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Mr. Justice Heald ruled that confinement of the plaintiffs in SCU did constitute cruel and unusual punishment or treatment within the meaning of section 2(b) of the Bill of Rights. In so finding he applied the tests set out in Mr. Justice McIntyre's judgment in Miller and Cockriell, preferring it to that of the majority of the Court of Appeal. However, the way in which the McIntyre tests are applied in the McCann judgment is somewhat elliptical, and some elaboration is necessary in order to assess the contribution the judgment makes to the interpretation of the 'cruel and unusual punishment' clause.

Mr. Justice Heald, having adopted Mr. Justice McIntyre's view that the terms 'cruel' and 'unusual' are to be viewed disjunctively, proceeded to deal with the terms conjunctively, characterizing the treatment of prison- ers in SCU first as 'cruel' and then as 'unusual.' In finding that the treatment was cruel, Mr. Justice Heald cited the fact that the plaintiffs' experts, Dr. Korn, Dr. Fox, and Dr. Marcus, 'had no hesitation in describing it as cruel treatment.' He added that 'when the expert evidence is considered along with the evidence of the plaintiffs themselves, I have no hesitation in concluding that the treatment afforded them in solitary at the BC Penitentiary has been cruel.'84

One way of reading Mr. Justice Heald's conclusion would be to see it as a referential incorporation of the experts' personal views of what constitutes cruelty. Indeed, this is just how Mr. Justice Toy in the later case of R. v. Bruce, Lucas and Wilson 85 so interpreted it. That case involved criminal charges of forcible confinement brought against three prisoners, including Andy Bruce; who had taken hostages inside the penitentiary when they were in the general population. Their defence was that of 'necessity'; they stated that they honestly believed that they were about to be returned to SCU and took the hostages as the lesser evil to avoid the greater evil of being placed in confinement that amounted to the imposition of cruel and unusual punishment or treatment. Dr. Korn and Dr. Fox testified before Mr. Justice Toy as witnesses for the defendants. In refusing to follow Mr. Justice Heald's conclusion that the conditions in SCU were cruel and unusual (the conditions in Bruce et al. were in all material respects identical to those which were the subject of the McCann case) Mr. Justice Toy viewed Mr. Justice Heald's conclusion that the conditions amounted to cruel treatment as being based upon the definitions of cruelty proferred by the expert witnesses. Mr. Justice Toy was of the opinion that in giving their definitions, Dr. Fox and Dr. Korn 'were, quite naturally for them, carrying on their dialogue in the witness box in the language of their discipline, namely Psychology ...In the context of construing and / or applying the laws of this coun try, however, such terminology overstates or exaggerates the effects and consequences on the accused in the context of section 2(b) of the Bill of Rights.'86

It can be argued, however, that Mr. Justice Heald was not simply adopting the experts' definitions of cruelty expressed in the technical language of psychology. Dr. Korn's definition of cruelty was directly related to Mr. Justice McIntyre's test of the punishment's unnecessary and gratuitous nature. Similarly, the conclusions of Dr. Marcus and Dr. Fox that the regime in SCU was cruel were related to the test of whether the punishment degraded the dignity of the prisoners as human beings. The evidence of these witnesses was extensively reviewed by Mr. Justice Heald, and his reference to their characterization of treatment in SCU as 'cruel' is to be seen against the backdrop of that review.

In dealing with the concept of 'unusual' Mr. Justice Heald applied the tests of Mr. Justice McIntyre. He concluded, based on the evidence of the expert witnesses and the admission of the director of the penitentiary, that the treatment served no positive penal purpose.87 However, the penal-purpose test was identified by MrJ ustice McIntyre not as a separate one for 'unusual' but rather for the compendious phrase 'cruel and unusual.' Indeed, Mr. Justice Heald seemed to acknowledge this in his application of the other McIntyre tests: 'Furthermore, even if it served some positive penal purpose, I still think the treatment would be cruel and unusual because it is not in accord with public standards of decency and propriety, since it is unnecessary because of the existence of adequate alternatives [emphasis added]'.88

In concluding that the regime in SCU did not accord with public standards of decency and propriety, Mr. Justice Heald did not rely upon the historical analysis submitted by the plaintiffs. He found that this non- accordance arose because he was 'satisfied that adequate alternatives do exist which would remove the 'cruel and unusual' aspects of solitary while at the same time retaining the necessary security aspects of dissociation.'89 Mr. Justice Heald appears here to be making the 'public decency' test conditional upon the 'necessity' test. However, Mr. Justice McIntyre clearly saw the tests of public decency and necessity as discrete, and not as so interrelated that the violation of the latter was a prerequisite to the violation of the former. In addition to giving no independent meaning to the public decency test, Mr. Justice Heald did not make any reference to the 'arbitrariness' test in reaching his conclusion on 'cruel and unusual.'

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