McCann v. Canada

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)

[1976] 1 F.C. 570
Court File No. T-2343-74

Federal Court of Canada
TRIAL DIVISION
HEALD J.

Imprisonment - Solitary confinement - Plaintiffs are inmates 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 Canadian 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 Regulations 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 section 2.30, indefinitely without procedural protection or a hearing; (5) some also claim that they were detained due to pending outside charges, and that section 2.30(1) constitutes an arbitrary detention and imprisonment, abrogating their rights guaranteed 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 unlawfully; (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 alternatives. 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 section 1(a) nor 2(e) of the Canadian Bill of Rights applies so as to entitle plaintiffs to the declaration sought.

CASES JUDICIALLY CONSIDERED

Discussed:

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.

Applied:

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.

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 penitentiaries, 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 penitentiary 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 Cernetic) 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 Regulations, 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 provisions 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 [See Note 1 below] abrogates and infringes the plaintiffs' right to freedom from cruel and unusual treatment or punishment guaranteed under the Canadian Bill of Rights, S.C. 1960, c. 44, s. 2(b) [See Note 2 below]. Particulars of the said cruel and unusual treatment or punishment are contained in paragraph 5(a) to (j) inclusive of the further amended statement of claim dated October 28, 1975.

Note 1: 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 dissociated 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 limitations of the dissociation area and the necessity for the effective operation thereof.

Note 2: 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;
...

Note 3: 1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination 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 accordance with the principles of fundamental justice for the determination of his rights and obligations;

...

Additionally, some of the plaintiffs allege they were advised that they were suspected of institutional disciplinary offences under regulations 2.28 and 2.29 [See Note 4 below], 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 dissociation 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 cannot lawfully exceed 30 days (see regulation 2.28(4)(b)), they were retained in the SCU under non-punitive confinement indefinitely under regulation 2.30 without the benefit of any procedural protections, and without any hearing by the defendant Cernetic.

Note 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 institutional head.

(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,
(l) 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 outside 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 particulars 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 defendant Cernetic has improperly delegated the authority 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 confinement is therefore unlawful and unauthorized by law.

The plaintiffs also allege that during their dissociation 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, guaranteed 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 inoperative because it conflicts with provisions of the Canadian Bill of Rights; and

(d) 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.

¶ 18 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 education -- 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 convicted 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 punitive 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 dissociation (regulation 2.30(1)(a)) at the B.C. Penitentiary.

RALPH COCHRANE -- 49 years old grade 7 education -- 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 a hours later. Earlier at the Saskatchewan Penitentiary in Prince Albert, he also escaped. From January of 1971 to September 13 of 1974, Cochrane spent approximately 552 days in administrative dissociation (regulation 2.30(1)(a)) at the B.C. Penitentiary. His record does not show any a punitive dissociation under regulation 2.29.

WALTER DUDOWARD -- 36 years old -- grade 8 education -- 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 dissociation (regulation 2.30(1)(a)). His record also shows 126 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 Saskatchewan 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)). Previous 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 dissociation (regulation 2.30(1)(a)) at the B.C. Penitentiary. 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 conflict with the law at 13 years of age convicted at age 17 for theft, at 18 for possession of an offensive 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 January 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 a September and October, 1974 in punitive dissociation (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 psychiatric care and H tier, used primarily for those inmates under administrative dissociation (regulation 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 complained 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 complained also about lack of proper medical attention; 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 canister 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-examination, he said the conditions in the B.C. Penitentiary 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 a 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 prisons. 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-maximum 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 canister 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 shotgun which frightened him very much.

JOHN EMMETT McCANN -- McCann agreed generally 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 pleasure out of this procedure. He confirmed the evidence of the other plaintiffs concerning the pointing 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 superimposed 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 superstructure 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 excepting that no steel beds or frames were allowed (because of the possibility of dismantling same and using them for weapons). He described the lighting as being a 116 watt bulb during the day with a 25 watt bulb at night, the night light being activated 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 ventilating 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 complaints 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, canteen privileges, hobbies, visits, radio and library privileges.

Theodore Koenig, a guard for 7 years also testified. 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 Security Officer.

In cross-examination, he admitted that he reduced the exercise period in SCU to the minimum 1/2 hour prescribed by the Regulations. He denied threatening the plaintiff Miller with physical violence while this trial was in progress. He admitted, however, that he had expressed the following opinion to the Supervisor of Recreation of the Penitentiary (one Robin McKenzie) on October 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 evidence. 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 presence 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 connection to inmates Bellemaire and McCaulley. Bellemaire 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 complained 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 converse 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 concerning 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 solitary 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 confinement 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 confirmed 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 confinement was "hard to handle". He said that he became emotional and was unable to control his feelings. He experienced similar adjustment problems 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 confirmed the evidence of the other plaintiffs concerning 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 particularly incensed over being placed in the SCU under regulation 2.30(1)(a) without being given any reasons 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 Bellemaire's death, that he asked to testify at Bellemaire'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 plaintiff Oag while he was in solitary.

Extensive expert medical and psychiatric evidence 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, California. 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 investigated 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 February 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 a 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 anywhere, 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 nightmare. He becomes a non-person.... He is condemned 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 confinement 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 control ... 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 ordinary rights and privileges.
2. They should be allowed visits from other inmates within a secure area.
3. They should also be allowed visits from outside 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 threadbare character of the articles...". Of the 24 hour light, Dr. Korn said he found this practice "primitive". 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 consequences. 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 suffering 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 confinement 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, particularly relating to the brain and behaviour. He is considered an expert in the field of sensory deprivation, because of extensive research, initially with animals and later with humans in social isolation and in particular, isolation in prisons. He is familiar with a number of U.S. prisons and the solitary confinement units in those prisons. Dr. Fox has also testified before Congressional Sub-Committees 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 without 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 purposes but to reduce again the individual to that condition where there is no conceivable human resistance, where they represent essentially nothing.... To come to have no meaning, to come to be nothing is essentially the greatest human suffering. 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 Bellemaire 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 punishment 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 infinitely more cruel to keep people alive in torture than it is to kill them."

At page 48 he said: "There is a loss of something else in these people produced by this condition 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 somewhere 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 sentenced to prison in Canada should be found dead in a cell". This, to him, indicated something distressingly 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. standards 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. Penitentiary and has talked to the defendant Cernetic and to Dr. Muthanna (the full time psychiatrist at B.C. Penitentiary) concerning the procedures followed 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 psychological 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 environments 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 environment. 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 isolation as a punitive technique sometimes serves only to exacerbate problems of aggression and resentment and since in such cases, it is obviously counter-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 Director, Ontario Region, Canadian Penitentiary Service, 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 problems 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 disturbing to put people in solitary without reason and for an indefinite period but said "... what choice did we have?" He agreed that where solitary confinement is not voluntary, resentment occurs.

I turn now to a consideration of the legal principles applicable to the relief asked for under Heading 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 [See Note 5 below]. That decision was an appeal from a conviction for murder of a police constable and from the resulting 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 judgment. 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 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 acceptable 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 proportion 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 established by the evidence of the plaintiffs, and not materially contradicted by evidence adduced on behalf of the defendants. The cells are approximately 11' x 6' in size with a height of 11' -- 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' testimony 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 defendants 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 significance 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 evidence is conflicting. On the balance of probabilities, 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 embarrassing 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. Concerning the tear gas incidents alleged by the plaintiffs, again, I find on the evidence, that this probably 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 proximity to the toilet bowl has been established by the evidence.

The evidence also establishes that the plaintiffs spent the following periods in administrative dissociation 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 -- 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 dissociation at the B.C. Penitentiary was the fact that they were not given any reason for being so incarcerated 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 Cernetic 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 Assistant Directors. He also described the review procedures 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 meeting were prepared and approved by Cernetic. In determining whether an inmate should be released from administrative dissociation the following factors were considered: (a) danger; (b) attitude; (c) wants and needs; (d) length of stay; (e) reasons for being there; (f) future plans; (g) general performance; (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 functioning, 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 incarceration, 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 indeterminate 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 constitute 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 defendants' 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 particular. When the expert evidence is considered along with the evidence of the plaintiffs themselves, 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 evidence 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. Penitentiary 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 maintenance of good order and discipline in the institution," 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 "dissociation" are not synonymous. Dr. Korn suggested some seven different ways in which dissociation could be accomplished and the more destructive aspects of "solitary" removed and I have summarized 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 administration, 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 attitudes 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 Regulations and in overall instructions. He did believe, I 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 considerable experience in forensic psychiatry and psychology 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 procedures 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 "cruel and unusual treatment or punishment" since, in my view, in so determining, I am entitled to consider the existence of adequate alternatives. Suffice 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 necessary 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. "Unusual" is defined in the Shorter Oxford English Dictionary as: Not often occurring or observed, different 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 Canadian institutions or other institutions in other countries. What evidence was adduced was given by the plaintiffs and witnesses called by them and establishes, 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 Canadian penal institutions positively stated that conditions 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 dealing with the proximity of Bellemaire and McCaulley to the other SCU inmates was not matched by evidence of similar practices in other penal institutions. The U.S. experts said subject SCU was amongst the worst they had ever seen this evidence is certainly sufficient to categorize the B.C. Penitentiary SCU as "different from what is usual". 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 treatment 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) inoperative. 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 [See Note 6 below], 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 substantive 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 manageable standards by which a Court should be guided if scope is to be found in s. 1(a) due process to silence otherwise competent federal legislation.... [Underlining mine.]

In the Burnshine case [See Note 7 below], 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 Government jurisdiction in respect of "the establishment, maintenance and management of penitentiaries". In my view, the clearly stated objective of regulation 2.30(1) is the maintenance of good order and discipline within Canadian penitentiaries. This is, in my view, a valid federal objective 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. Justice Laskin said:

I am unable to appreciate what more can be read into section (a) from a procedural standpoint than is already comprehended 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 [See Note 8 below] 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 [See Note 9 below] 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 become an inmate of a prison where it is a matter for administrative 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 [See Note 10 below]. 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 recommendation by that Board to the Institutional Head, said recommendation being either for release or for retention in dissociation.

When it is considered that the inmate population 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 populations of several hundred each, that almost inevitably 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 tendency 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 regulation 2.30 requires due process before administrative 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 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 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 accordingly 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 plaintiffs are presently in said SCU. In the case of Landreville v. The Queen [See Note 11 below], 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 Denning 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 removing 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 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, excepting the plaintiff Baker, in the Solitary Confinement 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 Honourable 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 [See Note 12 below].

Since the success in this action is divided, there will be no order as to costs.