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The fourth principle was that the punishment or treatment must not be excessive. In Mr. Justice Brennan's formulation, solitary confinement would be excessive if it served no legitimate penal purpose or if it went beyond what was necessary to achieve a legitimate penal purpose. Mr. Justice McIntyre's restatement separated the discrete elements of Mr. Justice Brennan's principle: solitary confinement would violate section 2(b) of the Bill of Rights if it served no legitimate penal purpose, if it was unnecessary because of the existence of adequate alternatives, or if it was excessive and out of proportion to the evils it sought to restrain. Professor Berger has referred to these refinements of MrJustice Brennan's excessiveness test as the 'social purpose test,' the 'necessity test,' and the 'disproportionality test.'70

The evidence in the McCann case from both the plaintiffs' and the defendants' witnesses demonstrated that solitary confinement in the British Columbia Penitentiary under the conditions prevalent in the SCU served no legitimate penal purpose. Dr. Korn defined the regime as cruel: 'Cruelty is the infliction of pain either gratuitously or by intent without ...effective regard to the welfare of the person on whom it is being inflicted ...it is suffering to no useful end to either party.'71 When asked whether solitary confinement as practised at the British Columbia Penitentiary served a penal purpose, he replied that it served no reasonable or rational penal purpose in terms of deterrence, long-range control, treatment, or reformation 72

The director of the penitentiary, Mr. Cernetic, did not disagree with Dr. Korn's assessment. During the course of his cross-examination the following exchange took place:

Q And you agree with me, do you not, that solitary confinement as it has been practised under Section 2.30A at the BC Penitentiary does not serve any positive penal purpose?

A In view of the facilities we are utilizing.

Q And the program that you have to design because of those facilities.

A That's correct.73

Mr. Cernetic admitted that he had stated that he would like to see the solitary-confinement unit at the British Columbia Penitentiary closed.74

The plaintiffs, in the course of their argument, conceded that for the stated purpose of section 2.30(l)(a), the 'maintenance of good order and discipline in the institution,' it was legitimate in certain situations to dissociate prisoners from the general population. I will deal later with what those situations might be. However, the evidence in the McCann case showed clearly that the effects of solitary confinement in SCU engendered such feelings of hatred and rage in those subjected to it that it undermined and threatened the very objective it was supposed to further.75 The plaintiffs argued that the legitimate purpose of dissociating prisoners could be accomplished through an alternative regime that did not have the debilitating features of solitary confinement. The plaintiffs' experts were asked to inform the court of what the 'adequate alternatives' might be, specifically for the purpose of laying an evidentiary foundation for this part of the 'cruel and unusual' test. The regime put forward by Dr. Korn included several important components. Within a physically secure perimeter, prisoners would retain all their rights and privileges. Dissociated prisoners would be entitled to have visits from other prisoners within the secure perimeter, subject to the visitors being carefully frisked; they would also be allowed to receive visits from people in the 'free world.' They would have access to therapists of their choice in order to develop the trust that was totally lacking in their relationships with the prison psychiatrist in SCU. The cells would be larger. Prisoners would be permitted more personal effects, because prisoners subjected to this extreme form of confinement need more rather than less reinforcement of their sense of identity. There would be no constant illumination in the cells, and prisoners would not be required to arrange their bodies in any particular way during sleep.76

Dr. Korn commented on his proposed regime as compared to that of SCU: 'What I couldn't understand in the BC Penitentiary is the gratuitous cruelty, the unnecessary cruelty. I can understand rigour when it is necessary but what I can't put together is the unnecessary aspect of it ...the tininess of the cell, the threadbare character of the articles.'77

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