T-2343-74
John Emmett McCann, Walter Alan Dudoward,
Ralph Cochrane, Jake Quiring, Donald Oag, Keith
Curtis Baker, Andrew Bruce and Melvin Miller
(Plaintiffs)
v.
The Queen and Dragan Cernetic, in his capacity
as Institutional Head of the British Columbia
Penitentiary (Defendants)
Trial Division, Heald J.—New Westminster, B.C.,
February 10, September 22-26, 29, October 1-3,
6-9, December 1-5, 1975; Ottawa, December 30,
1975.
Imprisonment — Solitary confinement — Plaintiffs are in
mates at B.C. Penitentiary—Seeking declarations that (a)
solitary confinement is cruel and unusual punishment contrary
to Canadian Bill of Rights, (b) solitary confinement, without
notice of charges, proper hearing, etc., according to principles
of fundamental justice, is contrary to Canadian Bill of
Rights—Seeking declaration that s. 2.30 of the Penitentiary
Service Regulations is inoperative as conflicting with Canadi-
an Bill of Rights—Seeking order compelling defendants to act
on Court's declaration—Penitentiary Service Regulations, ss.
2.06, 2.07, 2.28, 2.29, 2.30—Canadian Bill of Rights, S.C.
1960, c. 44, ss. 1(a), 2(a),(b),(e).
Plaintiffs, inmates at the British Columbia Penitentiary seek
declaratory relief against solitary confinement and allege as
follows: (1) that such confinement under section 2.30(1) of the
Penitentiary Service Regulations abrogates and infringes their
right to freedom from cruel and unusual punishment under
section 2(b) of the Canadian Bill of Rights; (2) that said
confinement without notice of charges and without a hearing
deprives them of the right to a fair hearing in accordance with
the principles of fundamental justice and is contrary to sections
1(a) and 2(e) of the Canadian Bill of Rights; (3) some
plaintiffs claim they were advised that they were suspected of
committing offences under sections 2.28 and 2.29 of the Regu
lations but were confined under section 2.30 without a hearing
or procedural protection; (4) some also claim that while they
were initially confined in punitive dissociation under sections
2.28 and 2.29 under a Warden's Court sentence, they were
afterwards retained under non-punitive confinement, under sec
tion 2.30, indefinitely without procedural protection or a hear
ing; (5) some also claim that they were detained due to pending
outside charges, and that section 2.30(1) constitutes an arbi
trary detention and imprisonment, abrogating their rights guar
anteed in the Canadian Bill of Rights; (6), that they were
confined contrary to section 2.30(2) in that they are being
deprived of normal inmate privileges and amenities, and they
allege non-compliance with sections 2.07 (hygiene) and 2.06
(medical and dental care); (7) that tear gas was improperly
used, and rifles improperly pointed; (8) that defendant Cernetic
has improperly delegated authority given by section 2.30(1),
and that the decision to confine in solitary was made unlawful
ly; (9) that during their dissociation under section 2.30(1), they
have not had the monthly reviews required by the section; and
(10) that treatment received has caused such suffering and
anguish as to bring about physical and psychological
deterioration.
Held, there will be a declaration that the confinement of all
plaintiffs, save Baker, in the Solitary Confinement Unit
amounted to the imposition of cruel and unusual treatment or
punishment contrary to section 2(b) of the Canadian Bill of
Rights. They are not, however, entitled to an order to compel
defendants to act in accordance with the Court's declarations
as claimed. Applying the tests set out by Mr. Justice McIntyre
in his dissent in The Queen v. Miller and Cockriell [1975] 6
W.W.R. 1, the treatment serves no positive penal purpose; even
if it did, it would be cruel and unusual because it is not in
accord with public standards of decency and propriety, since it
is unnecessary because of the existence of adequate alterna
tives. While "dissociation" has been shown to be necessary, it is
not synonymous with "solitary." Even if one were to ascribe to
"unusual" its ordinary meaning, a good argument could be
made for characterizing at least some of the treatment as
"unusual". As to plaintiffs' request for a declaration that
section 2.30(1) of the Regulations is inoperative, plaintiffs have
not established their right to this relief. The objective of the
regulation is the maintenance of good order and discipline in
Canadian penitentiaries; this is a valid federal objective, and
the regulation is intra vires. As to plaintiffs' "due process"
claim, the Court is satisfied, from a consideration of the plain
words of regulation 2.30(1)(a) when considered in the context
of the scope of the functions of the institutional head, that the
decision to dissociate is purely administrative and neither sec
tion 1(a) nor 2(e) of the Canadian Bill of Rights applies so as
to entitle plaintiffs to the declaration sought.
The Queen v. Miller [1975] 6 W.W.R. 1; The Queen v.
Burnshine [1975] 1 S.C.R. 693; Attorney General of
Canada v. Canard [1975] 3 W.W.R. 1 and Merricks v.
Nott-Bower [1964] 1 All E.R. 717, discussed. Curr v. The
Queen [ 1972] S.C.R. 889; Ex parte McCaud [1965] 1
C.C.C. 168; Howarth v. National Parole Board [1973]
F.C. 1018; Mitchell v. The Queen (1976) 24 C.C.C. (2d)
241 and Landreville v. The Queen [1973] F.C. 1223,
applied.
ACTION.
COUNSEL:
B. Williams and D. J. Sorochan for plaintiffs.
J. R. Haig and K. F. Burdak for defendants.
SOLICITORS:
Swinton & Company, Vancouver, for
plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
HEALD J.: At the time of the filing of the
original statement of claim herein (June 4, 1974),
all of the plaintiffs were inmates of the British
Columbia Penitentiary, one of Her Majesty's peni
tentiaries, situate in the City of New Westminster,
in the Province of British Columbia (hereinafter
referred to as the B.C. Penitentiary).
On June 4, 1974, the plaintiffs, Quiring, Oag
and Bruce were in the Special Correction Unit
(hereinafter referred to as the SCU) of the said
B.C. Penitentiary. The plaintiff, Quiring, was
released to the general population of said peniten
tiary on July 3, 1974. The plaintiff, Cochrane, was
placed in the SCU on or about July 30, 1974,
following his escape from the B.C. Penitentiary
and subsequent recapture. All of the plaintiffs
were, at various times prior to June 4, 1974,
confined to said SCU at the B.C. Penitentiary.
The defendant, Dragan Cernetic (hereafter Cer-
netic) is the Institutional Head of the said B.C.
Penitentiary and as such is the officer who has
been appointed under the Penitentiary Act, R.S.C.
1970, c. P-6, and the Penitentiary Service Regula
tions, SOR/62-90, to be in charge of the B.C.
Penitentiary.
The defendant, Cernetic, is responsible for the
whole of the organization, safety and security of
the B.C. Penitentiary, including the correctional
training of inmates confined therein, and has the
duty to ensure that the institutional staff comply
with the provisions of the Penitentiary Act, the
Penitentiary Service Regulations, the Directives
issued by the Commissioner of Penitentiaries, and
the standing and routine orders of the institution.
The defendants concede that it is the duty of
each and every officer and employee constituting
the institutional staff of the B.C. Penitentiary to
obey the law generally and pursuant to the provi
sions of the Penitentiary Act and the Penitentiary
Service Regulations, to give effect to and act in
accordance with the provisions of the Penitentiary
Act, the Penitentiary Service Regulations, the
Directives of the Commissioner of Penitentiaries
and the standing and routine orders of the B.C.
Penitentiary, and it is the duty of the defendant,
Cernetic, to ensure that such laws and provisions
are complied with by the staff and to discipline
any member of the institutional staff who does not
so comply.
The plaintiffs allege that their confinement in
said SCU under the purported authority of section
2.30(1) of the Penitentiary Service Regulations'
abrogates and infringes the plaintiffs' right to
freedom from cruel and unusual treatment or pun
ishment guaranteed under the Canadian Bill of
Rights, S.C. 1960, c. 44, s. 2(b) 2 . Particûlars of
the said cruel and unusual treatment or punish
ment are contained in paragraph 5(a) to (j) inclu
sive of the further amended statement of claim
dated October 28, 1975.
2.30. (1) Where the institutional head is satisfied that
(a) for the maintenance of good order and discipline in the
institution, or
(b) in the best interests of an inmate
it is necessary or desirable that the inmate should be kept from
associating with other inmates he may order the inmate to be
dissociated accordingly, but the case of every inmate so dis
sociated shall be considered, not less than once each month, by
the Classification Board for the purpose of recommending to
the institutional head whether or not the inmate should return
to association with other inmates.
(2) An inmate who has been dissociated is not considered
under punishment unless he has been sentenced as such and he
shall not be deprived of any of his privileges and amenities by
reason thereof, except those privileges and amenities that
(a) can only be enjoyed in association with other inmates, or
(b) cannot reasonably be granted having regard to the limi
tations of the dissociation area and the necessity for the
effective operation thereof.
: 2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to
(b) impose or authorize the imposition of cruel and unusual
treatment or punishment;
The plaintiffs further allege that said confine
ment in said SCU under the purported authority
of section 2.30(1) without notice of any charges
and a hearing before an impartial decision maker
deprives the plaintiffs of the right to a fair hearing
in accordance with the principles of fundamental
justice and in accordance with the rights guaran
teed to the plaintiffs in sections 1(a) and 2(e) of
said Canadian Bill of Rights'. There is the further
allegation in this regard that no reasons for said
confinement were ever given to the plaintiffs.
Additionally, some of the plaintiffs allege they
were advised that they were suspected of institu
tional disciplinary offences under regulations 2.28
and 2.29 4 , but were never notified, charged, given
a hearing or reasons for confinement but, rather,
were confined in the SCU under regulation 2.30
without the benefit of a hearing and procedural
protections. Some of the plaintiffs also allege that
while they were initially confined in punitive dis
sociation in the SCU under regulations 2.28 and
2.29 and pursuant to a Warden's Court sentence,
that after the expiration of said sentence which
3 1. It is hereby recognized and declared that in Canada
there have existed and shall continue to exist without discrimi
nation by reason of race, national origin, colour, religion or sex,
the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the
person and enjoyment of property, and the right not to be
deprived thereof except by due process of law;
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to
(e) deprive a person of the right to a fair hearing in accord
ance with the principles of fundamental justice for the deter
mination of his rights and obligations;
4 2.28. (1) The institutional head of each institution is
responsible for the disciplinary control of inmates confined
therein.
(2) No inmate shall be punished except pursuant to an order
of the institutional head or an officer designated by the institu
tional head.
cannot lawfully exceed 30 days (see regulation
2.28(4)(b)), they were retained in the SCU under
non-punitive confinement indefinitely under regu
lation 2.30 without the benefit of any procedural
protections, and without any hearing by the
defendant Cernetic.
(3) Where an inmate is convicted of a disciplinary offence
the punishment shall, except where the offence is flagrant or
serious, consist of loss of privileges.
(4) The punishment that may be ordered for a flagrant or
serious disciplinary offence shall consist of one or more of the
following:
(a) forfeiture of statutory remission;
(b) dissociation for a period not exceeding thirty days,
(i) with a diet, during all or part of the period, that is
monotonous but adequate and healthful, or
(ii) without a diet;
(c) loss of privileges.
2.29. Every inmate commits a disciplinary offence who
(a) disobeys or fails to obey a lawful order of a penitentiary
officer,
(b) assaults or threatens to assault another person,
(c) refuses to work or fails to work to the best of his ability,
(d) leaves his work without permission of a penitentiary
officer,
(e) damages government property or the property of another
person,
(f) wilfully wastes food,
(g) is indecent, disrespectful or threatening in his actions,
language or writing toward any other person,
(h) wilfully disobeys or fails to obey any regulation or rule
governing the conduct of inmates,
(i) has contraband in his possession,
(j) deals in contraband with any other person,
(k) does any act that is calculated to prejudice the discipline
or good order of the institution,
(1) does any act with intent to escape or to assist another
inmate to escape,
(m) gives or offers a bribe or reward to any person for any
purpose,
(n) contravenes any rule, regulation or directive made under
the Act, or
(o) attempts to do anything mentioned in paragraphs (a) to
(n).
Some of the plaintiffs further allege that they
were detained in SCU for the sole reason that
there were charges pending against them in out
side Courts. There is the further claim that said
regulation 2.30(1) where it purports to authorize
the defendant Cernetic to impose, at his absolute
discretion, the confinement of the plaintiffs in the
SCU, constitutes an arbitrary detention and
imprisonment and abrogates the plaintiffs' rights
guaranteed under sections 1(a) and 2(a) of the
Canadian Bill of Rights.
The plaintiffs further allege confinement in the
SCU contrary to regulation 2.30(2) in that they
are being deprived of privileges and amenities
enjoyed by inmates not confined in the SCU,
which privileges and amenities could reasonably be
enjoyed by them in the SCU. Paragraph 12 of the
further amended statement of claim provides par
ticulars of said privileges and amenities.
The plaintiffs also allege non-compliance with
regulation 2.07 (provision of toilet and other
articles necessary for personal hygiene) and with
regulation 2.06 (provision of essential medical and
dental care).
The plaintiffs also allege improper use of tear
gas and improper pointing of high-powered rifles
in circumstances where such use of force is not
authorized by law.
There is the further allegation that the defend
ant Cernetic has improperly delegated the author
ity given him under regulation 2.30(1) and that
the decision to confine the plaintiffs, or some of
them, in the SCU has been made by persons other
than the institutional head and that such confine
ment is therefore unlawful and unauthorized by
law.
The plaintiffs also allege that during their dis
sociation under regulation 2.30(1), they have not
had their cases reviewed on a monthly basis by the
Classification Board as required by regulation
2.30(1).
The plaintiffs conclude their further amended
statement of claim by alleging that the treatment
received by them has caused them considerable
suffering and anguish to such an extent as to bring
about, under certain circumstances, both physical
and psychological deterioration, attempted suicide,
self-mutilation and other direct or indirect
reactions.
Plaintiffs' prayer for relief asks, inter alia, for
the following:
(a) a declaration that their confinement in the
SCU at the B.C. Penitentiary amounts to the
imposition of cruel and unusual treatment or
punishment and is contrary to section 2(b)
(supra) of the Canadian Bill of Rights and is
not authorized by law;
(b) a declaration that confinement in said SCU
without notice of charges, a hearing before an
impartial decision maker, a right to make full
answer in defence and to present and cross-
examine witnesses, deprives the plaintiffs of the
right to a fair hearing in accordance with the
principles of fundamental justice and is contrary
to section 2(e) of the Canadian Bill of Rights
and the right not to be deprived of security of
the person except by due process of law, guaran
teed by section 1(a) of the Canadian Bill of
Rights, and is not authorized by law;
(c) a declaration that regulation 2.30(1) is inop
erative because it conflicts with provisions of the
Canadian Bill of Rights; and
(g) an order compelling the defendants to act in
accordance with the Court's declarations.
I propose to deal firstly with paragraph (a) of
the plaintiffs' prayer for relief which, for purposes
of brevity, I will consider under the heading:
A. CRUEL AND UNUSUAL TREATMENT OR
PUNISHMENT.
For the purposes of this heading, I propose to
summarize the evidence given under three
sub-headings:
(a) personal background and history of the
plaintiffs;
(b) the evidence concerning the conditions in
the SCU at the B.C. Penitentiary; and
(c) the evidence as to the effect of confinement
in the SCU on the plaintiffs.
(a) Personal Background and History of the
plaintiffs:
ANDREW BRUCE -27 years old—a grade 7 educa-
tion—first came into conflict with the law at the
age of 8—again at 13 years and 14 years. At age
16, was sentenced to 4 years in jail and escaped
after serving 13 months—was later sentenced to a
term of 4 years, 9 months. In 1970, he was convict
ed of non-capital murder which sentence he is
currently serving. Bruce spent considerable time
both at Okalla prison and at Haney Correctional
Institute in solitary confinement. He first entered
SCU at B.C. Penitentiary at age 17 (punitive
dissociation under regulation 2.29-30 days for
possession of contraband). He first went into SCU
under regulation 2.30(1)(a) (sometimes referred to
as administrative dissociation as opposed to puni
tive dissociation under regulation 2.29) at the B.C.
Penitentiary in August of 1970. He remained in
said SCU for most of the time thereafter until
March 16, 1972 (either under regulation 2.29 or
2.30). In August of 1972, Bruce was transferred to
the Saskatchewan Penitentiary at Prince Albert
where he was immediately placed in the SCU for
about a month. He attempted to escape from
Prince Albert along with the plaintiff, Quiring.
Bruce and Quiring took three guards as hostages
using a home-made gun and a barber's straight
razor as weapons. In the course of this escape
attempt, one guard was stabbed and Bruce was
charged with attempted murder. On November 15,
1973, Bruce was returned to the B.C. Penitentiary
from Prince Albert and remained in administrative
dissociation there until December of 1974. From
August of 1970 to December of 1974, Bruce spent
approximately 793 days in administrative dissocia
tion (regulation 2.30(1) (a)) at the B.C.
Penitentiary.
RALPH COCHRANE-49 years old—grade 7 educa-
tion—has been in conflict with the law since he
was 14 years of age. Has spent most of his adult
life in prison. Most of his offences have been bank
robberies. Presently serving a life sentence for
armed robbery with violence. Has been in most of
the Canadian penitentiaries and in solitary in most
of them. In July of 1974, Cochrane escaped from
the B.C. Penitentiary and was recaptured a few
hours later. Earlier at the Saskatchewan Peniten
tiary in Prince Albert, he also escaped. From
January of 1971 to September 13 of 1974, Coch-
rane spent approximately 552 days in administra
tive dissociation (regulation 2.30(1)(a)) at the
B.C. Penitentiary. His record does not show any
punitive dissociation under regulation 2.29.
WALTER DUDOWARD-36 years old—grade 8 edu-
cation—first came into conflict with the law at the
age of 11. Involved in a number of burglary,
breaking and entering and fraud charges. From
May of 1970 to March of 1974, Dudoward spent
approximately 106 days in administrative dissocia
tion (regulation 2.30(1)(a)). His record also shows
26 days of punitive dissociation under regulation
2.29.
JAKE QUIRING-39 years old—has been in conflict
with the law since the age of 10—convicted of
numerous charges of assaulting police officers,
robbery, and breaking and entering from 1955 to
1963. In 1972, convicted of robbery with violence
and in 1973 sentenced to life imprisonment for
non-capital murder. Involved with Bruce in escape
attempt involving taking of hostages at Saskatche-
wan Penitentiary, Prince Albert. Quiring spent
approximately 231 days from November 16, 1973
to July 4, 1974 in administrative dissociation at
the B.C. Penitentiary (regulation 2.30(1)(a)). Pre
vious to this, he had spent 8 months in a super
maximum security institution in Quebec and
approximately 300 days in the SCU at Prince
Albert. His record does not show any punitive
dissociation under regulation 2.29.
MELVIN MILLER -33 years old—quit school at 12
years of age—in an orphanage at age 15—first
came into conflict with the law at age 16. Between
1958 and 1964, Miller was convicted of several
offences involving breaking and entering and theft.
Presently serving 15 year term for robbery and 12
year term for attempted murder. Between January
of 1973 and September of 1974, Miller spent
approximately 343 days in administrative dissocia
tion (regulation 2.30(1)(a)) at the B.C. Penitentia
ry. During that period he also spent 11 days in
punitive dissociation under regulation 2.29.
JOHN EMMETT McCANN-30 years old—first
came into conflict with the law at 11 years of
age—confined to Bordeaux Jail at the age of 12—
in the "hole" for 4 or 5 days. Sentenced to 2 years
in St. Vincent de Paul Penitentiary for car theft
and escaping lawful custody at age of 15. Various
charges of theft, possession of forged documents
and stolen credit cards-1963 to 1966. Escaped in
1966 from Okalla. McCann was in SCU at B.C.
Penitentiary under administrative dissociation
(regulation 2.30(1)(a)) between January, 1967
and May of 1974 for a total of 1,471 days—one
continuous period of 98 days, another continuous
period of 90 days, another of 80 days, another of
754 days (July 23, 1970 to August 14, 1972),
another of 66 days and another of 342 days (from
June 4, 1973 to May 9, 1974). Escaped in June,
1972 and again in 1973. Presently serving a 15
year sentence for armed robbery.
DONALD OAG-25 years old—first came into con
flict with the law at 13 years of age—convicted at
age 17 for theft, at 18 for possession of an offen
sive weapon, at 19 for assault causing bodily harm.
At 19, he escaped from the Burwash Institution.
Oag was involved in the riot at the Kingston
Penitentiary in 1971 during which riot two inmates
were killed. Oag along with others was convicted
of manslaughter as a result of that incident. He
escaped from the Millhaven Institution in July of
1972. After recapture he was transferred to the
B.C. Penitentiary in January of 1973. In May of
1973, while attending a radiologist's office outside
the B.C. Penitentiary, Oag escaped custody,
having a knife in his possession at that time. He
was recaptured several hours later. Between Janu-
ary of 1973 and November of 1974, Oag spent
some 628 days in administrative dissociation
(regulation 2.30(1)(a)) in the B.C. Penitentiary of
which 573 days were spent continuously (January
17, 1973 to August 12, 1974). Additionally he
spent 16 days in August, 1974 and 30 days in
September and October, 1974 in punitive dissocia
tion (regulation 2.29).
(b) The Evidence concerning Conditions in the
SCU at the B.C. Penitentiary:
ANDREW BRUCE—The Solitary Confinement Unit
(referred to by some as the SCU and by others as
"The Penthouse") has 44 cells, divided into 4 tiers
containing 11 cells each. E tier is used primarily
for those in protective custody, F tier primarily for
those under punitive dissociation (regulation 2.29),
G tier primarily for those inmates under psychia
tric care and H tier, used primarily for those
inmates under administrative dissociation (regula-
tion 2.30(1)(a)). Bruce described the cells in H
tier as follows: 11'2" x 6'6" in size; the occupant
sleeps on a cement slab 4" off the floor covered by
a sheet of plywood and a 4" thick foam mattress.
He is issued with 2 blankets, 2 sheets, a pillow case
and a foam rubber pillow. The room contains a
combination toilet and wash basin. In the wall
there is an air vent and a radio outlet. There are 3
gray cement walls with the entrance consisting of a
solid steel door having a 6" window. The cell is lit
by a light in the ceiling in the centre of the cell.
The light is on 24 hours a day but is dimmed
somewhat at night. Bruce described it as being
somewhat like a high and low beam on a car. He
also said: "You never get used to the light." Bruce
complained about the cell ventilation, saying it was
either too hot or too cold—usually too hot in the
summer and too cold in the winter. He also com
plained that he was only allowed to shave twice a
week, usually with cold water; that the average
exercise per day out of the cell was only 40
minutes and was confined to walking up and down
the corridor of H tier (about 75 feet in length) and
that there was no fresh air exercise. He com
plained also about lack of proper medical atten
tion; lack of hobbies; movies and television; the
radio being restricted to 2 channels; the limited
choice of available books and the limited canteen
privileges. He said that when he left his cell to pick
up his meal tray at the end of the corridor, the
guards would point their rifles at his head and
would make disparaging remarks. He also recalled
an incident where a guard, in September of 1970,
opened his window and emptied a cannister of tear
gas into his cell. He said that this action was
completely uncalled for because, while other H tier
inmates were banging on their doors and creating
a disturbance, he was not doing so. The tear gas
caused a skin rash and irritated his eyes for several
days. He also described the "skin frisk" procedure
in SCU, this procedure being followed whenever
an inmate left or returned to the SCU. Bruce said
the "skin frisk" was usually performed in the
domed part of SCU (the central exercise and
office area into which the 4 tiers, E, F, G and H
lead) in the presence of 5 or 6 guards. He said he
disliked this procedure very much. In cross-exami
nation, he said the conditions in the B.C. Peniten
tiary SCU were the worst he had encountered
anywhere. His exact words were "... no reasons
for being in there were given;" "they stood over
you with a gun" and "you were hassled more
there".
RALPH COCHRANE—Cochrane confirmed Bruce's
testimony concerning the cell conditions. He
expanded on Bruce's evidence concerning poor
ventilation in the cells. It is 11 feet from the floor
to the ceiling, the ventilation inlet is just below the
ceiling and Cochrane's comment was that the air
did not circulate to the floor at all. Concerning
exercise, he added that he found it very depressing
because there was no fresh air in solitary. He said:
"... you lose your appetite, you become nauseated
through lack of fresh air." He also complained
about the water cans and the razors not being
clean.
WALTER DUDOWARD—Dudoward complained
about the lack of fresh air and exercise and
endorsed the evidence of the other inmates that it
was very cold in his cell in the winter. He said he
lost 30 to 40 pounds while he was in the SCU. He
described a tear gas incident as occurring on
December 9, 1973. He also enlarged on the effect
on him of having an overhead light in his cell 24
hours a day. He said that it was impossible for him
to sleep, that he averaged only 2 hours per night of
sleep in the SCU. He said that because of the
continuous light "time didn't exist up there". In
cross-examination, he agreed "that there was a
sheet, pillowcase, blanket, towel and personal
clothing change weekly." In re-examination, he
said that there was no reduction of visits allowed
to SCU inmates. However, the visits allowed were
closed visits (mostly handcuffed and talking
through a screen) as opposed to the open visits
allowed to the general population.
JAKE QUIRING—Quiring agreed with the other
plaintiffs concerning the SCU conditions. He said
that guards had followed him on a number of
occasions when he was out of his cell to get his
meals and had pointed their guns at him. He
described it as follows: "The guards would jack
around with the hammer, they would click the
hammer." Quiring had been in a number of other
solitary confinement units in other Canadian pris
ons. He thought solitary in the B.C. Penitentiary
"about the worst in Canada". He said that he had
never had guns pointed at him at the super-max
imum security institution in Quebec or at the
Kingston or Prince Albert Penitentiaries. He also
complained about not being given any work to do
while in solitary at the B.C. Penitentiary. He made
the comment "All anybody understands here is
violence".
MELVIN MILLER—Miller complained about being
required to sleep in such a position that his head
was only 1 foot away from the toilet bowl. The 24
hour light also bothered him. He said "I can still
see that light". He described a tear gas incident in
December of 1973. He said that one of the guards
released a cannister of gas into his cell. He said the
guard later told him it was an accident. He said
that several guards pointed their guns at him and
on one occasion in 1973, a guard pumped a shot
gun which frightened him very much.
JOHN EMMETT McCANN—McCann agreed gen
erally with the evidence of the other plaintiffs as to
the conditions in solitary. He added that the "skin
frisks" described by the other plaintiffs bothered
him a great deal. He expressed the view that it was
"degrading" and "humiliating" and in his opinion,
the majority of the guards seemed to derive pleas
ure out of this procedure. He confirmed the evi
dence of the other plaintiffs concerning the point
ing of guns at the inmates of SCU by the guards
on the catwalk, noting that it happened mostly at
meal times. He confirmed Miller's evidence to the
effect that, while sleeping, the inmates were
required to be facing the door with their face near
the toilet bowl and said that if you did not comply
with this rule, a guard would be likely to throw
water on the bedding or kick the cell door. He
related a tear gas incident occurring in July, 1973
and agreed that the tear gas was released after
there had been a great deal of noise and banging
on the tier by the inmates in protest of a reduction
of the exercise period from approximately 1 1/2
hours to 1/2 hour, the minimum under the
regulations.
Turning now to the evidence adduced by the
defendants concerning conditions in the SCU at
the B.C. Penitentiary, I should observe, initially,
that the Director, the defendant Cernetic, agreed
generally with the description of the cells given by
the plaintiffs in evidence. Cernetic said that the
SCU is the top floor of a building known as B7,
said building having been constructed in 1935. The
SCU was built in 1963 or 1964 and was superim
posed on the older building. He said that in the
central office or "dome" area, there is an open
roof area with access to fresh air. The superstruc
ture consists of wooden beams and a fibreglass
roof (constructed 4 or 5 years ago) which allows
fresh air to flow in. He said the bedding issued to
SCU inmates was the same as that issued to the
general population of the B.C. Penitentiary except
ing that no steel beds or frames were allowed
(because of the possibility of dismantling same and
using them for weapons). He described the light-
ing as being a 116 watt bulb during the day with a
25 watt bulb at night, the night light being activat
ed between 9 and 10 p.m. (bed count time). He
gave as the rationale for the 24 hour light, the fact
that it enabled the staff to make cell checks every
20 minutes.
Cernetic did however disagree with the evidence
of the plaintiffs concerning the heating and ven
tilating system. He said the system was designed
by engineers of the Department of Public Works,
that it was a sealed ventilating system located in
the roof of the SCU building controlled by 2
thermostats and equipped with a fan, filters and
ducts, 1 duct servicing 4 or 5 cells. The exhaust
system is based on the natural flow of air. The cell
doors are one inch above the floor so that air can
escape into the tier area and ventilate through the
open windows. He added that the cell door used
was originally designed by architects and
engineers.
Concerning the exercise area, Cernetic pointed
out that the Commissioner's Directive on Inmate
Exercise (Exhibit 37) stipulated minimum limits
of 1/2 hour of fresh air exercise daily weather and
conditions permitting. He said the SCU area
makes provision for fresh air exercise in an open
courtyard into which fresh air flows. He said that
some of the guards allowed more exercise than the
1/2 hour minimum depending on the weather and
the availability of staff, etc. He also said he had
never received any complaints from the SCU
inmates about lack of fresh air exercise. Cernetic
disagreed with the evidence of the plaintiffs with
respect to alleged improper use of tear gas in the
SCU. He said that he investigated these com
plaints and satisfied himself, there had been no
unauthorized use of tear gas.
Concerning the pointing and use of firearms,
Cernetic gave his personal opinion that if a firearm
is pointed there must be a cause for its use. In his
view, the pointing of firearms, per se, is a useless
exercise. He went on to say that he did not believe
this was happening in the SCU area. He agreed it
could inadvertently be done by someone who is
excited or who has not been properly instructed. In
his view, the guards are normally properly
instructed in the use of firearms.
In cross-examination, when asked to compare
Millhaven and Archambault Institutions with the
B.C. Penitentiary, Cernetic agreed that in those
Institutions, each cell block has a courtyard area
utilized for fresh air exercise. He conceded they
were "well designed and intelligently utilized".
William M. Ford, now an officer in charge of
the SCU, and a guard in the SCU for considerable
periods of time since 1955, also gave evidence. He
refuted the plaintiffs' complaints about lack of
medical or psychiatric attention in the SCU. He
also refuted their complaints about shaving, can
teen privileges, hobbies, visits, radio and library
privileges.
Theodore Koenig, a guard for 7 years also testi
fied. He denied the allegations of the plaintiffs,
Oag and Bruce re pointing his gun at them. He
said that he always had his gun pointed at his side
and that he never pointed the gun at the inmates.
He also denied use by him of tear gas.
Daniel Young, a guard for some 11 years also
gave evidence. He denied pointing his gun at the
inmates. When describing the "skin frisks", he
explained that it was necessary to have 3 or 4
officers present with one or two of the officers
checking for drugs or knives. He said the "skin
frisks" were usually in the domed area or in the
shower stall with the inmates handing out their
clothing to be searched by the guards. He denied
making rude remarks to the inmates during such
searches. He also said he had not heard other
officers making rude remarks. He said he never
used tear gas in the SCU nor was it used in his
presence.
Joseph Carrier, a guard at the B.C. Penitentiary
for 17 years also gave evidence. He admits to using
tear gas once, after the October, 1973 riot. There
were 89 inmates in the SCU at that time which
necessitated several inmates being lodged in each
cell. The inmates were making a great deal of
noise, banging on the doors, etc. The use of tear
gas on this occasion was authorized by the Secu
rity Officer.
In cross-examination, he admitted that he
reduced the exercise period in SCU to the mini
mum 1/2 hour prescribed by the Regulations. He
denied threatening the plaintiff Miller with physi
cal violence while this trial was in progress. He
admitted, however, that he had expressed the fol
lowing opinion to the Supervisor of Recreation of
the Penitentiary (one Robin McKenzie) on Octo-
ber 2, 1975: "I should have put him (Miller) under
the apple tree a long time ago." The reference to
"under the apple tree" was a reference to the
Penitentiary's burial grounds.
Another guard, Donald Crawford, also gave evi
dence. He denied "fooling around with the gun".
He said he handled his gun in a military manner,
with the muzzle at the "at ease" position. He
denied ever pointing his gun at any of the
prisoners.
As a rebuttal witness, the plaintiffs called one
Michael G. Marshall to give evidence. Marshall
was employed as a guard at the B.C. Penitentiary
from July of 1971 until November of 1973. He
was, however, employed in the SCU for only 9
days in 1972 and 13 days in 1973. He said that it
was his practice and the practice generally of the
other guards to point their guns in the general
vicinity of the inmates while they were getting
their meals. He confirmed the plaintiffs' evidence
that almost always the exercise was conducted in
the tier corridor, not in the domed area. He also
agreed with the plaintiffs that most of the "skin
frisks" took place in the domed area in the pres
ence of sometimes as many as 8 guards and that
skin frisks in the shower stall were a rarity in his
experience.
(c) The Evidence as to the effect of Confinement
in the SCU on the Plaintiffs:
ANDREW BRucE—Bruce said that there were
inmates on H tier who were "stirbugs", the word
used by him to describe mentally unbalanced
individuals. He said that "after a month or so they
start to drag you down with them—you start to
fall apart". He referred specifically in this connec-
tion to inmates Bellemaire and McCaulley. Bel-
lemaire lived in the cell next to Bruce. Bruce said
it was obvious Bellemaire needed psychiatric help.
He described an incident where Bellemaire set fire
to himself. He said Bellemaire continually com
plained about having "a machine in his head".
Bruce was in the adjoining cell when Bellemaire
committed suicide by hanging himself in April,
1974. Concerning inmate McCaulley, he said that
he observed how long periods of confinement in
solitary had affected McCaulley. He remarked
that he had known McCaulley earlier when he was
"sensible". He said that when McCaulley "went to
pieces, I went a little crazy too, because I saw
what it was doing to my friends". He said that he
saw himself starting to slide and that he "slashed"
himself on several occasions. When asked to
describe the effect of solitary confinement on him,
he said "You get twisted about it. Your frustration
turns to hate towards the guards and all the people
who keep you there." He said that he hallucinated
the last time he was in the SCU. On that occasion,
he was in solitary continuously from November of
1972 to December of 1974, a two-year period
(approximately 12 months at Prince Albert and 12
months at the B.C. Penitentiary). He described his
hallucinations in this manner: "You see things and
people you know aren't there. You try to tell
yourself it isn't happening". He said that he
attempted suicide_ on three occasions in the fall
months of 1974. He said that when he was in
solitary, he found it impossible to concentrate.
When reading he said: "you read half a sentence
and then chase the rest of the sentence around the
page." When he returned from solitary to the
general prison population, he had great difficulty
"fitting in". He said that he was unable to con
verse with the other inmates. He said, "You don't
laugh at the things they laugh at". However, he
observed: "Your hate helps you to cope".
RALPH cocHRANE—Cochrane said that the guard
on the catwalk pointing his gun at him while he
was getting his meals affected him psychologically.
He said of the guards: "They use psychology on
you—they try to mould individuals to react their
way because it justifies their concept. They play
this brain-washing game."
Cochrane confirmed the evidence of Bruce con
cerning inmate McCaulley. He said McCaulley
was not the same man he once was. In Cochrane's
view, McCaulley should have been in a mental
institution. He said "it frustrated me because I
knew he needed a psychiatrist. He is `Bonkers', he
can't stand still, he punches the solid steel door
with his hands, his knuckles are swollen. I feel a
responsibility for what is going on up there—I see
these inmates coming down from up there with
faces and arms slashed." He agreed with Bruce
concerning the difficulty in adjusting when
released from solitary to the general population.
He said: "my feelings of hostility will never leave
but I fight it because I realize my own bed of
bitterness can destroy me." He said the most
difficult thing for him in his solitary confinement
was the fact you did not know why you were there
or for how long.
WALTER DUDOWARD—Dudoward described soli
tary as "a very bad experience, very frustrating".
He said that he became paranoid, finding himself
full of hate and resentments, and said that he still
has these resentments. He said: "it puts you under
extreme pressure." He said the guards play "head
game tricks with you". He related that one guard
kept telling him throughout his solitary confine
ment that he would be released soon whereas, he
said, that he later learned there had been no
review of his case until March of 1974. He con
firmed the evidence of the other plaintiffs referred
to (supra) concerning the condition of Bellemaire
and McCaulley. Of McCaulley, he said that his
condition "upset me. I realized I might get in this
position if I didn't take hold of myself." He also
said he had difficulty in adjusting upon his release
from SCU. He said he "heard voices" for a time.
He said that thereafter, he was strictly negative
(full of hatred and resentments).
JAKE QUIRING—Quiring said the solitary confine
ment was "hard to handle". He said that he
became emotional and was unable to control his
feelings. He experienced similar adjustment prob
lems upon return to the general population as
those described by the other plaintiffs (supra). He
said that he also hallucinated in solitary. His
general comment about the B.C. Penitentiary was
"this is a laugh—they don't want to help you—
they lock you up and forget about you."
MELVIN MILLER—Miller said "if they would beat
you, I could handle that but how do you cope with
insanity? ... I can't explain some things to you—
you have no idea ... no idea in the world ... the
effect ... I've known men to actually beat their
heads against the wall." At another point he said
"... if I put myself back to the condition I felt at
that time it's going to offend you. It's not that far
away. I don't want to offend the Court. I don't
want to offend anybody, but how the hell do you
cope with loneliness? That goddam light burning
on you ... all the time ... severe headaches from
it ... you feel hate, frustration ...". Miller con
firmed the evidence of the other plaintiffs concern
ing the difficulty of adjustment after release from
solitary. He said his reactions were slow and he
could not function with other people.
JOHN EMMETT MCCANN—MCCann was particu
larly incensed over being placed in the SCU under
regulation 2.30(1)(a) without being given any rea
sons therefor. He contacted several administration
officials but said "everybody passed the buck." He
set himself afire in the SCU as a protest against
what he considered unjust and unfair treatment.
He said "I didn't want to be there anymore ... I
wanted to get out ... I didn't care about ...
dying".
He said that he was very upset about Bel-
lemaire's death, that he asked to testify at Bel-
lemaire's inquest but his request was refused. He
said that he started hallucinating approximately 6
months after he had been placed in solitary. He
summarized the aspects of solitary that really
bothered him as follows:
1. The fact he was sent to solitary without
reasons being given and with no indication as to
the length of his incarceration.
2. He was not allowed proper communication
with the classification officers.
3. He was subject to lies and deceit "they don't
tell the truth—they put you off and don't give
real reasons".
4. He was much affected by the self-mutilation
of the other inmates and by the death of
Bellemaire.
He said he was getting close to a similar state
himself. He said "they were killing us mentally,
not physically". He said that his terms in solitary
increased his hostility and bitterness. He expressed
the view that an inmate returning to the general
population from solitary was a "marked man" so
far as the guards were concerned. He agreed with
the earlier evidence as to the mental deterioration
of McCaulley in solitary. He said that he observed
the physical and mental deterioration of the plain
tiff Oag while he was in solitary.
Extensive expert medical and psychiatric evi
dence was called by both parties as to the effect on
the plaintiffs of the solitary confinement imposed
on them at the B.C. Penitentiary. The first of such
witnesses called by the plaintiffs was Dr. Richard
R. Korn, the Executive Director of the Centre for
the Study of Criminal Justice at Berkeley, Cali-
fornia. He obtained his Ph.D. in Social Psychology
at New York University and has 23 years of
experience and research in criminology and
penology. For 4 years, he was in charge of all
aspects of the treatment programme at the New
Jersey State Prison, being an associate warden of
that institution. Since 1967, he has conducted
annual training workshops for judges, policemen,
prosecutors, parole officers and legislators wherein
for a period of some days, these individuals live in
a prison with the prison inmates. Dr. Korn has
appeared before Congressional Committees in the
U.S.A. in this field as well as teaching at various
American universities. Dr. Korn has also written a
textbook in criminology and penology. In that
textbook he describes his experience in the New
Jersey State Prison where he was responsible for
inmate treatment and guard training in the special
segregation unit. He has also visited and investi
gated some 10 penal institutions in various parts of
the U.S.A. In my opinion, Dr. Korn is a highly
qualified expert and gave impressive and credible
evidence at the trial of this action. Dr. Korn spent
some 11 hours at the B.C. Penitentiary in Febru-
ary of 1975, interviewed all of the plaintiffs and
some of the guards and officials including the
defendant, Cernetic. He was given a complete view
of the facilities and spent some 3 hours in the
SCU.
He was in Court while most of the plaintiffs
were giving their evidence. Dr. Korn was asked to
compare the conditions in the SCU at the B.C.
Penitentiary with those he had observed in other
penal institutions. He said that said conditions
were among the most severe he had seen any
where, and comparable to those in San Quentin,
California. He expressed the view generally that
the purpose of solitary confinement was to break a
man down, to break his capacity to resist and to
get him into a submissive state. He explained how
the prison forms a separate society where the
prisoner has his role, his job, his friends and these
things are related to maintaining his sense of
dignity and autonomy. When he is removed from
that society for reasons he knows not and for a
duration he knows not, "he passes into a night
mare. He becomes a nonperson .... He is con
demned to survive by techniques which would unfit
him for that open society." Of these plaintiffs, Dr.
Korn said "... they pointed out the ways they had
found to survive in isolation interfered with them
when they went out into the open prison". He
further stated that, in his experience, this process
is foolproof and if you keep it up long enough, it
will break anybody. In a U.S. prison where he was
employed, he stopped the practice of lengthy
period of solitary. He said "this is a form of
murder, it has to stop".
In describing the way inmates experience time
in solitary he said (pages 39 and 40): "Too heavy a
sentence (in SCU) can suffocate ... time stops
and then it begins to crush and you have that
suffocation, you have the tiny space, the relative
inaction and that crushing experience and the
mind begins to play its tricks to save itself ...".
On the issue of the permanency of detrimental
effects he said (page 52): "I would say that the
effects are lifelong".
Concerning a comparison of solitary confine
ment with physical punishment he said: "... the
evidence simply . is that you keep people long
enough, they will engage in self-torture, simply to
focus the pain, so obviously if the inmates choose
the infliction of punishment, physical punishment,
they have indicated the answer to that question.
Physical pain which is definite, which I can con
trol ... is much more bearable than a torment that
I can neither understand nor control." (Pages 43
and 44).
He gave it as his opinion that the plaintiffs had
suffered intensely because of solitary confinement
(transcript page 52). On the positive side, Dr.
Korn made the following recommendations for a
realistic programme of dissociation, bearing in
mind that dissociation is necessary for inmates
who are extremely dangerous, who have long
criminal records and a history of violence from the
time of their childhood:
1. A physically secure perimeter—within that
perimeter, the inmates must have all their ordi
nary rights and privileges.
2. They should be allowed visits from other
inmates within a secure area.
3. They should also be allowed visits from out
side volunteers such as clergymen, individuals
interested in penal reform, etc.
4. Access to therapists of their choice.
5. Larger cells (Dr. Korn found the size of the
cells "absolutely shocking") He also found the
solid door a bad and unnecessary condition.
6. Exercise under the sky. His comment was
that "even condemned men walk in the yard".
7. Less deprivation of personal articles—which
Dr. Korn considered unnecessary.
At page 58 of the transcript, Dr. Korn said:
"What I couldn't understand in B.C. Penitentiary
is the gratuitous cruelty, obvious, the unnecessary
cruelty. I can understand rigor when it is necessary
but what I can't put together is the unnecessary
aspect of it ... the tinyness of the cell, the thread
bare character of the articles ...". Of the 24 hour
light, Dr. Korn said he found this practice "primi-
tive". Of the requirement of always lying down in
one position, he found it "gratuitous and
shocking".
Dr. Korn gave as his opinion that the solitary as
administered under regulation 2.30(1)(a) at the
B.C. Penitentiary was cruel to the inmates and
very dangerous and cruel to the staff. He said
(page 64): "... it is cruel for everybody because it
endangers and terrifies the staff in its conse
quences. You cage men. You treat men as animals
and then you have every reason to fear them, so it
is cruel to the staff too".
Dr. Korn defined cruelty (page 64) as: "... the
infliction of pain either gratuitously or by intent
without ... effective regard to the welfare of the
person on whom it is being inflicted ... it is suffer
ing to no useful end to either party". It was his
opinion that solitary confinement does no good and
has a lot of harmful effects. He described it as a
"repudiated concept". At pages 65 and 66 he said:
"We do not put dangerous animals in the situation
that we put the men that I have seen. Just visit the
local zoo and the B.C. Penitentiary, how that can
be defended by a sovereign state, I don't know".
Finally, he expressed the view that solitary con
finement as practiced at the B.C. Penitentiary
serves no reasonable or rational penal purpose in
terms of deterrent, long range control, treatment
or reformation.
Dr. Stephen Fox, a Professor of Psychology at
the University of Iowa, also gave expert evidence
on behalf of the plaintiffs. Like Dr. Korn, Dr. Fox
also has impressive credentials. He holds a Ph.D.
degree from the University of Michigan and has
taught in his field at the University of Michigan
and at U.C.L.A. He has written about 100 articles
in the field of psychology and physiology, particu
larly relating to the brain and behaviour. He is
considered an expert in the field of sensory depri
vation, because of extensive research, initially with
animals and later with humans in social isolation
and in particular, isolation in prisons. He is famil
iar with a number of U.S. prisons and the solitary
confinement units in those prisons. Dr. Fox has
also testified before Congressional Sub-Commit
tees on several occasions concerning his experience
with prisoners in the U.S. penal system. He has
interviewed more than 100 persons who have
experienced solitary confinement. He interviewed
the plaintiffs in this action in February of 1975,
spending about 12 hours with them. He saw the
SCU facilities, and had short conversations with
some of the guards in the SCU. He heard most of
the plaintiffs give their evidence at trial. When
asked to compare the SCU facilities at the B.C.
Penitentiary with the other institutions with which
he was familiar, he said (page 22): "... they have
closed all of the holes comparable to the B.C.
Penitentiary that I have come in contact with in
the United States.... I think it is as severe as can
possibly be made under law at this time. It is
among certainly the worst I have ever seen". At
page 23 he said: "The facility is simply a standard
strip cell, a concrete vault in which people are
buried". At page 24 he said: "I think my feeling is
that it is among the worst possible isolation units,
in the style in which it is administered, and the
mode in which it is conducted". When asked to
comment on the presence of the 24 hour light, he
said at page 25: "... continuous illumination with
out variation is the same as no illumination.... It
is the removal essentially of all possible variation
in the environment. It is something that is
employed in international torture.... It is
designed, I believe, not so much for security pur
poses but to reduce again the individual to that
condition where there is no conceivable human
resistance, where they represent essentially noth
ing.... To come to have no meaning, to come to
be nothing is essentially the greatest human suffer
ing. That is to say it ultimately leads to insanity
and suicide". And at pages 31 and 32: "So the
demand for ultimate and total compliance is to
create a creature who has no respect for their own
life and to make a creature that has no respect for
their own life, they already long ago have no
respect for your life.... I am trying to say that a
person comes to have no dignity, no self-respect,
no identity, you are faced with the most violent,
the most dangerous possible human being. You
can't reduce men to that. You risk your life to
reduce them to that. ... There is an area you do
not want to enter, and that is to move to the place
where you have eliminated all possible dignity."
When asked if, in his view, there was anything
positive to be said in terms of penal reform about
solitary confinement, he replied in the negative.
Concerning the effect of the condition of inmate
McCaulley on the plaintiffs, he said (page 44):
".. . when McCaulley becomes insane to your face
they are McCaulley, that is all there is to it—there
is not one of them that does not hear their own
voice screaming when McCaulley screams. They
are McCaulley. They are McCaulley's insanity
and in them is McCaulley's insanity. When he
becomes insane and moves toward death, like Bel-
lemaire did, when they see insanity approaching
self-extinction, they know that that part of them is
moving to that place and they have to live with
their own insanity, and it is in front of them."
When comparing psychological treatment or pun
ishment with physical treatment or punishment,
Dr. Fox said the psychological punishment was
worse, that no physical punishment could
approach the psychological punishment suffered
by these plaintiffs. At pages 45 and 46, he said:
"Miller is at a place now where in fact he is very
close to believing that he would prefer almost to be
dead than to be exposed to it any further. It is not
the physical death that he fears. Most of them
prefer to die, they hang themselves rather than
sustain it. That's what the suicides are about. That
is what the mutilations are about .... It is infinite
ly more cruel to keep people alive in torture than it
is to kill them."
At page 48 he said: "There is a loss of some
thing else in these people produced by this condi
tion which is never recoverable, and I say that with
total conviction, and what is lost is the ability to
love." And still referring to this "loss of ability to
love", Dr. Fox said at page .50: "On the part of us,
to remove it (the ability to love) is to endanger any
individual that confronts them ever again. To
remove that from a person is to make them into
sub-human—it is sub-human, and to do that is to
be faced with a wild beast ...".
Dr. Fox commented on the effects of solitary on,
each of the plaintiffs and agreed that in all cases,
solitary had been cruel and torturous to each of
the plaintiffs, although the effects varied in degree
and extent with each plaintiff. At page 61, when
asked whether each of the plaintiffs had been
seriously affected by solitary, he said: "There is no
question about each of these people. Each one has
a different tolerance for the environment, each one
has a different way of coping with it, but that does
not justify the condition : . . . There is ultimately
Bellemaire. That is what the discussion is really
about, the ultimate McCaulley and Bellemaire. It
makes no difference that they didn't die, this is
just this round .... They are somewhere between
a real person and the death of their person now.
That is where they are, each of them, or some
where between those two places."
Dr. Anthony Marcus, a practising psychiatrist
in Vancouver, also gave evidence on behalf of the
plaintiffs. He had interviewed the plaintiffs in
February of 1974. He had also seen Bruce again in
June and July of 1974. He had heard Dr. Korn
give evidence and agreed with his evidence. He
described the SCU at B.C. Penitentiary as being
"a tomb within a tomb". His description of the
method of inmate- exercise was "It is like a dog on
parade". He said, "....there is no programme—
never has been". He said "... for me solitary
confinement is cruelty. I think the SCU unit is an
attempt to crush the human spirit and is cruel in
my words." He said that of the plaintiffs, he knew
McCann and Bruce the best and that "... these
men have suffered because of solitary confinement.
It has burnt into them that sense of hate, mistrust
and tension that they carry with them as part of
their personality. ... Within the present structure,
it has served no positive penal purpose."
He said concerning Bellemaire: "No one sen
tenced to prison in Canada should be found dead
in a cell". This, to him, indicated something dis
tressingly wrong. It was his view that all of the
plaintiffs had been seriously affected by solitary
confinement.
He summarized his opinion of solitary as being
the cause of "a searing attitude change, a sense of
hate and revenge, utter despair, cynicism, active
hallucinating experiences, claustrophobia...."
It was his opinion that the B.C. Penitentiary
standards do not meet the minimum U.N. stand
ards for the keeping of prisoners. In his view, the
SCU at B.C. Penitentiary was "... cruel, inhuman
and a degradation of the human spirit". On the
positive side, he said there needed to be more
amenities, no more degradation, staff who knew
how to handle the inmate as a person and enough
staff numerically to cope. In the SCU, he said the
staff should be one to one or more than one to one
and there must be a programme with a trained
staff to implement that programme.
Dr. Peter Suedfeld, head of the Department of
Psychology at the University of British Columbia,
was called to give evidence on behalf of the
defendants. Dr. Suedfeld has been involved in
research into the effect of sensory deprivation on
individuals. He did not, however, interview any of
the plaintiffs in this action nor did he hear their
evidence at trial (except a portion of McCann's
evidence). He has seen the SCU at B.C. Peniten
tiary and has talked to the defendant Cernetic and
to Dr. Muthanna (the full time psychiatrist at
B.C. Penitentiary) concerning the procedures fol
lowed in the SCU. Concerning Dr. Fox's report
which he had read and Dr. Fox's evidence which
he had heard, he stated that he could neither agree
or disagree with Dr. Fox's conclusions. At page 40
of his evidence, he agreed that if the period of
solitary were "extreme" (which he did not define),
the adaptive mechanisms of an inmate "would
tend to erode and the situation would become quite
stressful". When asked about permanent psycho
logical effects following a relatively short or
lengthy period of solitary, he said the effects would
vary tremendously depending on the individual
(page 42). At page 43, he said: "I would say that
people who have problems adapting in the first
place, to any environment, or to normal environ
ments would have problems in adapting to that
environment which is a generalized personality
characteristic I expect".
At page 58, he said: "I would expect that for
many people after some prolonged period of time
especially if there is no hope of being released
from that environment things would tend to
become inadequate and the individual would then
take on another form of reaction to the environ
ment. That may take place in the form of apathy,
... , fantasizing, general withdrawal from the
external environment into some kind of inner life
and in some cases I expect it could lead to
psychosis."
Dr. Suedfeld also expressed the view that isola
tion as a punitive technique sometimes serves only
to exacerbate problems of aggression and resent
ment and since in such cases, it is obviously coun-
ter-productive, it should be abandoned (see page
14, summary of evidence and pages 82 and 83, oral
testimony). He also said of solitary confinement
that its effectiveness is doubtful enough to warrant
rejection. He said "its use in punishment probably
detracts from its potential utility in therapy ... I
would be happy for one to see it removed from the
repertoire of punitive techniques." (transcript page
83).
At the conclusion of his evidence, Dr. Suedfeld
said that he did not have sufficient information to
conclude whether SCU conditions at the B.C.
Penitentiary could be characterized as being cruel
or not. He agreed that he would possibly have been
in a better position to give a firm opinion if he had
interviewed the plaintiffs.
Dr. George Scott, the Assistant Regional Direc
tor, Ontario Region, Canadian Penitentiary Ser
vice, the senior psychiatrist in that service, also
gave evidence on behalf of the defendants. He
presented the Court with statistics covering the
B.C. Penitentiary. These statistics established that
in 1974, 11 per cent of the population in SCU
were involved in slashing incidents compared to 1
per cent in the general population; 6.4 per cent of
the SCU inmates attempted suicide compared to
0.9 per cent in the general population; 1 inmate
killed himself in SCU as compared to none in the
general population and 8.3 per cent of SCU
inmates were involved in acts of violence compared
to 7.5 per cent in the general population.
Dr. K. C. Muthanna, the full time psychiatrist
at the B.C. Penitentiary also testified on behalf of
the defendants. In cross-examination, he agreed
that the inmates in solitary exhibited more anxiety
and stress. He also observed that people were more
resentful and hostile if they did not understand
why something was being done to them. He also
agreed that indeterminate sentences cause prob
lems of tension and resentment. He also agreed
with the evidence of the plaintiffs that it was
difficult to concentrate in solitary. He agreed that
from the point of view of psychotic treatment, the
facilities in the SCU are "atrocious". He said he
had made requests for improvements. He also said
that he could not think of anything less adequate
for McCaulley than a solitary confinement cell.
He said McCaulley was a schizophrenic psychotic.
Dr. Donald C. McDonald, a psychiatrist employed
on a part-time basis at the B.C. Penitentiary
agreed that McCaulley was seriously disturbed
and was psychotic. He agreed that it was disturb
ing to put people in solitary without reason and for
an indefinite period but said "... what choice did
we have?" He agreed that where solitary confine
ment is not voluntary, resentment occurs.
I turn now to a consideration of the legal princi
ples applicable to the relief asked for under Head
ing A. Counsel for both parties referred me to the
very recent decision of the British Columbia Court
of Appeal in The Queen v. Miller and Cockriell 5 .
That decision was an appeal from a conviction for
murder of a police constable and from the result
ing sentence of death. One of the grounds of
appeal was that the punishment of death for
murder is a "cruel and unusual punishment" and
thus prohibited from being applied by section 2(b)
of the Canadian Bill of Rights. Counsel for the
defendants urges upon me the reasoning adopted
by the majority of the Court as expressed in the
reasons for judgment of Robertson J.A. at pages
52 to 55 inclusive. Robertson J.A. gives three
reasons for rejecting this ground of appeal, said
reasons being summarized at page 55 of the judg
ment. In my respectful opinion, only the first
reason given by Mr. Justice Robertson has any
application to the case at bar because of the
different factual situation here present. His second
and third reasons flow from the fact, inter alia,
that both the Canadian Bill of Rights and the
Criminal Code are' enactments of Parliament. In
the case at bar, the Court must consider the effect
of a section of the Canadian Bill of Rights (passed
by Parliament) on a regulation passed by the
Governor in Council, (Cabinet). Thus, a portion of
the rationale as stated by Robertson J.A. for his
second and third reasons as set out on pages 52 to
55 does not apply in this case.
This leaves only the first reason which is set out
by Robertson J.A. at page 55 of the judgment as
follows:
... death as a punishment for murder is not "unusual" in the
ordinary and natural meaning of the word. In England from
time immemorial murder was punishable by death. It was so in
Canada before Confederation. Since Confederation it has been
the prescribed penalty, though in 1961 certain classes of
murder became punishable by imprisonment for life instead of
5 [1975] 6 W.W.R. 1.
death. The fact that since 1962 the Cabinet in their wisdom
have chosen to allow no sentences of death to be carried out
proves nothing more than that the sentiment of the majority of
the members of Cabinet has been against capital punishment.
In my opinion punishment by death has not become an unusual
punishment. [Emphasis added.]
With every deference to the views expressed by
Robertson J.A. for the majority of the British
Columbia Court of Appeal and referred to supra, I
find that the views on this question as expressed in
the dissenting judgment of McIntyre J.A. in the
same case commend themselves more to me than
do the views of the majority of the Court. At pages
68 and 69, Mr. Justice McIntyre said:
I now turn to a consideration of whether the punishment of
death can be said to be cruel and unusual. The words employed
to describe the forbidden punishment are conjunctive in form,
that is, cruel and unusual. Confusion has resulted at times from
the use of the two words. While there is a suggestion of a
differing view in England, in American judicial and academic
writing on the subject, which is the principal source of material
on this point, the words have generally been construed
disjunctively ....
It has been suggested that the use of the word "unusual" was
inadvertent in the English Bill of Rights and the general trend
of opinion suggests that it has not been given a limiting or
controlling influence on the word "cruelty". In my view, then, it
is permissible and preferable to read the words "cruel" and
"unusual" disjunctively so that cruel punishments however
usual in the ordinary sense of the term could come within the
proscription. The term "unusual" refers in my view not simply
to infrequency of imposition, because of course any severe
punishment, one would hope, would be rarely imposed but to
punishments unusual in the sense that they are not clearly
authorized by law, not known in penal practice or not accept
able by community standards.
And again at page 71 Mr. Justice McIntyre said:
In my view capital punishment would amount to cruel and
unusual punishment if it cannot be shown that its deterrent
value outweighs the objections which can be brought against it.
Furthermore, even assuming some deterrent value, I am of the
opinion it would be cruel and unusual if it is not in accord with
public standards of decency and propriety, if it is unnecessary
because of the existence of adequate alternatives, if it cannot be
applied upon a rational basis in accordance with ascertained or
ascertainable standards, and if it is excessive and out of propor
tion to the crimes it seeks to restrain.
Applying the tests suggested by McIntyre J.A.,
what, then, does the evidence adduced in the case
at bar establish? The cell conditions were estab
lished by the evidence of the plaintiffs, and not
materially contradicted by evidence adduced on
behalf of the defendants. The cells are approxi
mately 11' x 6' in size with a height of 1 1'—they
have 3 solid cement walls and a solid steel door.
There are no windows in the cell excepting a 6"
window in the cell door. The light in the cell is on
24 hours a day. All of the plaintiffs complained
about ventilation in the cells. The defendants led
evidence that the heating and ventilation system
was properly designed. However, no evidence was
led in direct contradiction of the plaintiffs' tes
timony that the ventilation was poor and that most
of the time the cells were either too hot or too cold.
The evidence about the shaving procedure was
conflicting and I do not ascribe much weight to it.
Concerning exercise, the evidence is clear that
certainly most of the time, the SCU inmates were
restricted to 30 or 40 minutes per day exercise.
While there was some suggestion from the defend
ants that there was fresh air exercise in the domed
area, the preponderance of evidence is to the effect
that most of the inmate exercise was confined to
the corridor of H tier some 75 feet in length and
that there was very little fresh air exercise. On the
evidence I find that the complaints about lack of
proper medical attention and lack of hobbies has
not been established nor do I attach much signifi
cance to the lack of movies and television or to the
radio restriction to two channels. So far as the
allegations concerning the pointing by guards of
their rifles at the inmates while the inmates were
getting their meal trays are concerned, the evi
dence is conflicting. On the balance of probabili
ties, considering that the inmates alleged these
incidents, and the guards who testified denied
them, and considering further the evidence of
Marshall (who, in reality was the only independent
witness on this issue since he no longer is employed
at the B.C. Penitentiary and since it was embar
rassing for him to give evidence considering the
circumstances surrounding the termination of his
employment there) I have concluded that at least
some of the guards on some occasions pointed their
guns in the general vicinity of the inmates while
they were getting their meals. I do not believe,
however, that this happened as frequently as
indicated in the evidence of the plaintiffs. Con
cerning the tear gas incidents alleged by the plain
tiffs, again, I find on the evidence, that this prob
ably occurred in isolated instances, some of which
were accidental and in other cases, the use of tear
gas was a proper and authorized use. Concerning
"skin frisks", it was conceded that said procedure
was a necessary security precaution but perhaps in
some instances, more guards than were necessary
participated and observed said procedure. I find
that the allegation concerning the requirement to
always sleep in the same position in close proximi
ty to the toilet bowl has been established by the
evidence.
The evidence also establishes that the plaintiffs
spent the following periods in administrative dis
sociation under regulation 2.30(1) (a) at the B.C.
Penitentiary:
BRUCE—Between August, 1970 and December, 1974-793
days—longest continuous periods-258 days and 338 days
COCHRANE—Between January, 1971 and September, 1974-
552 days—longest continuous periods-247 days and 107 days
DUDOWARD—Between May, 1970 and March, 1974-106
days—longest continuous period-95 days
QUIRING—Between November 16, 1973 and July 4, 1974-231
days—longest continuous period-231 days
MILLER—Between January, 1973 and September, 1974-343
days—longest continuous periods-145 days and 128 days
MccANN—Between January, 1967 and May, 1974-1,471 days
with the following continuous periods: 98 days, 90 days, 80
days, 754 days, 66 days and 342 days
oAG—Between January, 1973 and November, 1974-682
days—longest continuous period-573 days.
Most, if not all of the plaintiffs complained that
one of the worst features of administrative dis
sociation at the B.C. Penitentiary was the fact that
they were not given any reason for being so incar
cerated and, they were not advised of the length of
their stay, and during said period of incarceration,
proper review procedures were not carried out.
To rebut these allegations, the defendant Cer-
netic and Fred Leech gave evidence. Cernetic
came to B.C. Penitentiary as Director in January
of 1974 so his evidence relates only to the period
since then. He said that he delegated his authority
under section 2.30(1)(a) to the senior duty officers
who can make the decision to segregate but must
inform him within 24 hours. The inmate remains
in dissociation unless he countermands the duty
officer's decision. Reasons for the decision are
given which are sent to the inmate and the Assist
ant Directors. He also described the review proce
dures for the inmates dissociated under section
2.30(1) (a) which he instituted: The inmate must
be interviewed by a classification officer who
reported to the Inmate Training Board which dealt
with each case. The minutes of each Board meet
ing were prepared and approved by Cernetic. In
determining whether an inmate should be released
from administrative dissociation the following fac
tors were considered: (a) danger; (b) attitude; (c)
wants and needs; (d) length of stay; (e) reasons for
being there; (f) future plans; (g) general perform
ance; (h) tolerance; and (i) was he rebellious?
The evidence concerning the review procedure,
prior to Cernetic's term as Director was given by
Leech who, at all material times has been the
Deputy Director in charge of Security at the B.C.
Penitentiary. Leech required weekly a full report
by the officer in charge of SCU in respect of all
the inmates in SCU as to how they were function
ing, how long they had been there, etc. He also
required one of the Senior Correctional Officers to
appear before the Inmate Training Board on a
weekly basis. Said Board met weekly and the
situation of the inmates in SCU was discussed, not
necessarily on an in depth basis for each inmate
but numerous conferences were called in respect of
individual inmates when their release was being
considered.
Both Cernetic and Leech gave detailed evidence
as to the reasons why each, of the plaintiffs was
sent to administrative dissociation and the reasons
why he was kept there. I do not propose to discuss
in detail this evidence except to say that, while, in
some cases, the plaintiff inmate may not formally
have been advised as to the reason for his incarcer
ation, I am satisfied that in most cases he was
aware of the reasons. I am also satisfied on the
evidence that the plaintiffs' cases were reviewed
periodically. I do believe however, that there was a
lack of communication between the administration
and the inmates as to the length of the stay and I
believe further that the indefinite and indetermi
nate nature of their incarceration did contribute,
at least to some extent, to their mental condition
which has been so graphically described by expert
witnesses.
I turn now to the expert evidence in the context
of attempting to assess whether the conditions in
solitary hereinbefore described can be said to con-
stitute cruel and unusual treatment or punishment.
Drs. Korn, Fox and Marcus were most positive
about their characterization of conditions in the
SCU at the B.C. Penitentiary. Drs. Korn and Fox
described it as among the worst they had ever
seen. They had no hesitation in describing it as
cruel treatment. Even Dr. Suedfeld, the defend
ants' expert agreed that if periods of solitary were
"extreme" which term he declined to define, most
harmful effects would result. Dr. Muthanna, the
psychiatrist at the B.C. Penitentiary also agreed
that solitary increased anxiety and stress.
I found the evidence of Drs. Korn, Fox and
Marcus more persuasive than that of Dr. Suedfeld
mainly because they had each spent considerable
time with the plaintiffs and were able to observe
first-hand the effects of solitary on them. Dr.
Suedfeld did not interview the plaintiffs at all nor
did he hear very much of their testimony in Court.
In any event, he did not contradict the evidence of
Drs. Korn, Fox and Marcus in any material par
ticular. When the expert evidence is considered
along with the evidence of the plaintiffs them
selves, I have no hesitation in concluding that the
treatment afforded them in solitary at the B.C.
Penitentiary has been cruel. Generally speaking, I
believe and accept the evidence of the plaintiffs as
to the conditions suffered by them in the SCU at
the B.C. Penitentiary and I also accept their
account of the effect of those conditions on them.
There was a tendency on their part to maximize
some of their complaints but, basically, their evi
dence as to conditions in solitary and its effect on
them was not contradicted and was, in my view,
credible.
Additionally, I have the view that said treatment
was also unusual within the meaning to be
ascribed to that term in the Canadian Bill of
Rights. Applying the tests set out by Mr. Justice
McIntyre referred to supra, said treatment serves
no positive penal purpose. A number of the expert
witnesses expressed this view as did the defendant
Cernetic. Cernetic said in cross-examination in
answer to the following question: "And you agree
with me, do you not, that solitary confinement as it
has been practiced under 2.30(a) at the B.C. Peni
tentiary does not serve any positive penal purpose?
A. In view of the facilities we are utilizing. Q. And
the program that you have to design because of
those facilities? A. That's correct".
Furthermore, even if it served some positive
penal purpose, I still think the treatment herein
described would be cruel and unusual because it is
not in accord with public standards of decency and
propriety, since it is unnecessary because of the
existence of adequate alternatives.
There can be no question of the need for
administrative dissociation in a maximum security
penal institution inter alia, "... for the mainte
nance of good order and discipline in the institu
tion," as authorized under regulation 2.30(1)(a).
The evidence in this case has clearly established
that at least some of the plaintiffs are dangerous
and unpredictable, others have shown a propensity
for escape and escape attempts. Thus, dissociation
is clearly necessary. However, "solitary", and "dis-
sociation" are not synonymous. Dr. Korn suggest
ed some seven different ways in which dissociation
could be accomplished and the more destructive
aspects of "solitary" removed and I have summa
rized these suggestions supra.
Dr. Fox put it another way (transcript page 73):
"I do not question at all Mr. Cernetic and Mr.
Leech's concern that there be adequate security
for these individuals but not to the point of
destroying them". On the positive side, Dr. Fox
has suggested "a program of equal dialogue and
self determination inside of the institution ..."
(transcript pages 77 and 78). He suggests that this
dialogue must be tri -partite: between the adminis
tration, the guards and the inmates. He says that
the administration and the guards are separate
entities, their peril is another peril and they
deserve full voice in every issue. He said at page
82: "They (the guards) are not robots to be
assigned that nightmare up there and say deal with
it ... they need full voice in that dialogue. It is a
three way dialogue because they are all members
of that family".
Dr. Marcus also said there should be a dialogue.
He said it was possible to make changes in atti
tudes and beliefs but that there must be a mandate
given to make it possible, i.e., the prison officials
must have a mandate to change from the officials
of the Federal Government. It was his view that
there should be changes in the Act, the Regula
tions and in overall instructions. He did believe,
however, that some changes could be made locally
without overall change from above. Professor
Michael Jackson, an assistant law professor at the
University of British Columbia, who has consider
able experience in forensic psychiatry and psy
chology in law and who is a member of the Review
Board established under the B.C. Mental Health
Act also had the view that there was need for more
participation by the inmates in the various proce
dures affecting the inmates and their incarceration
in SCU. It was his view that the Regulations did
not need changing as much as the attitude of some
of the prison officials.
This action is not a royal commission of inquiry
into conditions at the B.C. Penitentiary and the
above quotations from the expert evidence as to
positive suggestions for change are not to be so
construed. I refer to them in the context of
attempting to determine whether the conditions
established in evidence at this trial constitute "cru-
el and unusual treatment or punishment" since, in
my view, in so determining, I am entitled to con
sider the existence of adequate alternatives. Suf
fice it to say that on the evidence adduced, I am
satisfied that adequate alternatives do exist which
would remove the "cruel and unusual" aspects of
solitary while at the same time retaining the neces
sary security aspects of dissociation.
Before leaving this phase of the case, I should
observe that even were I to ascribe to the word
"unusual" its ordinary and natural meaning, it is
my opinion that a good argument could be made
for characterizing at least some of the treatment in
the SCU at B.C. Penitentiary as unusual. "Unusu-
al" is defined in the Shorter Oxford English Dic
tionary as: "Not often occurring or observed, dif
ferent from what is usual; out of the common,
remarkable, exceptional."
The defendants adduced no evidence in this case
to establish that the conditions in the SCU at B.C.
Penitentiary were similar to those in other Canadi-
an institutions or other institutions in other coun
tries. What evidence was adduced was given by the
plaintiffs and witnesses called by them and estab
lishes, at least to some extent, that conditions were
considerably more severe at the B.C. Penitentiary
SCU than in other similar institutions.
The plaintiffs Bruce and Quiring who had
experience in many other SCU's in other Canadi-
an penal institutions positively stated that condi
tions in the SCU at B.C. Penitentiary were the
worst they had encountered anywhere. The
defendant Cernetic conceded that at least two
other Canadian penal institutions had superior
facilities for fresh air exercise. The evidence deal
ing with the proximity of Bellemaire and McCaul-
ley to the other SCU inmates was not matched by
evidence of similar practices in other penal institu
tions. The U.S. experts said subject SCU was
amongst the worst they had ever seen—this evi
dence is certainly sufficient to categorize the B.C.
Penitentiary SCU as "different _ from what is usu
al". The evidence discussed earlier concerning
pointing of guns in the general direction of inmates
seems to put this Penitentiary in a class by itself
since none of the plaintiffs experienced this treat
ment in any other Canadian penal institution. Dr.
Korn said it was unique in his experience to see
rifles in a segregation unit (page 34). There was no
evidence that the 24 hour light was "usual" in
other Canadian institutions. There was no evidence
that the mandatory sleeping position was "usual"
in Canada or elsewhere. The length of the solitary
to which these plaintiffs have been subjected, is, of
itself, sufficient to categorize the treatment of
them as unusual. There was no evidence that the
solid walls and the solid door with the 6" window
were "usual". Thus, even if the word "unusual" is
given the restricted meaning ascribed to it by the
majority of the B.C. Court of Appeal in the Miller
and Cockriell case (supra), it is my view that the
facts established in the case at bar would come
within even that definition of "cruel and unusual".
For the foregoing reasons, it is my opinion that
all of the plaintiffs, excepting Baker (in respect of
whom no evidence was adduced) have established
that their confinement in the SCU at the B.C.
Penitentiary amounted to the imposition of cruel
and unusual treatment or punishment and was
contrary to section 2(b) of the Canadian Bill of
Rights.
In paragraph (c) of their prayer for relief, the
plaintiffs ask for a declaration that regulation
2.30(1) is inoperative because it conflicts with
provisions of the Canadian Bill of Rights. While
counsel for the plaintiffs argued for this relief in
his original submissions to the Court, in his reply
to the submissions of counsel for the defendants,
he stated that he was not now asking the Court for
a declaration rendering regulation 2.30(1) inopera
tive. In any event, it is my view of the law that the
plaintiffs have not established their right to the
relief asked for in paragraph (c) of their prayer for
relief.
In the case of Curr v. The Queen 6 , Mr. Justice
Laskin (as he then was) said at pages 899-900:
. compelling reasons ought to be advanced to justify the
Court in this case to employ a statutory (as contrasted with a
constitutional) jurisdiction to deny operative effect to a sub
stantive measure duly enacted by a Parliament constitutionally
competent to do so, and exercising its powers in accordance
with the tenets of responsible government, which underlie the
discharge of legislative authority under the British North
America Act. Those reasons must relate to objective and man
ageable standards by which a Court should be guided if scope is
to be found in s. 1(a) due process to silence otherwise com
petent federal legislation .... [Underlining mine.]
In the Burnshine case', Mr. Justice Martland
said at pages 707-8:
In my opinion, in order to succeed in the present case, it
would be necessary for the respondent, at least, to satisfy this
Court that, in enacting s. 150, Parliament was not seeking to
achieve a valid federal objective .... [Underlining mine.]
The relevant legislative competence in this case
is found in section 91, head 28, of the British
North America Act which gives the Federal Gov
ernment jurisdiction in respect of "the establish
ment, maintenance and management of penitenti
aries". In my view, the clearly stated objective of
regulation 2.30(1) is the maintenance of good
order and discipline within Canadian penitentiar
ies. This is, in my view, a valid federal objective
6 [1972] S.C.R. 889 at pages 899 and 900.
See: The Queen v. Burnshine [1975] 1 S.C.R. 693 at pages
707-8. See also: Attorney General of Canada v. Canard [1975]
3 W.W.R. 1 which follows the Burnshine case—see particular
ly Martland J. at page 13.
and for this reason, the regulation is intra vires
and cannot be declared inoperative.
I turn now to the declaration asked for by the
plaintiffs in paragraph (b) of the prayer for relief
which for purposes of brevity, I will consider under
the heading:
B. DUE PROCESS.
In asking for relief under this heading, the
plaintiffs rely on both sections 1(a) and 2(e) of the
Canadian Bill of Rights. In this connection, the
comments of Laskin J. in the Curr case (supra) at
page 898 of his judgment are pertinent. Mr. Jus
tice Laskin said:
I am unable to appreciate what more can be read into section
1(a) from a procedural standpoint than is already comprehend
ed by section 2(e) ("a fair hearing .in accordance with the
principles of fundamental justice") and by section 2(f) ("a fair
and public hearing by an independent and impartial tribunal.")
The question before the Supreme Court in Ex
parte McCaud 8 was the application of section 2(e)
of the Canadian Bill of Rights to a decision
concerning revocation of parole under the Parole
Act. At page 169, Mr. Justice Spence said:
The question of whether that sentence must be served in a
penal institution or may be served while released from the
institution and subject to the conditions of parole is altogether a
decision within the discretion of the Parole Board as an
administrative matter and is not in any way a judicial
determination.
The Federal Court of Appeal, in the case of
Howarth v. National Parole Board 9 followed the
McCaud case (supra) in holding that a Parole
Board decision to revoke parole is a decision of an
administrative nature not required by law to be
made on a judicial or quasi-judicial basis. At page
1022 of the judgment, Chief Justice Jackett made
the following statement which has particular
application to the case at bar:
A person who is under sentence of imprisonment has, by due
process of law, lost liberty to go where he wants and has
e [1965] 1 C.C.C. 168 at page 169.
9 [1973] F.C. 1018.
become an inmate of a prison where it is a matter for adminis
trative decision as to what part of the prison he shall inhabit at
any particular time. [Underlining mine.]
The majority of the Supreme Court of Canada
confirmed that decision. The latest decision of the
Supreme Court of Canada on this question is the
decision of Mitchell v. The Queen'''. At page 257
in that case, Mr. Justice Ritchie, who wrote the
majority judgment said:
The case of Howarth v. National Parole Board, supra,
affords ample authority for the proposition that the Parole
Board is a statutory body clothed with an unfettered discretion
in the administration of the Parole Act and that in so doing it is
not bound to act on a judicial or quasi-judicial basis. The very
nature of the task entrusted to this Board, involving as it does
the assessment of the character and qualities of prisoners and
the decision of the very difficult question as to whether or not a
particular prisoner is likely to benefit from re-introduction into
society on a supervised basis, all make it necessary that such a
Board be clothed with as wide a discretion as possible and that
its decision should not be open to question on appeal or
otherwise be subject to the same procedures as those which
accompany the review of decision of a judicial or quasi-judicial
tribunal. See Parole Act, s. 23.
On the basis of the above jurisprudence, I deem
it necessary to consider regulation 2.30(1) and to
determine from such consideration, whether it
imposes a duty on the institutional head of a
penitentiary to act on a judicial or a quasi-judicial
basis in dissociating an inmate under regulation
2.30(1). In making such a determination, it is
necessary to examine the defined scope of his
functions.
Regulation 2.30(1)(a) provides that where the
institutional head (defined by regulation 1.02(f) as
follows: "the officer who has been appointed under
the Act or these Regulations to be in charge of an
institution and includes, during his absence or
inability to act, his lawful deputy") is satisfied for
the maintenance of good order and discipline in
the institution that it is necessary or desirable that
a particular inmate should be dissociated,, he may
order such dissociation. The subsection further
provides for a review, not less than once a month
by the Classification Board and for a recommen
dation by that Board to the Institutional Head,
10 (1976) 24 C.C.C. (2d) 241.
said recommendation being either for release or
for retention in dissociation.
When it is considered that the inmate popula
tion of the B.C. Penitentiary was 530 in January of
1974 and is still approximately 400 and that most
of the other Federal penal institutions have popu
lations of several hundred each, that almost inevi
tably such an institution will be housing dangerous
and unpredictable inmates, with a long history of
crimes of violence, that many of the inmates have
a record of escapes, hostage-taking, and a tenden
cy to create disturbances and riots within the
institution, it becomes clear that the institutional
head must have the power to act decisively and
expeditiously to quell disturbances and to isolate
the offenders, for the protection of other inmates,
the staff of the institution, the property of the
institution and the public at large. An example of
this type of situation occurred in October of 1973
at the B.C. Penitentiary when a serious inmate
disturbance, described by some of the inmates as a
"riot" took place. Immediately thereafter, it was
necessary to incarcerate some 89 inmates in the
SCU. To say that in these circumstances regula
tion 2.30 requires due process before administra
tive dissociation would render the administration
powerless and a chaotic situation would result. The
same comment could be made with regard to a
mass escape attempt. I am satisfied, from a con
sideration of the plain words of regulation
2.30(1) (a) when considered in the context of the
scope of the functions of the institutional head that
the decision to dissociate under regulation 2.30(1)
is purely administrative and that neither sections
1(a) or 2(e) of the Canadian Bill of Rights apply
so as to entitle the plaintiffs to the declaration they
seek in paragraph (b) of the prayer for relief.
The plaintiffs' right to the relief asked for in
paragraphs (d), (e) and (f) of the further amended
statement of claim dated October 28, 1975 was not
in my view established, and this relief is according
ly declined.
Since I have found that all of the plaintiffs,
except Baker, have established that their SCU
confinement in the B.C. Penitentiary amounted to
the imposition of cruel and unusual treatment or
punishment contrary to section 2(b) of the
Canadian Bill of Rights, it remains to be decided
whether or not said plaintiffs are entitled to a
declaration to that effect since, none of said plain
tiffs are presently in said SCU. In the case of
Landreville v. The Queen", Pratte J. decided that
the Court had jurisdiction to make a declaration
which, though devoid of any legal effect, would,
from a practical point of view, serve some useful
purpose. In that judgment, Mr. Justice Pratte
cited with approval the judgments of Lord Den-
ning M.R. and Lord Salmon in Merricks v. Nott-
Bower [1964] 1 All E.R. 717. At page 721 of that
judgment Lord Denning said:
Then it is said: Accepting that view, what is the relief
claimed? All that is claimed is a series of declarations, all of
them to the effect that the transfer was made without regard to
the regulations and without regard to the principles of natural
justice. It is asked: What use can such declarations be at this
stage, when the transfer took place six and a half years ago?
What good does it do now? There can be no question of
re-opening the transfers. The plaintiffs have been serving in
these other divisions all this time. They cannot be transferred
back to Peckham. On this point we have been referred to a
number of cases which show how greatly the power to grant a
declaration has been widened in recent years. If a real question
is involved, which is not merely theoretical, and on which the
court's decision gives practical guidance, then the court in its
discretion can grant a declaration. A good instance is the recent
case on the football transfer system decided by WILBERFORCE,
J., Eastham v. Newcastle United Football Club, Ltd. ([1963] 3
All E.R. 139). Counsel for the plaintiffs said that, in this
particular case, the declaration might be of some use in remov
ing a slur which was cast against the plaintiffs by the transfer.
He also put it on the wider ground of the public interest that
the power to transfer can only be used in the interests of
administrative efficiency and not as a form of punishment. He
said that it would be valuable for the court so to declare. Again
on this point, but without determining the matter, it seems to
me that there is an arguable case that a declaration might serve
some useful purpose. We cannot at this stage say that the claim
should be rejected out of hand.
In my view, the case at bar encompasses the
kind of situation contemplated by Lord Denning in
the remarks quoted supra\ It seems to me that this
is a case where the Court can and should give
"practical guidance" to the authorities at the B.C.
Penitentiary and to the Canadian Penitentiary
Service. None of the plaintiffs in this action were
in the SCU at the time of trial. However, a
" [1973] F.C. 1223.
number of other inmates were in the SCU and
presumably are still there. Therefore, a declaration
in this case cannot be said to be merely academic.
Accordingly, there will be a declaration that the
confinement of all of the plaintiffs herein, except
ing the plaintiff Baker, in the Solitary Confine
ment Unit at the British Columbia Penitentiary
amounted to the imposition of cruel and unusual
treatment or punishment contrary to section 2(b)
of the Canadian Bill of Rights. The plaintiffs also
asked, in their prayer for relief (paragraph (g)),
for an order "to compel the defendants to act in
accordance with the declarations of this Honour
able Court." Plaintiffs' counsel did not, however,
cite any jurisprudence in support of this relief. On
the authorities, and on the facts of this case, I am
satisfied that the plaintiffs are not entitled-to this
relief' 2 .
Since the success in this action is divided, there
will be no order as to costs.
12 See for example: DeSmith 2nd Edition, Judicial Review of
Administrative Action, 562 and 563.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.