Mr. Justice Toy then proceeded to apply to the overall conditions in SCU the formula for construing section 2(b) that was adopted by Chief Justice Laskin in Miller and Cockriell 'in the absence of any other guide from the majority judgment.'96 That formula he understood to be directed to a consideration of whether 'the punishment prescribed [is] so excessive as to outrage standards of decency.' Applying that formula, Mr. Justice Toy, after noting that 'Canadian society has not had to concern itself with what goes on behind the prison walls, and, unlike the subject of capital punishment, there have not been made apparent any discernible guidelines which would indicate to me what the current standard of public decency is,'97 concluded that the people who are admitted to the SCU under administrative segregation are not 'subjected to a harshness so severe that public decency dictates that the Court should decide that it be stopped.'98

Mr. Justice Toy referred to the evidence placed before him concerning the existence of alternative regimes but dismissed that evidence as irrelevant since in his view this test had not found favour in any of the Supreme Court judgments in Miller and Cockriell. This part of Mr. Justice Toy's judgment is perplexing. Chiding Mr. Justice Heald for adopting the broad disjunctive approach to 'cruel and unusual,' and citing that as a reason for not following the federal court judge, he then adopts Chief Justice Laskin's compendious approach to the term, which clearly favours a broad interpretation. Furthermore, in seeking to discern in the one passage cited a formula for the interpretation of section 2(b), Mr. Justice Toy, in applying the chief justice's statement of what in effect are the public-decency and excessive-punishment principles, failed to consider the rest of the chief justice's analysis. After the passage cited by Mr. Justice Toy, Chief Justice Laskin proceeded to review the arguments addressed to the court by those who challenged the death penalty. Those arguments embraced the four principles developed by Mr. Justice Brennan in Furman v. Georgia as reformulated by Mr. Justice McIntyre - the principles of degradation of human dignity, arbitrariness, unacceptability in terms of public decency, and excessiveness in light of the existence of less severe alternatives. The chief justice, far from suggesting that these tests were not appropriate criteria for the application of section 2(b), proceeded to deal with each in turn. Although he concluded that the death penalty did not conflict with any of them, it is inconceivable that the chief justice would have devoted over half of his judgment to detailing carefully why the death penalty as administered in Canada did not conflict with a set of principles if those principles were not relevant to the analysis in the first place. The chief justice gave particular attention to the principle of excessive punishment, which, as we have seen, was heavily relied upon by Mr. Justice Heald and so readily dismissed as irrelevant by Mr. Justice Toy.

In Miller and Cockriell, the appellants contended that the purposes of punishment in relation to the murder of policemen or prison guards could be equally well served by providing for a lesser punishment such as life imprisonment. They presented evidence to show that there was no convincing proof that the imposition of capital punishment had any deterrent effect as far as murder was concerned. The chief justice rejected their argument on two grounds. First, he was of the view that the burden of proof was not, as the appellants had argued, on Parliament to show that capital punishment was an effective deterrent. Second, in assessing the issue of the purposes of punishment, it was not proper to limit that inquiry to one of general deterrence. Parliament could legitimately have regard to retribution or to the social outrage that may reasonably find expression in a penal policy of a mandatory death penalty for what the community regards as the most outrageous types of murder. Furthermore, there was a legitimate social purpose in protecting police officers and prison guards in relation to prisoners already serving life sentences, for whom the death penalty would operate as a deterrent.99

As I have attempted to show, the plaintiffs in McCann clearly demonstrated both that the regime in SCU served no legitimate penal purpose and that the legitimate penal purpose of dissociation could be achieved by alternative means. The plaintiffs assumed the burden of proof and, in Mr. Justice Heald's view, met that burden. The defendants in Bruce, Lucas and Wilson presented the same evidence on the lack of penal purpose of the regime at SCU and the existence of adequate alternatives. A careful reading of the chief justice's judgment in Miller and Cockriell suggests that Mr. Justice Toy was in error in rejecting this evidence and in rejecting the relevance of the underlying test of excessiveness.

For quite different reasons, therefore, neither the McCann nor the Bruce, Lucas and Wilson judgment provides an adequate analytical framework for the proper interpretation of the right not to be subjected to cruel and unusual punishment or treatment, now entrenched in section 12 of the Canadian Charter of Rights and Freedoms. It is suggested that in any future prison litigation focusing upon this right the arguments presented by the McCann plaintiffs will provide a surer guide to a principled approach to the limits of carceral authority.100

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