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Mr. Justice Heald sought to buttress his finding that the treatment in SCU was 'unusual' by finding that even given the restricted meaning ascribed to that phrase by the majority of the British Columbia Court of Appeal in the Miller and Cockriell case - that is, its ordinary and natural meaning as defined by the dictionary - certain aspects of the regime came within that definition.In support of this conclusion he cited the evidence of Andy Bruce and Jake Quiring that in light of their experience in other solitary-confinement units in Canadian penitentiaries the conditions in the SCU at the British Columbia Penitentiary were the worst they had experienced; the evidence of Mr. Cernetic that at least in two other Canadian maximum-security institutions there were superior facilities for fresh-air exercise; the evidence of guns being pointed at the prisoners (which put the SCU 'in a class by itself'); the evidence of Dr. Korn that 'it was unique in his experience to see rifles in a segregation unit'; and the lack of evidence that the twenty-four-hour light was 'usual' in other Canadian penitentiaries or that the mandatory sleeping position was employed elsewhere. Moreover, the length of time spent in solitary by the plaintiffs was 'of itself sufficient to categorize the treatment of them as unusual.'90

The task of formulating and applying the relevant principles underlying section 2(b) to conditions in the penitentiary arose a second time one year after the McCann judgment. As I have already indicated, Mr. Justice Toy, in R. v. Bruce, Lucas and Wilson, having before him evidence and legal argument substantially similar to that presented in McCann regarding the conditions in SCU, refused to follow Mr. Justice Heald's finding that those conditions constituted cruel and unusual punishment. Mr. Justice Toy based that refusal on three grounds. First, in his opinion the disjunctive interpretation of the phrase 'cruel and unusual' was 'in error in view of the non-acceptance of the alternative or disjunctive interpretation by any of the members of the Court who wrote judgments in the Supreme Court of Canada in Miller and Cockriell.'91 With great respect to Mr. Justice Toy, there is a double flaw in his argument. First, Chief Justice Laskin, writing for himself and two other members of the court, in viewing the 'cruel and unusual' clause as 'a compendious expression of a norm,' adopted a broad approach to the clause which is much closer to the disjunctive approach than the conjunctive. Second, as I have already described, Mr. Justice Heald, having stated his preference for the disjunctive approach, went on in the course of his judgment to consider separately both the cruelty and the unusualness of the treatment in SCU, and in effect applied the conjunctive approach favoured by the majority of the Supreme Court of Canada.

The second reason given by Mr. Justice Toy for not following Mr. Justice Heald involves the meaning ascribed to the term 'cruel.' I have previously dealt with this point and have shown that Mr. Justice Toy's inference that Mr. Justice Heald simply adopted the meaning given that term by expert witnesses is not a proper reading of the Heald judgment.

The third reason given by Mr. Justice Toy is that in his approach to the term 'unusual' Mr. Justice Heald diverges from the approach taken by Mr. Justice McIntyre, whom he purported to follow.92 I have already commented on the extent to which Mr. Justice Heald confused the McIntyre tests, although, since Mr. Justice McIntyre was not prepared to accord the term 'unusual' any limiting role on the proper meaning to be given section 2(b), Mr. Justice Toy's point is hardly a weighty one.

Mr. Justice Toy proceeded to apply his own interpretation of the proper tests to be used in construing section 2(b). Referring to the dictionary definition of 'cruel' as 'disposed to inflict suffering, indifferent to or taking pleasure in others' pain; merciless, pitiless, hardhearted,' he reviewed the evidence. While he was persuaded that 'if one gives effect to the concept of indifference in the dictionary definition of cruel, many events in the paths of [the defendants'] lives have been cruel,'93 he concluded that at least some of the damage done to the prisoners had been inflicted outside of the solitary-confinement experience and was to some extent of their own making. Mr. Justice Toy stated that there were many undesirable aspects of the SCU; in particular, the continued confinement of McCaulley in the unit and the lack of outside exercise. He remarked that 'if I were looking at the concept of administrative segregation in the light of the meaning of the word cruel alone, [these are] aspects of the programme that I would like to see legislatively changed.'94 Citing the dictionary definition of 'unusual' as 'not often occurring or observed, different from what is usual, out of the common, remarkable, exceptional,' the judge held that in light of the evidence (which was less complete on this issue than in the McCann case), he remained' unconvinced that the administrative segregation practised at the BC Penitentiary should, by itself,be considered unusual, even according to the common meaning of the word.'95

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