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The first of the plaintiffs' two primary claims was that their confinement in SCU at the British Columbia Penitentiary amounted to the imposition of cruel and unusual punishment contrary to section 2(b) of the Canadian Bill of Rights, which reads:

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared. and in particular no law of Canada shall be construed or applied so as to ...(b) impose or authorize the imposition of cruel and unusual treatment or punishment.14

In their argument to the court the plaintiffs traced the historical origins of section 2(b) to the English Bill of Rights of 1689. They submitted that since the similar, albeit narrower, prohibition on cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution also has its historical roots in the same English source, American judicial decisions on the Eighth Amendment were particularly relevant in any enquiry into the proper meaning to be given section 2(b) of the Canadian Bill of Rights.

This was not the first time that this argument had been raised. In R. v. Miller and Cockriell, a case dealing with the relationship between the death penaIty and section 2(b), Mr. Justice Robertson, in a majority judg ment of the British Columbia Court of Appeal, suggested that the Canadian courts should not rely upon American decisions on the Eighth Amendment because of the differences between the u.s. Constitution and the Canadian Bill of Rights and the different approaches used by American and Canadian courts in statutory interpretation based on different conceptions of judicial review.15 The plaintiffs submitted that such a wholesale rejection of the relevance of U.S. decisions was far too sweeping. Mr. Justice McIntyre, in his dissent in Miller and Cockriell, dealt with the argument that the American cases on cruel and unusual punishment were not relevant to judicial determination of the meaning of section 2(b):

The differences between the American constitutional system and our own are many and obvious. They need no precise definition here. It does not follow, however, that all judicial attitudes and expressions emanating from the United States are inapplicable in Canada. Furthermore. it is not true, that in dealing with the concept of cruel and unusual punishment we are borrowing from the United States. The rejection of cruel and unusual punishment was declared in English law in the 17th century ...and is said to find its roots in Magna Carta. The English Bill of Rights of 1688 declared in s. 10: that excessive bail ought not to be required nor excessive fines imposed; nor cruel and unusual punishment inflicted.

In doing so the Bill recited that the Lords and Commons were making the declaration 'for the vindicating and asserting [of] their ancient rights and liberties.' This principle as part of the law of England became the law of what is now a part of Canada after the British conquest of the French colonies in North America and was thus known in Canadian jurisprudence even before the revolution which led to the creation of the United States of America. Framers of the United States Constitution in the Eighth Amendment provided 'excessive bail shall not be required nor excessive fines imposed nor cruel and unusual punishment inflicted ...' They were then adopting English law which had become or was to become Canadian law and consideration of this question and its mention in the, Canadian Bill of Rights involves the introduction of no foreign concept into our Canadian system.16

Mr. Justice McIntyre also doubted the continuing validity of the argument that American cases were irrelevant because of the differences in judicial review in the two countries. Reciting the majority decisions of Ritchie J in R. v. Drybones17 and Laskin J (as he then was) in Curr v. The Queen,18 which make it clear that the' Bill of Rights may have a sterilizing effect upon federal legislation if that legislation cannot be sensibly construed and applied so as not to abrogate one of the rights or freedoms recognized by the bill, he stated, 'This argument would have had compelling force prior to the passage of the Canadian Bill of Rights in 1960. That enactment, however, has changed the situation and some element of judicial review of legislation has been imported into our system'19 He concluded his review of the relevance of the U,S, decisions by saying, 'I am fully aware that American authority does not bind me ...but 1 have found it helpful in seeking principles upon which this matter should be considered in a civilized society.'20

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