciplinary proceedings for individuals in prison are imposed on those who commit “prohibited acts.” Prison staff take “disciplinary action at such times and to the degree necessary to regulate an inmate’s behavior within Bureau rules and institutional guidelines and to promise a safe and orderly institutional environment.” Such proceedings result in a wide array of disciplinary sanction such as solitary confinement, loss of good time credits, and forced labor. The Saskatchewan case involved a “major disciplinary proceeding” where the punishment could be either segregation up to ten days or loss of up to fifteen days of earned remission. Prior to this case, Section 68 of Saskatchewan’s Correctional Services Regulations, 2013 (Regulations) set the standard of proof for all disciplinary proceedings, including those for major offenses. This section of the Regulations was challenged by the John Howard Society of Saskatchewan.
This case was brought to challenge Section 68 of the Regulations as infringing on Section 11(d) of the Canadian Charter which “guarantees all persons charged with an offence the right to be presumed innocent until proven guilty.” This section “applies to a person charged with an offence when proceedings are criminal in nature or lead to the imposition of true penal consequences.” “The true penal consequence test focuses on the potential impact on the person subject to the proceeding and is always satisfied when there is the possibility of imprisonment.” A prior case, Shubley, held that inmate disciplinary proceedings did not satisfy this test because they were not truly criminal in nature, emphasizing the distinction between the sentence of imprisonment imposed on a person and the condition of imprisonment. However, this decision is now overruled as the Court in Saskatchewan held that “[w]hen an inmate faces the risk of disciplinary segregation or loss of earned remission, they face the possibility of additional imprisonment — a true penal consequence.”
The protections of the Charter in disciplinary proceedings do not end with Section 11(d). Section 7 provides residual protection for the presumption of innocence by requiring “proof belong a reasonable doubt” in proceedings where there is a potential for the “imposition of severe liberty-depriving consequences.” Because disciplinary proceedings involve an accusation of moral wrongdoing and the potential imposition of severe liberty-depriving consequences, the Supreme Court of Canada held that Section 68 of the Regulation infringed upon both Section 11(d) and Section 7 of the Charter by permitting “the imposition of imprisonment when a reasonable doubt as to the accused’s guilt may exist.” Canada will now require actions that could result in disciplinary sanctions to be proved beyond a reasonable doubt to ensure that inmates are not deprived of their rights guaranteed by the Charter.
Canada’s recent change in the standard of proof brings the U.S. system’s shortcomings into sharp focus. Similarly to the rights guaranteed by the Charter, the 14th Amendment to the U.S. Constitution guarantees the right to “life, liberty, and property.” Although the U.S. does not have a specific regulation that requires “proof beyond a reasonable doubt” in criminal proceedings, it dates back to 1798 in the English Common Law and was read into Constitutional law by the Supreme Court in 1970. This standard is applicable to all criminal proceedings and is much higher than the civil standard of “preponderance of the evidence,” which only requires a certainty greater than fifty percent. However, the standard for disciplinary proceedings is very low, only requiring “some evidence,” rather than requiring the disciplinary officer to “produce substantial evidence or a preponderance of the evidence against [the inmate].” Additionally, the presumption of innocence, according to the Supreme Court, “lies at the foundation of the administration of [its] criminal law.”
This issue raises serious constitutional concerns, particularly in light of the poor quality of life in U.S. prisons and the high frequency of disciplinary sanctions imposed on inmates. For example, a Washington Supreme Court case involved an inmate that received a disciplinary sanction that effectively lengthened his overall sentence. In this case, the inmate suffered an “onset of deeply painful seizures and hallucinations that required him to go to the hospital and obtain medical treatment as a result of using a synthetic form of cannabis.” The officer that accompanied him to the hospital charged the inmate with staff assault for grabbing the officers arm during a seizure, while the inmate maintained that he asked the officers consent “to hold his hand while a nurse checked his vitals.” The application of the “some evidence” standard resulted in a finding of guilt against the inmate, in light of convincing evidence to the contrary, because this standard fails to consider all of the presented evidence.
Although the Constitution affords incarcerated individuals fewer rights than free citizens, “they are still owed a minimum amount of due process.” Yet, the Supreme Court of the United States has maintained that even a significant, negative change in confinement “does not necessarily hurt a liberty interest protected by due process rights.” This is interesting considering the statistics of disciplinary proceedings. According to a recent national survey, 53% of inmates reported being written up, and 90% of those people reported receiving some form of disciplinary action. Such disciplinary actions have the devastating effects of “traumatizing people with sanctions like solitary confinement [and] increas[ing] the chances they’ll be rearrested in the future.” Studies of the same in Canada have resulted in similar findings of mental and physical health effects and an increased risk of self-harm and suicide. These findings make the low standard of proof even more alarming.
The recent decision by the Supreme Court of Canada implicates serious constitutional issues of the due process rights of inmates. In overturning longstanding law and now requiring proof beyond a reasonable doubt for inmate disciplinary proceedings, the decision highlights the significant impact these proceedings have on the life and liberty of inmates. This impactful change begs the question of whether the U.S. standard of “some evidence” should likewise be overturned to guarantee inmates their rights of due process. In light of the disturbing statics of the effects of disciplinary actions, it is time for this low standard to be reconsidered by the Supreme Court of the United States.
