Introduction

For people who are concerned with the law, the prison raises a cluster of disturbing paradoxes. We have become accustomed to seeing the prison as the vindicator of society's collective morality as expressed through the prohibitions of the Criminal Code. For those who dare to attack the security of our person and property, we see the prison as the vehicle for our collective vengeance. Yet, because the prison is the most forceful expression of society's condemnation, it raises the issue of the morality of state power in its starkest form. The prison, seen as the most powerful weapon in our armoury against those who would hurt us, is .the part of the criminal-justice system that is the least accessible to our gaze and the least amenable to public accountability. What the prison system does, by and large, it does behind closed doors -indeed, doors not just closed but barred, barbed, or encircled by forbidding walls. The prison has been described by one commentator as 'the darkest region in the apparatus of justice';1 and by another as the 'outlaw'2 of the criminal-justice system. This latter characterization implies that the prison, as the agent for defending our collective morality as defined by law, in carrying out its task itself offends against the law.

This book has as its focus the practice of solitary confinement in Canada's maximum-security penitentiaries, a practice that is regarded by those who have experienced it as the ultimate exercise of the prison's power over the lives of the imprisoned. The focus on solitary confinement is not a random choice. As the ultimate exercise of state authority over a prisoner, it can be seen as a litmus test of the morality and legitimacy of the state's dealings with prisoners in lesser exercises of authority. Indeed, that is how many prisoners see the matter.

People commit a grave error when they disregard what happens in Canada's prisons. They are not separated from society. They are part of it. We live on the same soil, are subject to the same laws, and governed by the same government. Because of our unique position in society, those facts are often ignored ...prisoners are on the bottom of the social ladder, but nevertheless are on that ladder. One weak rung should make any thinking person very skeptical of trusting the people controlling that ladder. It might well be that the rung they are on would prove itself the next weak one.3

This statement, made by a prisoner in 1981, echoes the sentiments expressed by William Allen over 150 years ago.

In prisons a part of the population ...is taken by the ruling powers and placed forcibly in a situation in which they cannot help themselves, from which they are necessarily defenceless and exposed to the last of evils, as well from neglect as from active cruelty. If a part of the population placed in a situation, so immediately under the eye of the ruling powers '" are not taken care of as they ought to be, is it not a matter of moral certainty that the other parts of the population are equally or still more neglected? The behaviour of government, therefore, in this department is a sample of its behaviour in all the rest.4

The striking continuity of these statements spanning 150 years is intimately related to the focus of this book; the analysis of solitary confinement, more than any other carceral practice, requires us to look to the social and political origins of the penitentiary system itself.

It was not merely an academic interest in the lessons of history that provided the impetus for this book. That came from prisoners who had been detained for long periods in solitary confinement in the British Columbia Penitentiary and who in 1974 asked me to help them challenge in the courts of Canada the conditions of their confinement. The facts and legal issues surrounding that challenge to solitary confinement in the case of McCann v. Her Majesty The Queen and Dragan Cernetic 5 form the centre-piece of this book. In reviewing the evidence and legal arguments in this case, which has been described as 'the most ambitious prisoners' rights case ever brought in Canada,'6 and the penitentiary authorities' response to it, I intend to hold up for analysis the legality of carceral power in the' Age of Corrections.'

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