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4. McCann 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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