The Queen’s Prison Law Clinic (QPLC) has achieved another significant success in arguments made before the Supreme Court of Canada (SCC). The clinic acted as an intervenor in a recent ground-breaking ruling that will have a profound impact on discipline procedures in Canada’s provincial jails.

Last October, the QPLC stood as one of 15 intervenors in John Howard Society of Saskatchewan v. Saskatchewan (Attorney General). In their judgment the SCC justices departed from a 35-year-old precedent in ruling 6-3 that the standard of “beyond a reasonable doubt” is constitutionally required in decisions related to misconduct and discipline in provincial jails.

“For decades, the gold-standard criminal law burden of ‘beyond a reasonable doubt’ has been required in inmate disciplinary hearings in federal prisons,” says Professor Lisa Kerr, the Director of the Criminal Law Group at Queen’s and an advisor in the QPLC’s strategic litigation work. “That is a fair approach and generally works well. However, the lesser civil law standard of ‘balance of probabilities’ was the prevailing test in provincial jails. As a result, prisoners in that system who were accused of breaking a rule could easily be convicted in the wake of an allegation brought against them. The limited rights that these prisoners have had did not fit well with the serious penalties they can face, which include segregation and additional incarceration time.”

Writing for the majority of the Court, in his March 2025 ruling Chief Justice Richard Wagner discussed how internal disciplinary proceedings in jails and prisons serve a public function since they signal moral and social disapproval for certain behaviours while encouraging an inmate’s rehabilitation and preparation for re-entry into society.

Those were exactly the points the QPLC made in its submission when it argued that the moral nature of inmate disciplinary regimes has “obvious parallels” with the criminal justice system. Justice Wagner took the unusual step of directly citing the QPLC’s arguments (in paragraph 89 of the court’s judgement), which underscores the impact the Clinic had on the result.

Also striking was the Court’s decision to overturn a 1990 precedent called R v. Shubley. In that case, the SCC had held that inmate disciplinary proceedings weren’t criminal in nature and didn’t lead to “true penal consequences.” (Interestingly, the validity of the Shubley decision had been called into question in a 2014 law journal article “Contesting Expertise in Prison Law” [60 McGill Law Journal 43] that was authored by Professor Lisa Kerr. Justice Wagner cited her article (at para. 40 of the ruling) and accepted her critique: at the core of the Shubley interpretation of the word ‘imprisonment’ was a formalistic adherence to the criminal law’s distinction between the sentence of imprisonment an inmate incurs and the conditions of imprisonment – a distinction that has been attenuated by subsequent Charter jurisprudence.)

“It’s clear the QPLC’s submissions had a significant impact on addressing what has been a longstanding issue in prison law,” Kerr says.

“For decades, prison lawyers and scholars have been pressing for exactly this reform. We’d all seen how unfair and sloppy the disciplinary system can be in provincial jails. We knew that a big part of the problem was that an allegation that misconduct ‘probably’ had occurred was all it took.”

“When prisoners are accused of wrongdoing, they face the risk of serious consequences. They might be placed in segregation. They might wind up being incarcerated for longer. So allegations against prisoners need to be fairly adjudicated. That means the state has to prove its case before a finding of guilt and punishment can follow. What the John Howard case does is to require that same standard in provincial jails. It will mean more reliable decisions, a fairer system, and ultimately a more legitimate one that will be better positioned to rehabilitate incarcerated people.”

While Kerr opines that this ruling won’t fix all the problems that exist in the provincial system, it is a huge step in the right direction – one that clearly was influenced by the work of the faculty and students who are involved in the QPLC.

It was Paul Quick, Law’09, the clinic’s staff lawyer and an instructor in the Advanced Prison Law class, who oversaw the substantial team effort that went into preparing the clinic’s submissions. He also worked closely with pro bono counsel Samara Sector and Wes Dutcher-Walls of the Toronto-based Addario Law Group – a national leader in the field of criminal and public law litigation – who made the QPLC’s arguments before the SCC.

In addition, there were vital contributions from QPLC Director and class instructor Kathy Ferreira, Law’01; and then-student Christina Papageorgakopoulos, Law’24, who’s now an associate with the Toronto firm Lenczner Slaght. Papageorgakopoulos did a “deep dive” into the long history of penal disciplinary courts in the federal system. “It was a lot of work,” she says, “but because I majored in history in my undergraduate years, I enjoyed doing the research. It was also a real eye-opener for me, and I learned a lot.”

Papageorgakopoulos notes that the practical experience she gained in her involvement with the QPLC is proving to be invaluable as she begins her legal career. “That’s why whenever I’m talking with Queen’s Law students, I tell them how worthwhile it is to be involved with the QPLC. The clinic is doing work that’s important and is making a real difference.”

Ferreira echoes those words. “In Advanced Prison Law, experienced students who have already typically been involved with the clinic’s hands-on tribunal work in the QPLC course, have a unique and impactful opportunity to assist Paul Quick and generous pro bono counsel with addressing systemic issues, including at the SCC. While the clinic is mandated to assist federal prisoners, the extensive and important work of Advanced Prison Law allowed us to consider provincially incarcerated persons who may soon arrive in federal custody and whose provincial records follow them and can matter in placement and security decisions.”

The QPLC’s strategic litigation work, which is handled by Quick, has done outstanding work to further the clinic’s pedagogical goals while ensuring that Canada’s highest court has the interests of incarcerated people in mind when making its decisions. Since 2018, the QPLC has intervened in more than 10 SCC cases, with pro bono assistance from some of this country’s best appellate counsel. In each one, the QPLC has been a respected voice before the Court, and the clinic’s submissions have had a clear impact on the outcome.

The Queen’s Law Clinics gratefully acknowledge the support of Legal Aid Ontario, the Law Foundation of Ontario, Pro Bono Students Canada, the Class of Law’81, the United Way of KFL&A, and alumni and industry sponsors, including Cunningham Swan Carty Little & Bonham LLP.

By Ken Cuthbertson, Law’83