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location: publications / books / Justice Behind the Walls / Sector 4 / Chapter 1 Administrative Segregation: The Litmus Test of Legitimacy / McCann v. The Queen, 1975 -- The "Cruel and Unusual Punishment" Case

In recounting their experiences, each of the plaintiffs in McCann expressed their sense of the injustice and illegitimacy of entering administrative segregation. Andy Bruce described the differences between serving a sentence of 30 daysí segregation for a disciplinary offence and being placed indefinitely in administrative segregation.

[Punitive dissociation]ís easier. Itís a hell of a lot easier when you know when youíre getting out, youíve got a date in your mind and you know thatís when youíre going to be released and youíre going to go to the population. When youíre doing indefinite seg it just hangs over your head. You donít know what youíre supposed to do to get out of there because there is nothing you can do. Itís entirely up to them. They say it depends on your behaviour but thereís nothing you can do. You canít do nothing except get worse, and when you do get worse, they say thatís why youíre up there. (cited in Jackson, Prisoners of Isolation at 62-63)

The B.C. Penís head of security testified that he received a weekly report from the officer in charge of the Penthouse, which he forwarded to the Inmate Training Board. That board met weekly to review the report, and any comments made about a particular prisoner were entered in that prisonerís file to constitute what was termed at the trial "the running score." There was, however, no formal monthly review of each case. Jack McCann, for example, was confined in solitary from July 1970 until August 1972. For much of that time, his running score indicated that he was "quiet and co-operative." The July, August, September, October, November, December, and January reports of 1970-71 all used that terminology. However, Mr. McCann was not released, and his behaviour was even seen as having a dark underside; a January 1971 entry said he was "quiet and co-operative but his attitude might belie the mental activity which could take a devious route" (cited in Jackson, Prisoners of Isolation at 58).

Mr. Justice Heald, in his judgement in McCann, held that the confinement of the plaintiffs in the Penthouse constituted cruel and unusual punishment and was unlawful. However, he rejected the plaintiffsí claims that the placement of prisoners in administrative dissociation must be surrounded by a procedural framework, including personal hearings at which grounds for dissociation were presented and prisoners given an opportunity to make representations. Using the pre-Martineau legal framework, he held that the decision to place a prisoner in administrative dissociation was an "administrative" one not subject to judicial review, and that because a warden "must have the power to act decisively and expeditiously to quell disturbances and isolate the offenders," to require "due process before administrative dissociation would render the administration powerless and a chaotic situation would result" ( McCann v. the Queen [1976] 1 F.C. 570 at 612, cited in Jackson, Prisoners of Isolation at 124).

Within a week of Mr. Justice Healdís decision on December 30, 1975,, prisoners were moved out of the Penthouse and placed in regular cells equipped with standard beds and built-in desks/bookcases. The warden said that the change was made "to live up to the spirit of the judgement" ( The Vancouver Province, January 9, 1976). The press was invited in to see the new cells. However, in April 1976, after a hostage-taking incident by prisoners in segregation and in the face of guards' increasing hostility to the move (they demanded that the warden resign), prisoners were moved back to the Penthouse, the name of which had been changed to the Super-Maximum Unit.

The only change that had been made to the unit was that the 5-inch-square window in the steel doors had been enlarged to 18 inches by 30 inches. Only two changes were made in the regime of the unit: the light in the cell was turned off from midnight until six a.m. and prisoners now exercised in the central control area instead of the corridor outside the cells. This move was viewed as constituting "fresh air" exercise since the roof of the central control area was, at its extreme ends, open to the outside. There were no other changes. An editorial in the Vancouver Sun entitled "The Window of Contempt" reflected the views of prisoners on the extent to which the penitentiary had responded to the spirit of Mr. Justice Healdís decision. (Jackson, Prisoners at 141)

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The "Window of Contempt"