'CRUEL AND UNUSUAL' PUNISHMENT: THE PRINCIPLES APPLIED TO SOLITARY CONFINEMENT

As the final step in their legal argument on the application of section 2(b) to their confinement in SCU, the plaintiffs in the McCann case sought to apply the principles developed by Mr. Justice Brennan in Furman v. Georgia (as they had come to be applied in the American prison cases on solitary), and those articulated by Mr. Justice McIntyre in Miller and Cockriell.

Mr. Justice Brennan's first principle was that 'the punishment (or treatment) must not be so severe as to be degrading to the dignity of human beings.' The plaintiffs cited the evidence of their expert witnesses that solitary confinement in SCU was 'an attempt to crush the human spirit,' was designed 'to reduce the individual to that condition where there is no conceivable human resistance, where they represent essentially nothing' and 'to break their morale ...to break them down psychologically and make them submissive.' They cited their own evidence that they were reduced to self-mutilation and self-immolation, that they were forced to live with the imminent threat of their own insanity and death made manifest by the presence among them of men who were driven insane, of men who did indeed kill themselves on solitary row. They submitted that all this evidence amply demonstrated that their treatment was, in design and effect, degrading to the dignity of human beings.

Mr. Justice Brennan's second principle held that 'a severe punishment must not be unacceptable to a contemporary society' and must 'accord with public standards of decency and propriety.' He suggested that the task of the court is to review the history of the challenged punishment. There is support for this approach in the judgment of Chief Justice Laskin in Miller and Cockriell where, in addressing the question of the relevant tests for the application of section 2(b), he stated that

...there are social and moral considerations that enter into the scope and application of Section 2(b). Harshness of punishment and its severity in consequences are relative to the offence involved but, that being said, there still may be a question (to which history, too, may be called in aid of its resolution) whether the punishment prescribed is so excessive as to outrage standards of decency.57

The plaintiffs' argument reviewed the historical origins of solitary confinement and its eventual abandonment as a general penal practice. The plaintiffs pointed specifically to the 1892 codification of criminal law which provided that 'the punishment of solitary confinement or of the pillory shall not be awarded by any court.'68 They argued that Parliament had specifically outlawed the punishment of solitary confinement as being inconsistent with evolving standards of decency as they had developed to that point. How could it be said that these standards now permitted penitentiary officials, under the guise of an ambiguous regulation, to impose that which was so clearly rejected nearly one hundred years ago?

The historical research carried out for the purpose of this book shows that this argument, to the extent that it was based on the provision of the 1892 code, was not well founded. Within two years of the promulgation of the new code, the Prison of Isolation - specifically designed for solitary confinement - was opened at Kingston Penitentiary. However, the same research that shows that solitary confinement was not thought to be offensive to evolving standards in 1892 also reveals a useful framework for pouring historical content into the test of evolving standards in the context of prison conditions. In 1889, the inspector of penitentiaries, in his annual report to the minister of justice, refers to the changes made in the 'convict uniform' which had so distinctively identified prisoners as outcasts of society.

If there be one thing more than another in any system of prison administration that is calculated to demoralize and stamp out every vestige of manhood and self-respect, it is the zebra and piebald raiment which forms such a cruelly distinctive and prominent feature of some penal institutions. This barbarous relic of a period when no consideration was extended to the convict, when no interest was felt in his amelioration or well being, should, with the 'goose step' be incontinently done away with everywhere as out of keeping with our progress and enlightenment and unworthy of a Christian people [emphasis added].69

Practices calculated to stamp out a person's self-respect and dignity were seen in 1889 to be the essence of barbarous penal techniques. When the evidence given in McCann is applied to the framework of evolving standards suggested by Inspector Moylan, it becomes clear that solitary confinement in the 1980s, like the zebra and piebald uniform of the 1880s, is 'a barbarous relic ...out of keeping with our progress and enlightenment.'

The third principle identified by the American cases was that the punishment must not be arbitrarily inflicted. According to Mr. Justice McIntyre's restatement of the test, a punishment will conflict with section 2(b) 'if it cannot be applied on a rational basis in accordance with ascertained or ascertainable standards.' The plaintiffs in McCann submitted that they had described a system of decision-making in which men were confined in SCU, not necessarily because of what they had done, but because of what their reputations and attitudes were perceived to be by prison officials who could and did rely upon intuition rather than on any reasoned judgment based on proved facts. The only consistent theme which could be derived from that evidence, reinforced by the evidence of their treatment in SCU, was the tyrannical theme of arbitrariness.

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