location: publications / books / Prisoners of Isolation: Solitary Confinement in Canada / Chapter 3 Solitary Confinement in the Age of Corrections: Cruel and Unusual Punishment in the Twentieth Century / The Origins of a Prisoners Rights Case: McCann v The Queen

The statement of claim alleged breaches of the Penitentiary Service Regulations in relation to the denial of the monthly review of the plaintiffs' cases required by section 2.30(1); the denial of amenities and privileges protected by section 2.30(2); the denial of adequate facilities for personal health and hygiene protected by section 2.07;15 and the denial of essential medical and dental care protected by section 2.06 of the regulations.16 The plaintiffs further alleged that contrary to the provisions of the Criminal Code, tear gas had been used on them in situations where the use of such force was excessive and that high-powered rifles had been pointed at them in circumstances where there was no lawful justification for doing so. The plaintiffs also alleged that during their confinement in SCU, mentally ill prisoners had been confined in the unit with them and had not been provided with the necessary psychiatric treatment required by section 3.05 of the regulations.17

The principal relief sought by the plaintiffs was declaratory. They asked the federal court to declare that their confinement in SCU at the British Columbia Penitentiary subjected them to cruel and unusual treatment or punishment, and violated their rights to a fair hearing in accordance with the principles of fundamental justice.

The case came to trial in the Trial Division of the Federal Court of Canada on 19 February 1975. By this time all of the plaintiffs had been released from segregation and Donald Oag had been transferred to an institution in eastern Canada. The day before the trial started Oag was returned to Vancouver, but escaped when he arrived at Vancouver Airport. He was still at large when the court convened the next day. Counsel for the Department of Justice, representing the director of the British Columbia Penitentiary, advised the judge, Mr Justice Heald, that the penitentiary authorities were of the view that the presence of the plain tiffs as a group in open court posed a substantial security risk and that the plaintiffs should be admitted to the court one at a time for the purpose of giving their evidence. Counsel for the plaintiffs urged that such a procedure in effect denied the prisoners. their right to participate fully in the trial, and argued that the court had no jurisdiction to bar prisoners in their capacity as plaintiffs from the court except upon the clearest demonstrated evidence that they were disturbing the proceedings and decorum of the court. In the course of argument, the director of the penitentiary and the sheriff appeared satisfied on the issue of security, provided that the plaintiffs remained in leg irons and manacles while they were in the courtroom. Mr Justice Heald ruled nevertheless that he was not satisfied; that as prisoners the plaintiffs had no common-law right to be present during the trial except for the purpose of giving their own evidence; and that under the Federal Court Rules the only power he had was to order them to appear as witnesses.18 Counsel for the plaintiffs immediately indicated their intention to appeal this ruling to the Federal Court of Appeal.

The Federal Court of Appeal affirmed in somewhat modified form the trial judge's ruling.19 Meanwhile negotiations commenced between counsel and the solicitor-general. An agreement was reached whereby the plaintiffs were issued temporary absence passes under section 26 of the Penitentiary Act 20 which permitted them to leave the penitentiary under escort for the purpose of appearing at the trial. In this, the first case in which a Canadian court heads extensive evidence from prisoners about conditions of solitary confinement, the presence of those prisoners in the courtroom was by sufferance of the penitentiary authorities, not by any admitted legal right.21

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