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McCann v. The Queen, 1975 -- The "Cruel and Unusual Punishment" Case

At the core of Prisoners of Isolation were the experiences of a group of prisoners who, in 1974, had asked for my help in challenging the conditions of their solitary confinement in the notorious "Penthouse" of the B.C. Penitentiary; they had been detained there in some cases for years at a time. That challenge took the form of a Statement of Claim filed in the Federal Court of Canada in the name of Jack McCann and six other plaintiffs (filed June 4, 1974; No. T-2343-74). It asserted that the conditions of their confinement in "administrative segregation" constituted cruel and unusual treatment or punishment under section 2(b) of the Canadian Bill of Rights (R.S.C. 1960, c.144), and that their solitary confinement, without notice of any charges laid against them and without a hearing before an impartial decision-maker, deprived them of their right to a fair hearing in accordance with the principles of fundamental justice, guaranteed to them under sections 1(a) and 2(e) of the Bill of Rights.

The conditions in the "Penthouse" were appalling:

The cells measured 11 feet by 6 feet and consisted of three solid concrete walls and a solid steel door with a 5-inch-square window which could only be opened from outside the cell. Inside the cell, there was no proper bed. The prisoners slept on a cement slab four inches off the floor; the slab was covered by a sheet of plywood upon which was laid a four-inch-thick foam pad. Prisoners were provided with blankets, sheets and a foam-rubber pillow. About 2 feet from the end of the sleeping platform against the back wall was a combination toilet and wash-basin. An institutional rule required that the prisoner sleep with his head away from the door and next to the toilet bowl to facilitate inspection of the prisoners by the guards. Failure to comply with this rule would result in guards throwing water on the bedding or kicking the cell door. There were no other furnishings in the cell. One of the expert witnesses described the physical space as "one step above a strip cell . . . a concrete vault in which people are buried."

The cell was illuminated by a light that burned 24 hours a day. The 100-watt bulb was dimmed to 25 watts at night. The light was too bright to permit comfortable sleep and too dim to provide adequate illumination . . . Prisoners only had cold water in their cells. Twice a week they were given a cup of what was supposed to be hot water for shaving but which, they testified, was usually lukewarm. They were not permitted to have their own razors, and one razor was shared among all the prisoners on the tier . . .

The prisoners were confined in their concrete vaults for 23 hours a day. They were allowed out of their cells briefly to pick up their meals from the tray at the entrance to the tier and for exercise. That exercise was limited to walking up and down the 75-foot corridor in front of their cells. Exercise was taken under the continuous supervision of an armed guard who patrolled on the elevated catwalk. For the rest of the day prisoners were locked up in their cells.

Prisoners spoke to visitors through a screen and conversations were monitored by the staff. Standard procedure governing the movement of prisoners from the unit to the visiting area decreed that they be handcuffed to a restraining belt around their waist and that leg-irons be placed on them. Upon returning from the visit, prisoners were subjected to skin-frisks, even though they may never have left the sight of the escorting officer or had any physical contact with their visitors. (Jackson, Prisoners of Isolation at 48-49)

Harsh as they were, it was not just the physical conditions in the solitary confinement unit that constituted the principle basis for pain and suffering. The prisoner, upon climbing the stairs to the unit and entering the doors that isolated it from the rest of the prison, both literally and symbolically entered a different world. In the Penthouse, the worst things about prison -- the humiliation and degradation, the frustration, the despair, the loneliness, and the deep sense of antagonism between prisoners and guards -- were intensified. In my interviews with prisoners, and in their testimony before the court, they talked about how that antagonism often reached the point of gratuitous cruelty. Jack McCann testified that after a prisoner in solitary had slashed himself, an officer offered him (Mr. McCann) a razor blade so he, too, could "slash up." Evidence was given of mentally unstable prisoners being goaded by guards and beaten when they reacted. Even medical treatment became disguised punishment. In one incident, a prisoner who had refused oral medication from a hospital officer and would not allow himself to be injected was tear-gassed so that the medication could be administered. Tear-gassings were a ritualistic part of the regime, and even prisoners not primarily targetted suffered ill effects and received no subsequent change of clothing or bedding.

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The "Penthouse" at the BC Pen