The competing perspectives reflected in these cases, which raise serious questions about the extent to which the Charter has indeed enhanced the ability of prisoners to challenge the exercise of correctional authority, is also evidenced in the judgements of the Supreme Court of Canada. In Shubley ( [1990] 1 S.C.R. 3 ) Mr. Shubley was charged and found guilty of a disciplinary offence of assault on another prisoner at the Toronto West Detention Centre and was sentenced to five days in solitary confinement with a restricted diet. He was subsequently charged with the criminal offence of assault causing bodily harm. His argument was that having been convicted of the disciplinary offence, he could not be prosecuted again for a criminal offence because to do so would breach the protection against double punishment provided for by section 11(h) of the Charter. The Supreme Court in its previous decision of Wigglesworth [1987] 2 S.C.R. 541 had set out the test for what constituted an "offence" for which conviction or acquittal barred further prosecution. That test required that the prior proceedings be by their nature either "criminal proceedings" or their punishment involved "the imposition of true penal consequences." These were defined by the court as "imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline". ( Wigglesworth at 561)

Mr. Justice Cory writing in dissent in Shubley concluded that the imposition of solitary confinement fell within the definition of a true penal consequence. In so concluding he drew upon the language of "a prison within a prison" which had been used by Mr. Justice Dickson in his judgement in Martineau, in affirming the duty to act fairly, and by Mr. Justice LeDain in the Miller, Oswald and Morin trilogy, in affirming the applicability of habeas corpus to secure a prisoner's release from solitary confinement. Mr. Justice Cory wrote,

Prisons within prisons have been known to man as long as prisons have existed. As soon as castles had dungeons, there were special locations within those dungeons for torture and for solitary confinement. The grievous effects of solitary confinement have been almost instinctively appreciated since imprisonment was devised as a means of punishment. Prisons within prisons exist today, exemplified by solitary confinement.

The complete isolation of an inmate from others is quite different from confinement to a penal institution, where some form of contact with people, both inside and outside, is the norm. Close or solitary confinement is a severe form of punishment. The vast majority of the human race is gregarious in nature. To be deprived of human companionship for a period of up to 30 days can and must have very serious consequences. The literature of yesteryear and today is replete with the deterrent effects of such punishment.

Solitary confinement . . . is, in effect, an additional violation of whatever residual liberties an inmate may retain in the prison context and should be used only where it is justified. To say otherwise would mean that, once convicted, an inmate has forfeited all rights and can no longer question the validity of any supplementary form of punishment . . . Because of the tremendous psychological impact of long periods of solitary confinement, it would be unacceptable in our society to condemn a person to close or solitary confinement for the entire period of a significant term of imprisonment. For example, the imposition of a year of more of solitary confinement could probably not withstand a Charter challenge that it constituted cruel and unusual punishment. I would conclude, therefore, solitary confinement must be treated as a distinct form of punishment and that its imposition within a prison constitutes a true penal consequence. (Shubley at 9-10)

Madam Justice McLachlin, writing for the majority, concluded that the sanctions imposed upon prisoners did not constitute "true penal consequences" within the Wigglesworth test.

Confined as they are to the manner in which the inmate serves his time, involving neither punitive fines nor a sentence of imprisonment, they appear to be entirely commensurate with the goal of fostering internal prison discipline and are not of a magnitude or consequence that would be expected for addressing wrongs done to society at large. (at 23)

Nowhere in the majority's judgement is there any reference to the "prison within prison" language nor any analysis of the liberty interest retained by a prisoner after imprisonment and the effect of solitary confinement on that interest. The judgements of Madam Justice McLachlin and Mr. Justice Cory read like the proverbial ships passing in the night. Indeed, from reading Madam Justice McLachlin's judgement it is difficult to imagine that the court only five years previously had declared that placement in segregation involved "a significant reduction in the residual liberty of the inmate" and that it was important for the courts in their interpretation of liberty and remedies for its protection to be aware of "the modern realities of confinement in a prison setting". ( R v. Miller [1985] 2 S.C.R. 613 at 641 per LeDain J.) (See the critical discussion of the Shubley discussion in Allan Manson, Solitary Confinement, Remission and Prison Discipline (1990), 75 C.R. (3d) 356.)

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