THE WINDS OF CHANGE OR THE WINDOW OF CONTEMPT?

By the end of 1975, the Canadian Penitentiary Service found itself faced with a declaratory judgment of the Federal Court of Canada that the conditions of confinement in the special correctional unit at the British Columbia Penitentiary constituted cruel and unusual punishment or treatment in violation of the Canadian Bill of Rights. In granting this relief, Mr Justice Heald had specifically found that the declaratory judgment was appropriate even though the plaintiffs were no longer in SCU ‘because this is a case where the Court can and should give practical guidance to the authorities at the BC Penitentiary and the Canadian Penitentiary Service.’13 Furthermore, the service had received the report of its own study group condemning the existing practices of administrative segregation and recommending extensive changes. The McCann case had generated extensive public commentary in British Columbia and nationally, and, given the admissions of the director of the penitentiary himself that the regime in SCU could not be supported on any rational correctional basis, the time seemed propitious for change.

Within a week of Mr Justice Heald’s decision, prisoners being held in SCU under section 2.30(l)(a) were moved out and placed in a range of cells in the B- 7 block. These cells were the same as others in the cell block; they had open bars instead of the solid doors of the SCU cells, and they were equipped with standard beds and built-in desk-bookcases. Dragan Cernetic, director of the penitentiary, said that the change was made ‘to live up to the spirit of the judgment.’14 The press were invited in to see the new cells and to tour the special correctional unit. However, by April 1976, after a hostage-taking incident by prisoners in segregation and in the face of increasing hostility of the guards to the move (who demanded that the director resign), the prisoners were moved back to the special correctional unit, the name of which had now been changed to the super-maximum unit (SMU). 15 The only change that had been made to the unit was that the five-inch-square window in the steel doors had been enlarged to eighteen inches by thirty inches. Only two changes were made in the regime of the unit: the light in the cell was turned off from midnight until 6:00 A.M., and prisoners now exercised in the central control area instead of the corridor outside the cells. This move was viewed as constituting ‘fresh air’ exercise, since the roof of the central control area was, at its extreme ends, open to the outside. There were no other changes. 16 An editorial in The Vancouver Sun entitled ‘The Window of Contempt’ 17 reflected the views of prisoners on the extent to which the penitentiary had responded to the spirit of Mr Justice Heald’s decision.

The review process which Dragan Cemetic had introduced when he became director in 1974 continued to be the basis for review after the trial. Mr Justice Heald had held that the decision to segregate was purely administrative and was not subject to procedural safeguards enforceable or reviewable by the courts. The penitentiary authorities were therefore under no legal mandate to change that process. Although no Segregation Review Board was officially established at the British Columbia Penitentiary in 1976, the Classification Board did begin to review cases on the monthly basis set out in the regulations. Prisoners were not involved in any way in this review process. They were given written notification slips at the time of their first segregation and after their review. These notification slips were drafted in very general language, typically doing nothing more than repeating the general provision of section 2.30(l)(a) that a prisoner was being segregated for the good order and discipline of the institution. No evidence was made available to the prisoners that the recommendations of the Vantour Report were being implemented at the British Columbia Penitentiary.

By the end of 1976, other changes had been made to the cells: a metal table-and-stool combination was placed at the back of each cell, and a raised metal bed-frame was bolted to the wall to replace the concrete sleeping platform. However, the new enlarged opening in the door which in May had been obstructed by nothing other than three bars was now covered by a heavy steel-wire grill. Prisoners regarded this ‘improvement’ as worse than the original small five-by-five-inch opening. Now the little outside light that came in through the window on the other side of the catwalk was glimpsed not only through the wire mesh separating the corridor from the catwalk but also through the steel wire grill over the ‘window’ in the cell door. It was light as distorted as the existence to which the prisoners were condemned.18 Beneath the ‘window’ of the cell, there was a slot which could be closed from the outside and which was used to pass meals to the prisoners. The result of this change was that now even the brief respite from solitude formerly provided by coming out of their cells to pick up their meals at the end of the corridor was gone. Exercise periods were still no more generous; exercise was taken in the central control area, usually under the surveillance of at least three or four guards. In 1977, open -air exercise facilities were constructed at great expense on the roof of the ‘pent- house.’ These facilities consisted of elaborate cages, the sides of which were made of heavy metal, steel mesh, and wired glass. The combination of steel mesh and wired glass was a mirror image of the view the prisoners had from within their cells. Many prisoners refused to exercise in them rather than endure this distorted view of what the outside offered.

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