For many prisoners this is a question that is hardly worth asking, because its answer is self-evident. To men who have been systematically dealt with by authority in arbitrary, dignity-depriving ways, asking the courts (who had consigned them to the penitentiary as punishment in the first place) to vindicate principles of fairness and dignity was seen to be as productive as spitting in the wind. The plaintiffs in McCann were committed to the court action as means of demonstrating to the public what was done under the guise of ‘correction’ within Canada’s penitentiaries as a way to ensure that no more McCaulleys would be driven mad in solitary, that no more Bellemaires would be driven to death, but deep down they had no illusions as to what would really change inside the walls when the lawyers, the judge, and the press went home.

The absence of change in the face of court intervention may in part be explained by the nature of the relationship between the keeper and the kept. Dr Korn, in his evidence in McCann, described that relationship as a guerrilla war. The keepers have a deep-seated need to retain their control, to demonstrate the legitimacy of their position, to justify doing to other men that which they know they could or should never do to members of their family or to people who have any meaning to them; the prisoners have a deep-seated need to hold on to that which is most precious to them, their sense of self, their sense of who they are, and to resist becoming the disembodied image of a penitentiary number. Solitary confinement is the ultimate battlefield of that conflict; neither side can afford to let go. This reality is so deep-seated that the declaratory judgment of the federal court is of little consequence. The courtroom simply becomes another battle- field. A judicial decision may be interpreted as a win or a loss by the keeper and by the kept, but not as an improvement in their ongoing relationship. The American experience is instructive in this regard. Judicial intervention in the prisons has proceeded much further in the United States than in Canada. The empirical studies of the effectiveness of this intervention, while in some cases affirming that there has been real improvement in prison conditions, have also described the recalcitrance of prison officials in implementing court decrees.22

James Jacobs, in his sociological analysis of Stateville, the maximum- security penitentiary in Illinois, considered the results of the intrusion of the legal system into the prison during the 1970s at the height of the Prisoners’ Rights Movement. His observations have a particular relevance to the situation at the British Columbia Penitentiary in the after- math of the McCann decision.

Where the Federal Courts have rebuked administrative practices and established new standards, there has sometimes been little change in the old ways. Court decisions do not enforce themselves ...There are limits to the capacity of the Courts to police decision-making inside the prison ...Where decisions have been implemented, the impact has often been blunted. For example, contrary to the opinion of prison administrators that the Courts have destroyed discipline, there is strong evidence at Stateville and elsewhere that the court decisions affecting prison discipline have had little effect on the number of inmates serving isolation and segregation time ...[At Stateville] a greater number and percentage of inmates are in special disciplinary confinement today than ever before. This can be explained by the fact that the same individuals continue to make the substan tive disciplinary decisions. That the guard who writes the ticket is now barred from the decision-making function is hardly a decisive turn of events when his superior is the decision-maker. The old disciplinary Captain at Stateville became chairman of the new disciplinary committee in 1970. One of his subordinates, a guard officer, was a second member of the committee ...The prison administrators found ways to ‘get around’ the clear meaning, if not the letter, of the court decisions. Instead of being brought to a hearing within 72 hours of the alleged , infraction, an inmate might be brought before the committee and ‘continued,’ or be placed in ‘investigation,’ or the ‘reclamation gallery’ or in some other form of sequestration, not ‘segregation’ but equivalent to it ...While the Courts might be able to impose a form of decision-making on the prison, they are not in a ;position to overturn substantive decisions. The Federal Courts are totally unable to sort out who was lying in an old factual dispute or to question whether the substantive judgment of the prison officials, in instituting a lock-up, was correct. By necessity the Courts must assume the good faith of the administration. There- fore, unless the administration itself acts in good faith and assumes a responsibility to supervise the fairness of the process, inmates are essentially little better off than before, without a remedy unless, of course, the administration completely fails to follow the required procedure.23

The indirect consequences of the intrusion of juridical norms into the prisons have been more significant than the few substantive holdings which have resulted from the many years of litigation. Seemingly unimportant Court decisions pertaining to Qurans [the holy book of the Black Muslims] and radical newspapers have given legitimacy to inmate protest against authoritarian rule. The ‘old’ system ultimately depended upon total suppression and total submission. The expression of inmate frustrations in terms of classic constitutional issues provided the ideological basis for a frontal attack upon the entire regime.

[Cases such as Miller v. Twomey and Wolff v. McDonell] struck at the very heart of the authoritarian system, not because it was impossible to go through the form of a hearing and then throw inmates into segregation, but because they called into question the basis of the authority itself.24

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