location: publications / books / Prisoners of Isolation: Solitary Confinement in Canada / Chapter 4 McCann v. The Queen: The Structure of the Legal Argument / The Role of the Courts in the Prison: The Rationale for Intervention


At common law, the person convicted of felony and sentenced to imprisonment was regarded as being devoid of rights. A Virginia court declared just over a century ago that a prisoner 'has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the State.'1 This view flowed historically from the old English practices of outlawry and attaint, the consequences of which were that the convicted felon lost all civil and proprietary rights and was regarded in law as dead. The warden of Kingston Penitentiary was properly reflecting the traditional status of the felon when in 1867 he wrote, 'so long as a convict is confined here I regard him as dead to all transactions of the outer world.'2

Although the concept of civil death was abolished in most common-law jurisdictions by the end of the nineteenth century, the prisoner continued to be viewed in law as a person without rights.3 It was this view that provided the original rationale for courts in Canada, the United States, and England to refuse to review the internal decision-making of prison officials. That rationale was later supplemented by the view that 'judicial review of such administrative decisions [would] subvert the authority of prison officials, the discipline of prisoners, and the efforts of prison administrators to accomplish the objectives of the system which is entrusted to their care and management.'4 The effect of this hands-off approach was to immunize the prison from public scrutiny through the judicial process and to place prison officials in a position of virtual invulnerability and absolute power over the persons committed to their institutions.5

Since the 1960s, Canadian courts, like their American and English counterparts, have begun to develop some understanding of the need for and the legitimacy of judicial intervention behind the prison walls. It has been increasingly recognized that a prisoner, far from being the slave of the state, should retain 'all the rights of an ordinary citizen, except those that are expressly taken away from him by statute or that he loses as a necessary consequence of incarceration.'6 In R. v. Miller and Cockriell,7 McIntyre J cited with approval the words of Brennan J in Furman v. Georgia,8 a decision of the Supreme Court of the United States:

An individual in prison does not lose 'the right to have rights.' The prisoner retains the constitutional rights ...to be free of cruel and unusual punishments and to treatment as a 'person' for purposes of due process of law... A prisoner remains a member of the human family... His punishment is not irrevocable.9

Page 1 of 2