R. v. Shubley [1990] 1 S.C.R. 3: Double jeopardy - Inmate disciplined for incident occurring within penal institution - Inmate later charged with criminal offence

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

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

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

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

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

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

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

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

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

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

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

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

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

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