THE ORIGINS OF A PRISONERS' RIGHTS CASE: McCANN v. THE QUEEN

Jack Emmett McCann was kept in solitary confinement in the special correctional unit of the British Columbia Penitentiary under the authority of section 2.30(1Xa) from 23 July 1970 until 14 August 1972, a total of 754 days. In May 1973 Jack McCann escaped from the penitentiary. During his brief period of freedom he contacted a reporter for the Vancouver Sun and asked him to publicize the conditions under which men were kept in the special correctional unit for months and years at a time. After his recapture and return to the penitentiary on 1 June 1973 he was again placed in solitary confinement, where he remained until 9 May 1974. Shortly after his return to the penitentiary Jack McCann filed a handwritten statement of claim in the Trial Division of the Federal Court of Canada in which he claimed that he was 'being held arbitrarily in solitary confinement and [was] being subjected to cruel and unusual treatment and punishment.'9 In the fall of 1973 I received a letter from Jack McCann and visited with him in the British Columbia Penitentiary, at which time he showed me a copy of the papers he had filed and told me of the conditions in which he was confined. What was remarkable about the interview was that he spent much of his time explaining the effect that these conditions of confinement had on other prisoners. He asked me if I would interview them and try to do something for them. In particular he asked me to interview Donald Oag, who was in the next cell. When I interviewed Oag I found a man who, after some nine months of continuous solitary confinement in which time he had received only a single visit, appeared almost as a disembodied spirit. His face was ashen, his voice not much above a whisper. I saw on him the marks of his isolation: terrible scars across his neck and on his wrists and arms - the frightful evidence of his suicide attempts.

It was clear to me that issues of great importance were raised by Jack McCann's statement of claim. It was also clear to me that the documents he had filed would receive short shrift in the courts. I undertook to research the issues he had raised and to approach the Legal Aid Society of British Columbia to have senior counsel appointed to litigate these issues. On the basis of that undertaking Jack McCann's statement of claim and. the subsequent statement of claim filed on behalf of Donald Oag were adjourned. During the next six months, with the assistance of some very able law students, I researched the relevant law, paying particular attention to the development of prisoners' rights issues in the United States.

After the completion of my research I met with the then director of the Legal Aid Society of British Columbia, Frank Maczko, who, in light of the important issues involved, agreed to issue a legal aid certificate to litigate the matter. On the understanding that I would continue to be involved in the interviewing of prisoners and in the preparation of the legal argument, Vancouver lawyers Bryan Williams and Don Sorochan agreed to act as counsel in the case.10

Arrangements were then made with the director of the British Columbia penitentiary to interview every prisoner confined in the special correctional unit. A decision was made to file a statement of claim on behalf of a selected group of prisoners whose cases collectively raised the full spectrum of issues to be brought before the court. The plaintiffs whose names appear on the statement of claim filed in the case of McCann et al. v. The Queen and Dragan Cernetic11 include men who were regarded as the most dangerous prisoners in the Canadian penitentiary system.12 Between 1970 and 1974 the seven plaintiffs named in the statement of claim had spent a staggering total of 11½ years in solitary confinement. Jack McCann spent 1,471 days in solitary; the longest continuous periods were 754 and 342 days. Walter Dudoward spent 106 days in solitary; the longest continuous period was 95 days. Ralph Cochrane was in solitary for 552 days; the longest continuous periods were 247 and 107 days. Jake Quiring spent one continuous period in solitary of 231 days. Donald Oag was in solitary for 682 days; the longest continuous period was 573 days. Andrew Bruce was in solitary for 793 days; the longest continuous periods were 338 and 258 days. Melvin Miller was in solitary confinement for 343 days; the longest continuous periods were 145 and 128 days.13

In their statement of claim the plaintiffs alleged that their confinement in the special correctional unit (hereafter referred to as SCU) under the purported authority of section 2.30(1) of the Penitentiary Service Regulations abrogated and infringed upon their right to freedom from cruel and unusual treatment or punishment under section 2(b) of the Canadian Bill of Rights;14 that their confinement in SCU 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 and in accordance with the rights guaranteed to them under sections l(a) and 2(e) of the Canadian Bill of Rights; and that section 2.30(1) of the regulations, in purporting to authorize the director of the British Columbia Penitentiary to impose, at his absolute discretion, confinement of the plaintiffs in SCU, constituted an arbitrary detention and imprisonment and abrogated their rights under sections l(a) and 2(a) of the Canadian Bill of Rights.

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