At the time of the McCann trial only the decision of the Court of Appeal in Miller and Cockriell had been rendered, and the plaintiffs contended that the judgment of Mr. Justice McIntyre was a more principled guide to the tests to be applied in determining whether the conditions in SCU violated section 2(b) of the Bill of Rights. The plaintiffs sought to distinguish the majority decision in Miller and Cockriell on the basis that the court there had been heavily influenced by the fact that what had been challenged was an amendment to the Criminal Code passed by Parliament after the adoption of the Bill of Rights and after extensive public debate. In the McCann case, what was being challenged was not a legislative provision, but rather the application of a regulation. As a piece of delegated legislation on which no parliamentary scrutiny had been brought to bear it could not be said that there was any legislative intent that section 2(b) not apply.49

Courts in the United States have applied the 'cruel and unusual punishment' clause of the Eighth Amendment primarily in relation to the conditions of prison life. These cases, the McCann plaintiffs contended, were of particular interest in suggesting avenues of inquiry to be undertaken by the federal court. The plaintiffs, in citing the American cases, were not seeking mirror images of the conditions in SCU, but rather hoped to give substance to the nature of the prohibition contained both in the Eighth Amendment and in section 2(b) of the Bill of Rights.50

In Jordan v. Fitzharris51 prisoners challenged the conditions of solitary confinement in Soledad Prison in California. Chief Judge Harris of the United States Federal District Court identified three general approaches to the 'cruel and unusual punishment' clause.

The first approach is to ask whether, under all the circumstances, the punishment in question is of such character as to shock general conscience or to be intolerable to fundamental fairness ...Secondly. a punishment may be cruel and unusual if greatly disproportionate to the offence for which it is imposed ...FinaIly, a punishment may be cruel and unusual when, although applied in pursuit of a legitimate penal aim. it goes beyond what is necessary to achieve that aim.52

The conditions under review in that case - the use of a 'strip' cell in which prisoners were kept naked - were, in physical and sanitary terms, worse than those in SCU; but, to the extent that the period of time spent in the cell was only twelve days and the relevant regulations limited it to sixty consecutive days, they were less severe. In finding that the conditions violated the Eighth Amendment, Chief Judge Harris described the effects that this type of solitary confinement had on prisoners.

[It] results in a slow burning fire of resentment on the part of the inmates until it final1y explodes into open revolt, coupled with violent and bizarre conduct. Requiring man or beast to live, eat and sleep under the degrading conditions pointed out in the testimony creates a condition that inevitably does violence to elemental concepts of decency.53

Novak v. Veto54 challenged the conditions in a Texas prison which, like those in Soledad, were physically more debilitating than those in the British Columbia Penitentiary, although they were imposed for a much more limited time. Circuit Judge Tuttle, in applying the general tests indicated in Jordan v. Fitzharris, stated that implicit in the decisions of the Supreme Court on the Eighth Amendment is the notion that embedded in this society are certain standards of human decency:

[These standards] put a limit on the kind of punishment we will inflict on anyone regardless of his offence. Though we may be dealing here with some of the most incorrigible members of our society (although not solely), how we treat these individuals determines, to a large extent, the moral fibre of our society as a whole and if we trespass beyond the bounds of decency, such excesses become an affront to the sensibility of each of US.55

While many of the American cases have focused on the physical and sanitary conditions in solitary-confinement units, increasing attention has been paid to the psychological effects of the solitary regime. In Sostre v. McGuinnis,56 Judge Feinberg, addressing the issue of long-term solitary confinement, stated:

In this Orwellian age, punishment that endangers sanity, no less than physical injury by the strap, is prohibited by the Constitution. Indeed, we have learned to our sorrow in the last few decades that true inhumanity seeks to destroy the psyche rather than merely the body.57

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