v. The Queen:
The Structure of the Legal Argument
In describing the process, the conditions, and the effect of solitary
confinement in SCU it has been necessary to elaborate considerably on
the statement of facts contained in the judgment of Mr. Justice Heald in
the McCann case. Mr. Justice Heald, displaying
the economy characteristic of the judiciary, reviewed the facts only in
so far as they were necessary to reach his conclusions in law. My purpose
in elaborating on the facts has been to locate them in their historical
and psychological contexts and to convey the nature of carceral power
as it has come to be exercised in our maximum-security penitentiaries.
In this chapter, in which I analyse the law pertaining to solitary confinement,
because the legal arguments presented to the court encompassed a theory
for judicial intervention in prison decision-making and an analytical
framework for bringing the rule of law to bear within the prison, I will
elaborate on the nature of those legal arguments well beyond the explication
found in the judgment of the court. Furthermore, because my analysis seeks
to inform future decision- making rather than simply review the historical
record, in setting out the arguments presented in McCann
I will consider not only how those arguments were received by the court
but also how they have flourished or foundered in the subsequent development
of the law, including the effect of the enactment of the Canadian
Charter of Rights and Freedoms.
In order to achieve this dual purpose of describing the legal arguments
presented in 1975 and tracing subsequent developments in the law without
interrupting the chronology of the McCann
case, I have adopted a specific method of organization in this chapter.
The main text contains the arguments presented to the court in McCann;
the notes form a subtext which traces subsequent developments. This subtext
will be of particular interest to lawyers.
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