Contesting Expertise in Prison Law

McGill Law Journal Revue de droit de McGill

CONTESTING EXPERTISE IN PRISON LAW

Lisa Kerr*

Prisons present a special context for the inter-

pretation of constitutional rights, where prisoner com-
plaints are pitched against the justifications of prison
administrators. In the United States, the history of
prisoner rights can be told as a story of the ebb and
flow of judicial willingness to defer to the expertise-
infused claims of prison administrators. Deference is
ostensibly justified by a judicial worry that prison ad-
ministrators possess specialized knowledge and navi-
gate unique risks, beyond the purview of courts. In re-
cent years, expansive judicial deference in the face of
correctional expertise has eroded the scope and via-
bility of prisoners rights, serving to restore elements
of the historical category of civil death to the legal
conception of the American prisoner. In Canada too,
courts have often articulated standards of extreme
deference to prison administrators, both before and af-
ter the advent of the Charter of Rights and Freedoms,
and notwithstanding that the Charter places a burden
on government to justify any infringement of rights.
Recently, however, two cases from the Supreme Court
of British Columbia mark a break from excessive def-
erence and signify the (late) arrival of a Charter-based
prison jurisprudence. In each case, prisoner success
depended on expert evidence that challenged the as-
sertions and presumed expertise of institutional de-
fendants. In order to prove a rights infringement and
avoid justification under section 1, the evidence must
illuminate and specify the effects of penal techniques
and policies on both prisoners and third parties. The
litigation must interrogate the internal penal world,
including presumptions about the workings of prisoner
society and conceptions of risk management.

Les prisons, o saffrontent les plaintes des dte-
nus et les justifications des administrateurs du systme
correctionnel, prsentent un contexte particulier pour
linterprtation des droits constitutionnels. Aux tats-
Unis, le dveloppement des droits des dtenus peut tre
interprt comme la fluctuation de la dfrence aux al-
lgations des autorits du systme correctionnel par le
pouvoir judiciaire. Cette dfrence est soi-disant justi-
fie par le fait que ces administrateurs possdent une
expertise et une capacit grer des risques uniques
qui chappent aux tribunaux. Dans les dernires an-
nes, lampleur de la dfrence judiciaire face l ex-
pertise correctionnelle est venue roder ltendue et la
viabilit des droits des dtenus. Ce phnomne a con-
tribu faire resurgir certains lments de la notion
historique de mort civile dans la conception juridique
du prisonnier amricain. Au Canada aussi les tribu-
naux ont frquemment formul des normes de df-
rence trs importante aux administrateurs du systme
correctionnel, avant et aprs lentre en vigueur de la
Charte canadienne des droits et liberts, et ce, mme si
la Charte impose au gouvernement le fardeau de justi-
fier toute violation des droits quelle protge. Rcem-
ment, nanmoins, deux dcisions de la Cour suprme de
la Colombie-Britannique ont marqu une rupture avec
lattitude de dfrence excessive, signalant ainsi
larrive (plutt tardive) dune jurisprudence sur les
droits des dtenus qui sappuie sur la Charte. Dans cha-
cune de ces affaires, le succs du dtenu demandeur est
d des preuves dexperts qui sont venues dfier les af-
firmations et lexpertise prsume des dfendeurs insti-
tutionnels. Pour dmontrer une violation des droits ga-
rantis par la Charte et en viter la justification par
larticle premier, la preuve doit mettre en lumire les
techniques et politiques pnales lgard des dtenus et
en dcrire les effets sur les dtenus eux-mmes ainsi
que sur les tiers. Le litige doit sintresser la structure
interne du monde pnal, ce qui inclut les suppositions
quant au fonctionnement dune socit carcrale et cer-
taines conceptions de la gestion des risques.

* JSD Candidate and Trudeau Scholar at New York University, Faculty of Law. For the
central ideas explored here, thanks is due to generous teaching and mentoring from
Sharon Dolovich, particularly during her visit to New York University in 20122013.
Thanks also to Eric Adams, Efrat Arbel, Benjamin Berger, Emma Cunliffe, David Gar-
land, Anna Lund, Debra Parkes, Don Stuart and Jacob Weinrib for valuable comments
on drafts of this article. Thanks finally to an anonymous reviewer who made important
suggestions and to the excellent editors at the McGill Law Journal.

Citation: (2014) 60:1 McGill LJ 43 Rfrence : (2014) 60 : 1 RD McGill 43

Lisa Kerr 2014

44 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL

Introduction

II.

Early Signs of Prisoner Rights

Canadian Judicial Hands Off: Persistence into
the Charter Age

III.

American Judicial Review: Intervention and Retreat

IV.

Transitioning to a Rights-Based Paradigm
A. Solitary Confinement: Bacon v. Surrey Pretrial

Services Centre

B. Mother-Baby Programs: Inglis v. British Columbia

(Minister of Public Safety)

C. Harm Reduction

Conclusion

84
89
91

CONTESTING EXPERTISE IN PRISON LAW

And it is terror, of course, that traditionally drives
us into the arms of the experts.

Adam Phillips, Terrors and Experts1

Introduction

In adjudicating rights claims brought by prisoners, there are unique
pressures on courts to refrain from close scrutiny. The structure of a pris-
oner lawsuit is that an incarcerated person complains about the nature of
his treatment while held in state custody. The court is asked to review the
content of prison law or the conduct of prison administrators that led to
the treatment. From the outset and throughout the litigation, the defend-
ant wears a cloak of expertise, typically attempting to justify the im-
pugned law or conduct by pointing to the security concerns and limited
resources that constrain the prison context. Judges are at risk of yielding
uncritically in the face of their own corresponding lack of correctional ex-
pertise. The prospect of excessive judicial deference to the claims of pris-
on administrators poses a chronic threat to the scope and viability of pris-
oners rights.

The United States experience provides a valuable illustration of what
is at stake. In recent years, what appears to be judicial unwillingness to
scrutinize the claims of administrators in prisoner litigation has sharply
curtailed prisoners rights in that legal system. American plaintiffs have a
difficult time rebutting judicial deference to the claims of institutional de-
fendants, particularly at the level of the Unites States Supreme Court. As
Sharon Dolovich has shown, the imperative of restraintaka defer-
encehas emerged as the strongest theme of the Courts prisoners rights
jurisprudence.2 Deference is offered even when a defendants claims rest
on unproven assumptions as to what is required or effective in prison set-
tings. The good judgment of the putative expert is presumed but not test-
ed.

Such weak modes of constitutional review for prisoners may be under-
stood as part and parcel of the unique American penal state:3 marked by
features such as the persistence of the American death penalty4 and an
extraordinary range of collateral consequences that follow silently from

1 (Cambridge, Mass: Harvard University Press, 1996) at xii.
2 Sharon Dolovich, Forms of Deference in Prison Law (2012) 24:4 Fed Sentg Rep 245 at

245.

3 See generally David Garland, Penality and the Penal State (2013) 51:3 Criminology

475.

4 See generally David Garland, Peculiar Institution: Americas Death Penalty in an Age of

Abolition (Cambridge, Mass: Belknap, 2010).

46 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL

conviction.5 One historian suggests that these features are part of a long,
deep strain in American legal and moral culture that convicts are unfit
to share in the full fruits and protections of citizenship [and] that the con-
vict ought rightly to be fully or partially civilly dead.6 As this article de-
scribes, both American and Canadian law has been long marked by this
same historya notion of prisoners as lacking full or ordinary legal sta-
tus. The Charter of Rights and Freedoms7 prescribes a different route, but
post-Charter prisoner law has not consistently taken it.

Prisoner claims grounded in the Charter constitute a relatively young
jurisprudential field.8 In one of the few leading cases, the Supreme Court
of Canada makes clear that prisoners are not to be excluded from the or-
dinary constitutional analysis that applies to rights infringements by the
government. At the core of that holding was the question of the empirical
burden on government to justify a rights infringement. In Sauv v. Cana-
da (Chief Electoral Officer),9 a majority of the Court rejected an argument,
advanced by the government, that legislation directing prisoner disen-
franchisement should be upheld because it is connected to legitimate pe-
nological goals and is thus constitutionally permissible.10 Significantly,
the case turned on the character and quality of the evidence, where non-
state experts appeared on both sides of the case. The government relied
largely on evidence from political philosophers, who testified that the loss
of political rights for those convicted of federal offences accords with par-
ticular theories of democracy.11 The majority opinion found that evidence

5 See e.g. Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting
Issues of Race and Dignity (2010) 85 NYUL Rev 457; Jeremy Travis, Invisible Pun-
ishment: An Instrument of Social Exclusion in Marc Mauer & Meda Chesney-Lind,
eds, Invisible Punishment: The Collateral Consequences of Mass Imprisonment (New
York: New Press, 2002) 15; Nora V Demleitner, U.S. Felon Disenfranchisement: Part-
ing Ways with Western Europe in Alec Ewald and Brandon Rottinghaus, eds, Crimi-
nal Disenfranchisement in an International Perspective (New York: Cambridge Univer-
sity Press, 2009) 79.

6 Rebecca McLennan, The Convicts Two Lives: Civil and Natural Death in the Ameri-
can Prison in David Garland, Randall McGowen & Michael Meranze, eds, Americas
Death Penalty: Between Past and Present (New York: New York University Press, 2011)
191 at 21112.

7 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),

1982, c 11 [Charter].

8 Three Charter provisions are highly significant in the prison context: the protection of
residual liberty and security of the person (section 7), equality (section 15), and the pro-
hibition of cruel and unusual punishment (section 12).

9 2002 SCC 68, [2002] 3 SCR 519, revg [1996] 1 FC 857, 132 DLR (4th) 136 [Sauv].
10 Ibid at para 25.
11 The plaintiffs also relied on considerable academic and theoretical evidence, but the
trial judge found their evidence to be less lofty and more tangible, particularly in re-

CONTESTING EXPERTISE IN PRISON LAW

to be unpersuasive and also rejected the governments claim that denying
prisoners the vote sends an expressive message about the sacred charac-
ter of political participation.12 The majority held that a voting ban is
more likely to erode respect for the rule of law than to enhance it, and
more likely to undermine sentencing goals of deterrence and rehabilita-
tion than to further them.13 The majority concluded that the govern-
ments vague and symbolic objectives were insufficient to legitimize a
law that stripped prisoners of fundamental rights.14

The reasoning in Sauv seems to make clear that prisoner rights can-
not be infringed without a justification grounded in evidence. For this
reason, the Sauv holding is commonly upheld as a symbol of Canadas
commitment to prisoner rights, particularly as England and much of the
United States do not permit prisoner voting.15 There are, however, several
reasons why a victory in Sauv might be considered low-hanging fruit, ra-
ther than a symbol of a deep jurisprudential commitment to prisoners
rights. First, the right is occasional: the practical effect of the majority
opinion is only that prison administrators must allow infrequent access to
a polling station. Protection of the right entails minimal resources and re-
quires little administrative attention. Second, and most significantly for
this article, the case concerned legislation rather than a policy or decision
of a prison administrator, and that legislation covered a topic unrelated to
prison management. No prison administrator appeared to defend the vot-
ing ban on the basis of plausible assertions about security dynamics and

lation to Canadian penology, social justice, and prisons (Sauv v Canada (Chief Elec-
toral Officer), [1996] 1 FC 857 at 866, 132 DLR (4th) 136, revd 2002 SCC 68, [2002] 3
SCR 519).

12 This theory emerged from the evidence of American punishment philosopher Jean
Hampton, who testified that the loss of political rights for those convicted of federal of-
fences accords with an expressive theory of retribution. See Jean Hampton, The Moral
Education Theory of Punishment (1984) 13:3 Phil & Publ Aff 208. As the Hampton ex-
ample reveals, the Sauv case is a fascinating instance where philosophers appear on
both sides of a lawsuit, but where both the trial judge and the majority of the Supreme
Court of Canada express real doubt about the relevance of these fields to the empirical
questions at the heart of Charter analysis.

13 Sauv, supra note 9 at para 58.
14 Ibid at para 22.
15 Debra Parkes is more wary, pointing out that the Sauv decision represents a depar-
ture from the usual judicial approach to prisoners rights claims, an approach that gives
those rights little meaningful content (Prisoner Voting Rights in Canada: Rejecting
the Notion of Temporary Outcasts in Christopher Mele & Teresa A Miller, eds, Civil
Penalties, Social Consequences (New York: Routledge, 2005) 237 at 238). For another
hesitant account, Efrat Arbel stresses that the normative principles articulated in
Sauv are subordinated in the daily administration of corrections. See Efrat Arbel,
Contesting Unmodulated Deprivation: Sauv v Canada and the Normative Limits of
Punishment, 3:2 Can J Human Rights [forthcoming in 2014].

48 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL

the mechanics of sound penal administration. The expert evidence in
Sauv did not suggest that imprisonment is incompatible with the reten-
tion of the right to vote explicitly protected in section 3 of the Charter. Ra-
ther, much of the evidence was theoretical, controversial, and unrelated to
the daily demands of prison operations.16
Cases where prisoners seek to vindicate a right that potentially inter-
feres with the preferences of prison administrators in their daily opera-
tions will be more controversial than the Sauv context. In these cases,
the institutional defendant charged with operating the facility begins the
proceedings as de facto expert. These are also the cases where, unlike
matters of political philosophy, judges are less likely to have their own
expertise and intuitions to draw from. This article emphasizes the neces-
sity of expert evidence to contest the deference that will otherwise be of-
fered to prison administrators in cases where rights are adjacent to opera-
tional imperatives. Apart from that practical claim, the related normative
claim is, quite simply, that prisoners should receive the same level of con-
stitutional protection as other litigants. The state should be put to the
usual burdens of justifying an infringement, rather than benefiting from
undue deference to the unquestioned expertise of prison officials. This is
what is required so as to fully transition to a Charter-based penal law.
Completion of this transition is likely to hinge on particular litigation ap-
proaches. Two recent cases from the Supreme Court of British Columbia
serve as models, marking a new mode in the litigation of prisoner claims
under Canadian constitutional law and a new level of judicial scrutiny in
response.17

This article has two main aims. The first is theoretical and historical,
and aims to show something general about the structure of prisoner liti-
gation. Prisons have a stark advantage at the outset of a complaint, due to
an element of Foucauldian power/knowledge imbalance that is more ex-
treme than in other contexts of judicial review of government action. In-

16 As Justice Gonthier observed in dissent, there was copious expert testimony in the na-
ture of legal and political philosophy, but very limited social scientific evidence, e.g. in
the field of criminology, that seeks to establish the practical or empirical consequences
of maintaining or lifting the ban on prisoner voting (Sauv, supra note 9 at para 101).
While the majority thought this meant that the rights infringement was not adequately
justified, Justice Gonthier thought this meant that deference to Parliament was war-
ranted and that the legislation should be upheld. He noted that the issues in the case
rest on philosophical, political and social considerations which are not capable of scien-
tific proof (ibid at para 67). The difference between Justice Gonthier and the majori-
tyas to what is required to justify a rights infringementis a central issue for the
project of generating a Charter-based penal law.

17 See below (Part IV) Bacon v Surrey Pretrial Services Centre, 2010 BCSC 805, [2010]
BCWLD 8074 [Bacon]; Inglis v British Columbia (Minister of Public Safety), 2013 BCSC
2309, 237 ACWS (3d) 380 [Inglis].

CONTESTING EXPERTISE IN PRISON LAW

deed, for the bulk of prison history, courts refused entirely to adjudicate
internal prison conditions. A lineage of judicial reticence is still apparent
in both American and Canadian law; it forms part of the buried struc-
tures of legal thought that remain in this legal field.18 At times, this judi-
cial reticence can be traced to a frank prejudice against offenders. In mod-
ern times, however, courts take a more tactful approach by purporting to
defer to executive functions. Courts now use the language of limited judi-
cial capacity and lack of expertise in a way that covertly resurrects the
civilly dead prisoner. Rather than seeing the emergence of prisoner law as
an overthrow of a firm judicial principle19namely, the principle that
prisons are beyond the jurisdiction of courtswe might see that modern
penal law has instead altered judicial vocabulary and inspired new tech-
niques of deference. Under new language and governing concepts, courts
often still avoid close scrutiny of the task being performed by prison ad-
ministrators, preferring to tread lightly near the rough work of punish-
ment.20

Perhaps courts would rather not scrutinize the grim project of the
management and control of deprived bodies. Perhaps they are swayed by
the risks of interference alluded to by those charged with administering
state custody. As the psychoanalyst Adam Phillips puts it in the text cited
in the epigraph to this article: The expert constructs the terror, and then
the terror makes the expert.21 Whatever the cause, the powers exercised
by prison officers demand careful oversight. The prison is a punitive con-
text where key decisions are made not by elected public figures or legal
advisors but by low-level officials who are not well-positioned to interpret
and honour constitutional norms. These standard facts of imprisonment
should inform the task of judicial review.22 Review of prisoner claims must
be ratcheted up to ordinary constitutional standards.

18 McLennan, supra note 6 at 194.
19 Michael Mandel, The Legalization of Prison Discipline in Canada (1986) 26 Crim &

Soc Just 79 at 79.

20 For discussion of how this dynamic also appears in the private law of prisoner claims,
see Adelina Iftene, Lynne Hanson & Allan Manson, Tort Claims and Canadian Pris-
oners (2014) 39:2 Queens LJ 655.

21 Supra note 1 at 14.
22 See Richard H Fallon, Jr, Implementing the Constitution (Cambridge, Mass: Harvard
University Press, 2001) at 41 (pointing out that pragmatic considerations regularly af-
fect judicial interpretation of constitutional standards). In the context of prison cases,
courts might consider that while the decisions of prison officials are in principle subject
to democratic control and correction, that this is the type of setting where the actual
prospect of democratic intervention is often small (ibid at 9). Courts might consider
these institutional realities as they approach the task of adjudicating the rare prisoner
claims that arrive at trial.

50 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL

The second aim of this article is connected to the first but is more
practical, and it is to emphasize the necessity and particular function of
expert evidence for the prisoner plaintiff, so as to mediate instinctive judi-
cial deference. Specific strategies can assist plaintiffs counsel to reduce
the interpretive lenience and relaxed scrutiny that courts tend to offer
(whether properly or not) to the claims of prison administrators. The task
is important but not easy. In defending a claim, the institutional defend-
ant can rely on extensive evidence, often gathered over the course of many
years, from institutional psychologists and correctional staff, as to the ba-
sis and justification of its actions with respect to the plaintiff prisoner and
with respect to its policies more generally. Plaintiffs counsel, by contrast,
will rarely have the benefit of an independent, reliable evidentiary record
over the time period most relevant to the case, and the individual plaintiff
will not be able to speak personally to the legitimacy of penological tech-
niques as a general matter.23 At this relatively young moment in prison-
ers rights litigation under the Charter, it is a key moment to emphasize
how the issue of expertise affects judicial deference to the prison, and to
examine the range of sources of expert evidence on issues important to
the development of penal law.

The plan for the article is as follows. Part I sets out some background
on the emergence of rights-based prison law in the United States and
Canada, which helps to contextualize the current state of the jurispru-
dence. Part II describes patterns of judicial deference to prison adminis-
trators in Canada, both before and after the Charter, showing that penal
law, particularly as it is understood in lower courts, has been slow to
adapt to modes of legal analysis established under the Charter. Part III
turns to the trajectory of American prisoner litigation, and illustrates how
expertise and deference have been at the core of both the expansion and
contraction of prison jurisprudence. This is an important history for a Ca-
nadian audience, given how the politics and implications of that process
may be relevant to legal development in Canadawe can decide to either
copy or avoidand given structural similarities in rights litigation in each
country.24 In the final section, Part IV, this article considers the current

23 In addition, as Debra Parkes notes in her comprehensive study of prisoner claims
brought under the Charter, there are often barriers to retaining experts specializing in
the conditions or effects of imprisonment. As Parkes observes, psychologists and psy-
chiatrists regularly refuse to testify against the Correctional Service of Canada, for fear
that they will jeopardize service delivery contracts or research access to institutions.
See Debra Parkes, A Prisoners Charter? Reflections on Prisoner Litigation under the
Canadian Charter of Rights and Freedoms (2007) 40:2 UBC L Rev 629 at 668, n 161.

24 In terms of textual similarities, the Eighth Amendment of the Bill of Rights (US Const
amend VIII) ([e]xcessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted) bears a strong resemblance to section 12
of the Charter ([e]veryone has the right not to be subjected to any cruel and unusual

CONTESTING EXPERTISE IN PRISON LAW

prospects of prisoner litigation under the Charter. This part considers
three cases that serve as indicators of new paths in prisoner jurispru-
dence, marked by the penetration of social scientific and medical
knowledge into legal analysis and judicial approaches that treat the pris-
on as an ordinary domain of government action.

I. Early Signs of Prisoner Rights
Evidentiary issues were legally irrelevant for much of the history of
modern prison law, as courts simply excluded the internal conditions of
penal institutions from the scope of judicial review. A blanket judicial re-
fusal to intervene in matters of prison administration persisted into the
mid-twentieth century in both the United States and Canada. As a result
of the hands off doctrine, United States prisoners who complained about
the quality of prison conditions or administration, or who requested that
the constitutional rights of community members be granted to them as
well, were denied legal standing to pursue a claim.25 In Canada, courts
guided by British doctrine26 similarly reasoned that they had little author-
ity to intervene in matters of prison administration.27

treatment or punishment). The Charter has distinct equality protections under section
15, and distinct residual liberty and security of the person protections under section
7, each of which has some counterpart under the Fourteenth Amendment. While there
are many differences between the two systems, the structure of litigation is similar in
both countries in the contemporary period: prisoners are thought to possess ordinary
constitutional rights with which the government cannot interfere, but the prison con-
text bears on the question of finding an infringement and the question of whether the
infringement might be justified.

25 In the United States, this notion of civil death for prisoners was captured with the pecu-
liar language that prisoners were slaves of the statephrasing born of the Recon-
struction Period and the turn to criminal law for ongoing domination of former slaves.
See the 1871 Virginia case Ruffin v Commonwealth, 35 Va App 79 where a convicted
felon claimed a constitutional right with respect to a jury trial for a murder charge he
was facing. Given that the charge was for a murder committed while the accused was
already incarcerated, the case was summarily dismissed on the grounds that an incar-
cerated person could not request ordinary constitutional rights. This principle applied
all the way through to Atterbury v Ragen, 237 F (2d) 953 (7th Cir 1956), which held that
prisoners cannot bring a complaint to federal court even in a case alleging severe beat-
ings, starvation, and the abuse of solitary confinement by prison staff, and notwith-
standing the plain language of the Civil Rights Act of 1871, Pub L No 113-142, 17 Stat
13 (codified as amended at 18 USCA 241, 42 USCA 1983, 1985(3), and 1988) be-
stowing a federal cause of action in such circumstances.

26 For illustration of the original British reasoning, the Court of Kings Bench refused in
1822 to make an order with respect to matters of prison administration on the following
grounds: [W]e have no authority whatever to interfere with the regulations of the pris-
on, the legislature having provided for those regulations in another manner. I am not
aware of any instance in which this Court has granted an attachment under circum-
stances like the present (Bayard Marin, Inside Justice: A Comparative Analysis of

52 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL

The notion that prisoners retain some constitutional rights, and that
the judiciary should properly enforce those rights, emerged in both the
United States and Canada in the second half of the twentieth century. A
period of intense constitutional litigation, from approximately 1965 to
1975, served to dismantle some of the worst excesses and deficiencies in
American prisons. During this period, courts developed techniques to gain
information and assess the quality of prison conditions. Central to the
thesis of this article is the fact that the accrual of operational expertise
proved essential to reform, as American courts could not intervene until
they had expanded their institutional capacity. Judges acquired staffs and
appointed qualified special masters who could oversee the implementa-
tion of court orders and report back to the overseeing judge.28 Since the
1980s, however, the scope and impact of prisoner litigation has signifi-
cantly diminished in the United States, due partly to a legislative back-
lash and accompanied by the return of hands-off judicial deference to the
preferences of prison administrators.

In Canada, the landscape of prisoners rights was altered first by the
extension of administrative law concepts and then by the arrival of the
Charter. Relatively few prisoner Charter cases have been litigated, due to
the Charters young age, a relatively small prisoner population, and the
structural impediments that prevent individuals who live in inaccessible
facilities and who are largely poor from accessing the courts. The Charter
did, however, bring about a legal and culture shift that served to generate
the passage of the Corrections and Conditional Release Act.29 The CCRA is
Canadas first comprehensive penal code, designed to specify Charter

Practices and Procedures for the Determination of Offenses against Discipline in Prisons
of Britain and the United States (Cranbury, NJ: Associated University Presses, 1983) at
252, quoting R v Carlile (1822), 1 Dow & Ry KB at 53637). Another example, from
1843, is the Court of Queens Bench which, in rejecting a prisoner request to pursue his
literary interests in prison, said the court could not interfere with the regulations of
the prison (ibid at 25253, quoting R v Cooper (1843), 1 LTOS 143). But there was
some variation: in 1848, a court ordered that a remand prisoner ought to be allowed to
have books, at least while preparing for trial (see ibid at 253, citing R v Bryson (1848),
12 JP 585).

27 In Prisoners of Isolation: Solitary Confinement in Canada (Toronto: University of To-
ronto Press, 1983), quotes the writings of the warden of Kingston penitentiary in 1867
as follows: [S]o long as a convict is confined here I regard him as dead to all transac-
tions of the outer world (ibid at 82). A historical trajectory wherein Canadian prisoners
were considered civilly dead until the 1970s is confirmed in Mandel, supra note 19 at
79.

28 See Malcolm M Feeley & Van Swearingen, The Prison Conditions Cases and the Bu-
reaucratization of American Corrections: Influences, Impacts and Implications (2004)
24:2 Pace L Rev 433 at 440.

29 RSC 1992, c 20 [CCRA].

CONTESTING EXPERTISE IN PRISON LAW

equality and process rights in the penal context.30 The paucity of prison-
ers rights litigation under the Charter is partly due to the fact that the
CCRA has been considered largely Charter-compliant. By contrast, in
many American states, there is little formal legislation governing prisons,
as prison administrators are simply assigned a large swath of discretion-
ary power to operate their institutions. In Canada, under the CCRA, ad-
vocacy for prisoners has tended to mean insisting on adherence to the ex-
isting legal regime, rather than pushing for the articulation of new rights.
For this reason, much prisoner litigation has been highly individualized
and limited in scope.

The key Charter issues have been about what the CCRA failed to in-
clude, such as the voting rights case.31 While the adequacy of the CCRA
itself is less often challenged, notable exceptions arise; for example, the
prisoner grievance system.32 Litigation that challenges CCRA-compliant
practices, like administrative segregation and lack of access to safe injec-
tion equipment, discussed in Part IV of this article, are thus novel, emerg-
ing sites of contestation to the CCRA itself. There are also important
Charter-based challenges emanating from the provincial jails, no doubt
due to the fact that provincial penal codes have never been properly up-
dated in the Charter age, and due to poor conditions in provincial facili-
ties. Like the American litigation that began to demand constitutional re-
form in the 1970s, provincial claims, along with challenges to the CCRA
itself, seek a novel remedial scope, and promise to rely on a wide range of
expert material in order to make out both the constitutional violation and
the basis for expansive relief.
Building on these stages in the development of prison law, this article
argues that constitutional analysis of prisoner claims must be brought in-
to more consistent alignment with ordinary Charter standards. There are
no automatic rules of deference in a Charter-based review of government

30 The pre-Charter history is set out in Jackson, Prisoners of Isolation, supra note 27.
Jackson has noted that the Charters principal benefit for prisoners is not necessarily
to be found in the litigation it spawns, but rather in the climate and culture of respect
it creates amongst both governments and citizens for fundamental human rights and
freedoms (Justice Behind the Walls: Human Rights in Canadian Prisons (Vancouver:
Douglas & McIntrye, 2002) at 62).

31 See Sauv, supra note 9.
32 In May v Ferndale, 2005 SCC 82, [2005] 3 SCR 809 [May] the court unanimously held
that the prisoner grievance system is marked by inadequacies, and that prisoners must
retain the right to file habeas corpus in provincial superior courts in order to challenge
correctional decisions that impair residual liberty interests. The court in May rejected
the argument from the federal government that prisoners must first exhaust the pris-
oner grievance process and then seek judicial review in Federal Court, with its slower
timelines and hurdles.

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law or conduct, and the United States jurisprudential tendency in that re-
gard, explored further below, should be rejected. Under Charter analysis,
the right is presumed to prevail, unless infringement is justified under
section 1.33 Jacob Weinrib argues that the section 1 framework is norma-
tive, in that it represents a doctrinal solution to a moral problem that
arises in modern constitutional states.34 The idea is that once constitu-
tional rights are conceived of and interpreted as incidents of the over-
arching duty of government to respect, protect, and fulfill human dignity,
then a doctrinal test is required so as to resolve moments when incidents
of this duty might come into conflict.35 Prisoners must have access to this
same moral mechanism of modern constitutionalism, rather than being
subject to judicial deference that preempts or negates the standard. The
questions that animate section 1 point to the salience of certain empirical
factors. Canadian courts now regularly require robust evidencetypically
expert evidenceto assess whether the infringement is demonstrably
justified in a free and democratic society.36 To fully deploy this reality in
the field of prisoner rights would entail a full break from a notion of civil
death for prisoners, and a rejection of United States-style reticence to sus-
tain access to constitutional review for prisoners.
As just one introductory example of how prevailing forms of Canadian
constitutional review have not always been applied in the context of pris-
oner claims, Debra Parkes has observed a judicial tendency to consider
issues of government justification for limiting rights at the stage of decid-
ing whether there has been an infringement of the right itself, rather
than at the subsequent section 1 stage.37 Parkes cites Fieldhouse v. Can-
ada,38 where the British Columbia Court of Appeal held that a random
urinalysis policy did not breach sections 7 or 8 of the Charter. Both the
trial and appellate courts considered the governments justifications and

33 Section 1 of the Charter contemplates that the government may justify a law that in-
fringes a right, but the law must survive the rigorous test established in R v Oakes,
[1986] 1 SCR 103, 26 DLR (4th) 200 [Oakes]. The government must demonstrate that
the impugned law pursues a purpose that is pressing and substantial in a free and
democratic society, and that it satisfies the proportionality analysis set out in Oakes.

34 Proportionality in its Strict Sense (2014) at 2 [unpublished].
35 Ibid.
36 As the Ontario Court of Appeal first put it in 1983, section 1 requires evidence as to the
economic, social and political background of a rights-limiting law, with the analysis
assisted by references to comparable legislation of other acknowledged free and demo-
cratic societies (R v Southam Inc (1983), 146 DLR (3d) 408 at para 30, 41 OR (2d) 113
(ONCA)). This empirical approach was affirmed and deepened under the test set out in
Oakes, supra note 33, and in subsequent cases, discussed below in Part II.

37 Parkes, A Prisoners Charter?, supra note 23 at 670.
38 (1995), 40 CR (4th) 263, 98 CCC (3d) 207 (BCCA).

CONTESTING EXPERTISE IN PRISON LAW

objectives at the front end of deciding whether a right had been infringed.
With this approach, the courts avoid the section 1 analysis, which, as
Parkes points out, requires more than a good objective; it requires,
among other things, that the measure chosen to achieve the objective only
minimally impair Charter rights.39 This article explores additional exam-
ples and considers possibilities for ensuring ordinary levels of Charter
scrutiny for prisoners.

The question of whether rights are Dworkins trumps40 or whether
they are subject to judicial balancing and contextual interpretation is of-
ten considered to be the main difference between United States and Ca-
nadian constitutional law. The conventional story is that the United
States is marked by a stronger conception of individual rights.41 In the
Canadian context, so the story goes, rights are not trumps. The structure
of Charter adjudication means that rights are significant protections to be
interpreted in context, a context that includes the text of the Charter and
the separation of powers central to Canadian political design. These de-
bates are newly relevant for prisonersa right has been the furthest
thing from a trump in the traditional forms of law accessible to prisoners.
For much of the history of the modern prison, nuanced questions about
the priority and interpretation of rights were not pursued, as courts simp-
ly refused judicial review on matters related to the internal conditions of
penal institutions. It is critical to observe that we still find traces of the
old ways, from a time when prisoners rights was a strange and unen-
forceable legal category. That traces remain is not surprising: there is a
deep structure to judicial deference to penal institutions. A shift to a
Charter-based penal law is not yet complete, but the mechanisms by
which it could happen are becoming increasingly clear.

39 Parkes, A Prisoners Charter?, supra note 23 at 671.
40 Ronald Dworkin, Laws Empire (Cambridge, MA: Belknap, 1986) at 223.
41 This conventional account has been questioned by Richard H Pildes, Why Rights Are
Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism (1998) 27:2 J
Legal Stud 725 (1998). Pildes argues that, with respect to the United States, rights
function not as atomistic individual entitlements or trumps, but rather work to police
the kinds of justifications that government can offer when acting in various spheres.
Indeed, while there is no explicit limitation clause for constitutional rights in the Unit-
ed States constitution, the United States Supreme Court often allows for restriction of
individual rights, and utilizes various levels of judicial scrutiny of legislative ends in
ways that resemble section 1 analysis under the Charter. See also Stephen Gardbaum,
The Myth and the Reality of American Constitutional Exceptionalism (2008) 107:3
Michigan L Rev 391. Gardbaum points out that while the United States Constitution
suggests a textual basis for categorical rights, this is not the case in practice. The Unit-
ed States Supreme Court has long implied limits on most textually unlimited rights, so
that only a small subset of constitutional rights has been held to be absolute (ibid at
417).

56 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL

II. Canadian Judicial Hands Off: Persistence into the Charter Age
In prison law, as in any other area of law, the question of reviewability

precedes the question of evidentiary standards. The notion that the pow-
ers of prison administrators should be subject to judicial scrutiny arrived
in advance of the Charter, in a 1980 administrative law decision where
Justice Dickson held that the rule of law must run within penitentiary
walls and that prison disciplinary boards must abide by a common law
duty to act fairly.42 Four years later, the Federal Court of Appeal in How-
ard v. Stony Mountain Institution43 interpreted section 7 of the Charter,
which protects a right not to be deprived of the right to liberty except in
accordance with the principles of fundamental justice,44 to hold that
where prison disciplinary proceedings could result in loss of earned remis-
sion days, prisoners are, in most cases, entitled to access to legal coun-
sel.45

The facts in Howard reveal the tensions in the air as the Canadian le-
gal system shifted to the Charter age. The case arose after an officer pre-
siding over a prison disciplinary court denied a request for legal counsel,
retained by the prisoner, to be present at a hearing. The officer remarked
that section 7 does not create a new wave of rights and that the officer
was entitled to exercise his discretion and conclude that a fair hearing
was possible without counsel.46 The prisoner was found guilty of various
disciplinary offences and sanctioned with a loss of seventy days of earned
remission. The three-judge panel in Howard did not find that section 7
protects an absolute right to counsel in all prison disciplinary proceedings,
but did decide that the loss of remission days triggered section 7 rights in
this case. Most significantly, all three judges affirmed that the presiding
officer did not have final authority to adjudicate the right. In separate
concurring reasons, Justice MacGuigan observed:

What s. 7 requires is that an inmate be allowed counsel when to de-
ny his request would infringe his right to fundamental justice. The
existence of the right admittedly depends on the facts. But the right,
when it exists, is not discretionary, in the sense that the presiding
officer has a discretion to disallow it. The presiding officers authori-

42 Martineau v Matsqui Institution Disciplinary Board (1979), [1980] 1 SCR 602 at 622,

106 DLR (3d) 385 [Martineau].

43 [1984] 2 FC 642, 19 DLR (4th) 502, appeal quashed as moot [1987] 2 SCR 687, 41 CCC

(3d) 287 [Howard].

44 The full text of section 7 is as follows: Everyone has the right to life, liberty and securi-
ty of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justice.

45 See Howard, supra note 43 at para 25.
46 Ibid at para 4.

CONTESTING EXPERTISE IN PRISON LAW

ty cannot, in my view, prevent a reviewing court from looking at the
facts and substituting its own view.47

This passage from Justice MacGuigan affirms that discretionary penal
decisions are subject to Charter review, along with the principles of ad-
ministrative fairness articulated in the 1980 Martineau decision. By ar-
ticulating these legal concepts, the courts affirmed the notion of access to
judicial review and Charter rights in Canadian prison law.
Notably for the thesis of this article, the Howard courts treatment of
penal expertise was central to its decision, but here the fact of inherent
state expertise did not end the analysis. Justice MacGuigan admitted that
it would be an ill-informed court that was not aware of the necessity for
immediate response by prison authorities to breaches of prison order, but
he continued the analysis, reasoning that not every feature of present
disciplinary practice is objectively necessary for immediate disciplinary
purposes.48 While on-the-spot segregation might be justified in an emer-
gency situation, disciplinary court and revocation of earned remission
lacks such a temporal imperative. In sum, a promise to hold prison offi-
cials to legal standards requires testing their assertions as to what is nec-
essary and thus legitimate in the prison context. Justice MacGuigan
found that the refusal to allow counsel at disciplinary court was a matter
of mere convenience rather than necessity.49

The introduction of legality and judicial review into penal decisions
provoked more resistance in other cases. There are several instances of
under-reasoned judicial deference to prison administrators in the case
lawparticularly at the trial court leveleven after the advent of the
Charter. Such cases reveal a historic and lingering habit of offering sub-
stantial deference to the taken-for-granted expertise of prison administra-
tors. In the 1982 case of Maltby v. Saskatchewan (AG),50 a trial judge
struggled to articulate the standards that would apply to a claim of cruel
and unusual punishment under section 12 of the Charter. The court ad-
mitted, at the outset, that [t]he duty to confront and resolve constitution-
al questions regardless of their complexity and magnitude is the very es-
sence of judicial responsibility.51 The judge noted that courts cannot
simply abdicate their function out of misplaced deference to some sort of
hands off doctrine.52 However, unaided by higher court interpretations of

47 Ibid at para 93.
48 Ibid at paras 8182.
49 Ibid at para 82.
50 (1982), 143 DLR (3d) 649, 2 CCC (3d) 153 (Sask QB) [Maltby].
51 Ibid at para 4.
52 Ibid.

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the Charters section 1 at this time, the court suggested that the purpose
of section 1 is to justify all rights infringements in the detention context.
The claim was that incarceration entails reasonable limitations on
rights previously enjoyed, and thus any infringement of the rights of pris-
oners would be justified under section 1.53 As discussed below, later cases
make clear that section 1 contains a much more rigorous standard, for
both prisoners and other categories of claimants.

The court in Maltby also took the peculiar step of looking to American
doctrine to buttress a deferential approach to prison administrators de-
fending against prisoner claims. The judge cited a leading 1974 California
case that set out the following propositions:

Prison officials and administrators should be accorded wide ranging
deference in the adoption and execution of policies and practices that
in their judgments are needed to preserve internal order and disci-
pline and to maintain institutional security. Such considerations are
peculiarly within the province and professional expertise of correc-
tions officials, and, in the absence of substantial evidence in the rec-
ord to indicate that the officials have exaggerated their response to
these considerations, courts should ordinarily defer to their expert
judgment in such matters. … The unguided substitution of judicial
judgment for that of the expert prison administrators … would to my
mind be inappropriate.54

There are several strange features to this formula of deference to pro-
fessional expertise. First, this Saskatchewan trial judge cites, with little
explanation or justification, American cases for propositions of Canadian
law. The unexplained extra-jurisdictional citation suggests a struggle to
thoughtfully interrogate what Canadian legal orderparticularly the new
Charter order, distinct in many ways from the United States Bill of
Rightsrequires for judicial review of Canadian prison conditions. In ad-
dition, the review formula that is transported from American law implies

53 The Court wrote:

The lawful incarceration of the applicants as remand inmates bears with it
necessarily reasonable limitations on their rights previously enjoyed in a free
and democratic society. These restrictions are no doubt the sort of reasonable
restrictions that the framers of the Canadian Charter of Rights and Free-
doms envisioned when they included in section 1 the words … guarantees
the rights and freedoms set out in it subject only to such reasonable limits
prescribed by law … … The institution may and certainly must place re-
strictions and limitations on the rights of the applicants so that sufficient se-
curity will ensure that they will remain in custody and will not pose a danger
to themselves or to other inmates or staff (ibid at para 5 [emphasis in origi-
nal]).

54 Ibid at para 20, citing Pell v Procunier, 417 US 817, 94 S Ct 2800 at 2806 (1974) [Pell

cited to S Ct].

CONTESTING EXPERTISE IN PRISON LAW

that judges cannot analyze the facts of prison cases while keeping in mind
the challenges of prison administration. Yet judges are constantly asked
to review the conduct and policies of government actors with appropriate
attention to operational context. Moreover, the judge does not have to im-
pose unguided substitution but could, rather, form a view based on evi-
dence. The doctrine articulated in Maltby reveals both a classic judicial
instinct to avoid adjudicating prisoner claims, and shows the correspond-
ing presumption that the decisions of prison officials are invariably driven
by legitimate professional judgments, rather than, say, indifference or
stereotypes. The approach also confirms the necessity of introducing ex-
ternal sources of knowledge that could enable the court to be properly
guided in its assessment.

This standard from Maltby continues to be cited and utilized in order
to justify extreme standards of judicial deference, notwithstanding its du-
bious status as a Charter authority. In the 2011 Ontario case of R. v. Far-
rell,55 a pretrial detainee brought a broad complaint about conditions of
confinement, founded on section 12 of the Charter, as a habeas corpus ap-
plication. In its opinion, the court cited the above paragraph from Maltby,
adding the general notion that [a] person in custody simply does not pos-
sess the full range of freedoms of an un-incarcerated individual and that
the problems that arise in the day-to-day operation of a corrections facili-
ty are not susceptible of easy solutions.56 There is little reference in Far-
rell to the evidence or authorities behind these assertions. One of the
complaints at the heart of the application in Farrell was the lack of winter
clothing provided to prisoners for outdoor exercise in Ottawa. On this is-
sue, the court simply concludes:

In connection with having to exercise in a yard without warm cloth-
ing in the winter, I agree that it is not feasible for hygiene and logis-
tics to equip inmates with hats, mitts and boots to meet winters
harshest conditions.57

Yet there is no evidence cited in the decision, nor additional reasoning, to
explain how hygiene and logistics serve, exactly, to make the provision
of winter clothing not feasible.

In its startling conclusion, the Farrell court asserts that habeas corpus
and the standards for punishment under section 12 of the Charter are not
available for complaints relating to fresh air, medical treatment, meals,
the right to call and receive calls from a lawyer, and available counsel-

55 2011 ONSC 2160, 85 CR (6th) 247 [Farrell].
56 Ibid at para 47.
57 Ibid at para 61.

60 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL

ing.58 The court refers to these items as trivial issues that should in-
stead be addressed through grievance procedures in the institution.59 The
court also seems to think that these matters could never violate the sec-
tion 12 protection against cruel and unusual punishment.60 While there
is little doubt that the logic behind this judgment would not be sustained
if competently appealed, it serves as an illustration of a judicial attitude
that continues to pervade at least some contemporary prisoner cases, and
how that attitude can presume that prisoner deprivations are generally
justified. Moreover, given the barriers of both bringing prisoner com-
plaints and pursuing appeals, this lower court denial of the constitutional
relevance of prison conditions merits attention and critique.
Another peculiar conception of rights in the prison context appeared in
a recent Ontario decision concerning a prisoner complaint about harsh
conditions in long-term segregation. The reviewing court in R. v. Aziga61
made several general statements that are unsupported by the text and
structure of the Charter. The trial judge noted that the application lacked
a sufficient evidentiary basis for adjudication of a Charter claim62which
was fair enoughbut the court went on to make exaggerated assertions
about the standards of review to be applied to the decisions and practices
of prison administrators. The judge stated that courts must be extremely
careful not to unnecessarily interfere with the administration of detention
facilities.63 He asserted further that prisoners must show a manifest vio-
lation of a constitutionally guaranteed right, or else it is not generally

58 Ibid at para 55.
59 Ibid. The courts suggestion that the prisoner grievance system is an adequate replace-
ment for access to judicial review is strikingly underinformed. Since 1987, the Office of
the Correctional Investigator has raised in its annual reports significant concerns with
the effectiveness of the CSCs internal grievance process. See Ivan Zinger, Human
Rights Compliance and the Role of External Prison Oversight (2006) 48:2 Can J Crim-
inology & Criminal Justice 127. In addition, the Supreme Court of Canada has found
the prisoner grievance system to be characterized by delay, lack of independence, and
lack of remedial power (see May, supra note 32).

60 The court cites three other trial level decisions for the proposition that lighting, yard
access, telephone access, programs and education, clothing and blankets, meals, library,
toiletries, air quality, exercise facilities, bedding and medical treatment are all un-
founded or too trivial to amount to cruel and unusual treatment in violation of the
Charter (Farrell, supra note 55 at para 68, citing Trang v Alberta (Edmonton Remand
Centre), 2010 ABQB 6205, CRR (2d) 91 (Alta QB); R v CAV-F, 2005 NSSC 71, 233 NSR
(2d) 69).

61 (2008), 78 WCB (2d) 410, 2008 CanLII 39222 (ONSC) [Aziga].
62 Ibid at para 36, citing MacKay v Manitoba, [1989] 2 SCR 357 at 361, 61 DLR (4th) 385,
(holding that Charter decisions should not be made in a factual vacuum, to avoid the
risk of ill-considered opinions).

63 Ibid at para 34.

CONTESTING EXPERTISE IN PRISON LAW

open to the courts to question or second guess the judgment of institu-
tional officials.64 The court suggested that judges have been very reluc-
tant to intervene when conditions of detention are challenged under the
Charter.65

The complaint in Aziga may have been properly dismissed on the basis
of the minimal evidence filed in that particular case. However, the doctri-
nal assertions in the opinion are not a principled or accurate reading of
Charter requirements. The idea that courts cannot question the judg-
ment of institutional officials does not accord with Charter-era ideals of
government constrained by entrenched rights. Further, there is no good
authority for a unique standard of manifest violation required to vindi-
cate prisoner claims. The notion that the Charter only protects prisoners
from a manifest violation of guaranteed rights is unsupported by the
plain language of the Charter and the principles articulated by the Su-
preme Court in Sauv. If the conditions of long-term segregation violate,
for example, sections 7 and 12 of the Charter, the only remaining question
is whether the violation can be saved under section 1. Finally, to ques-
tion prison administrators does not mean that their difficult working
context will not be properly weighed and considered, as section 1 doctrine
invariably entails.
Where prisoners can show that rights have been infringed, Canadian
courts must simply proceed to analysis of whether the government can
justify the infringement under section 1. The Oakes test affirms the pre-
sumptive importance of rights, and makes clear that limitations are ac-
ceptable only where government meets a demanding test of justification.
Sujit Choudhry explains that the proportionality principle at the heart of
section 1 has come to entail careful evidentiary assessment.66 As
Choudhry argues, the Oakes doctrine made empirics central to every
stage of the analysis, with the result that the central debate in many
section 1 cases is the quality of the evidentiary record.67 Courts regularly
require social science evidence to assess whether the infringement is de-
monstrably justified in a free and democratic society.68 There is no prin-

64 Ibid [emphasis added].
65 Ibid at para 35.
66 See So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis

under the Canadian Charters Section 1 (2006) 34 Sup Ct L Rev (2d) 501.

67 Ibid at 522, 504 [emphasis in original].
68 A recent example is Chaoulli v Quebec (AG), 2005 SCC 35, [2005] 1 SCR 791 [Chaoulli]
where the court struck down a prohibition on private health insurance aimed at pro-
tecting the quality of the public system. The majority in Chaoulli cited evidence from
other OECD countries indicating that a private option could coexist with a viable public
system, given certain protective legislative measures (see ibid at paras 7784).

62 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL

cipled reason why prisoner claims should not be similarly treated, with
the burden on the state to justify any infringement.
Moving up to the Supreme Court of Canada level, a different judicial
move appeared in a 1990 opinion where serious aspects of prison admin-
istration were excluded from Charter coverage. In R. v. Shubley,69 a ma-
jority of the Court held that penalties such as solitary confinement, with a
restricted diet and loss of earned remission days, are not a true penal
consequence so as to attract Charter criminal procedure protections.70
The effect of the holding was that a prisoner could be punished twice for
the same conduct: once by prison administrators, and again by an ordi-
nary criminal court. The premise of the majority holding is that internal
prison discipline is not a system designed to punish, but to maintain or-
der in the prison.71 In the following passage, Justice McLachlin (as she
then was) seems to think that because the prison treats these events in-
formally, this determines the question of impact on the prisoner:
The internal disciplinary proceedings to which the appellant was
subject lack the essential characteristics of a proceeding on a public,
criminal offence. Their purpose is not to mete out criminal punish-
ment, but to maintain order in the prison. In keeping with that pur-
pose, the proceedings are conducted informally, swiftly and in pri-
vate. No courts are involved.72

The deference in Shubley serves to exempt punitive aspects of prison ad-
ministration from Charter protection, by characterizing such punitive
techniques as simply part and parcel of benign administrative processes.
According to this peculiar logic, the more casual the treatment of the right
by the prison regime, the less duty there will be on courts to intervene.
Justice McLachlin approached the issue not as a matter of a right held by
a prisoner, but by acceding to the framing of the case advanced by the
prison administrator. The prison argued that the formal purpose of inter-
nal discipline is simply administrative. Justice McLachlin accepted that
the consequences imposed on the prisoner are confined to the manner
in which the inmate serves his time, rather than redressing wrongs
done to society at large.73 Justice McLachlin even suggests that the pro-

69 [1990] 1 SCR 3, 74 CR (3d) 1 [Shubley].
70 Ibid at 21. Section 11(h) of the Charter provides that a person found guilty and pun-
ished for an offence cannot be punished for it again. In R v Wigglesworth, [1987] 2 SCR
541, 45 DLR (4th) 235, the Court held that a proceeding is only barred by section 11(h)
if they are either criminal proceedings or result in punishment which involves the im-
position of true penal consequences (see ibid at para 21).

71 Shubley, supra note 69 at 20.
72 Ibid.
73 Ibid at 23.

CONTESTING EXPERTISE IN PRISON LAW

ceedings occur in privatea strange and telling way of describing deci-
sions made inside coercive public institutions. Justice Cory, in dissent
with Justice Wilson, warns that the holding ultimately means that once
convicted an inmate has forfeited all rights and can no longer question
the validity of any supplementary form of punishment.74 The dissenting
opinion emphasizes that time in solitary confinement has substantial ef-
fects, and is not simply an alternative mode in which a prisoner may serve
his sentence. The reasoning of the majority restores a dimension of civil
death following incarceration. The majority judgment seems to reveal a
wish for the prison to be akin to a private place, beyond the reach of law,
where the interests of prisoners can be easily subordinated to managerial
preferences.
Debra Parkes has criticized the court in Shubley for failing to under-
stand how additional prison time and the deprivations of solitary con-
finement raise serious prisoner interests. Parkes explains the outcome by
noting that [t]he Shubley majority shows a substantial degree of defer-
ence to the Ontario governments characterization of the internal disci-
pline process as informal, summary, and therefore, non-criminal.75 Along
similar lines, Allan Manson notes that the majoritys decision not to in-
quire more carefully into the factors of imprisonment does not do justice
to the expanded function of the judiciary in the post-Charter era.76 Shub-
ley is a rare instance of reluctance at the level of the Supreme Court of
Canada to apply the Charter to the penal context.77

The cases briefly canvassed in this section reveal that, in some re-
spects, the Charters arrival did not create a sharp moment of rupture in
the development of penal law. First, enhancements to prison law arrived
before the Charter, in the Martineau administrative law decision and
through various Parliamentary endeavours.78 Second, post-Charter cases,
typically in lower-level courts, have articulated standards of deference to
prison administrators that do not accord with Charter principles and
which are rarely offered to other government actors. This is a peculiar

74 Ibid at 9.
75 Parkes, A Prisoners Charter?, supra note 23 at 658.
76 Solitary Confinement, Remission and Prison Discipline, Case Comment on R v Shub-

ley, (1990) 75 CR (3d) 356 at 357.

77 More recent cases than Shubley have sent very different signals. See May, supra note
32; Sauv, supra note 9; Mission Institution v Khela, 2014 SCC 24, [2014] 1 SCR 502
[Khela].

78 See House of Commons, Sub-Committee on the Penitentiary System in Canada, Report
to Parliament (1977) (Chair: Mark MacGuigan), which sparked a major re-examination
of prison law and resulted in the implementation of legally-trained independent chair-
persons to preside over disciplinary proceedings.

64 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL

impulse, given that the prison context may be the least likely place for
constitutional compliance to occur, since it is an isolated and difficult en-
vironment where authority is exercised on a politically powerless popula-
tion, amid limited resources and government actors who receive less
training than police officers. Part III traces the treatment of these issues
in American law, which provides further support for a claim that prisoner
rights have not simply expanded in the modern age of human rights and
constitutionalism. In the United States, deference to the presumed exper-
tise of prison administrators has been at the heart of recent decades
marked by judicial withdrawal from prison oversight.

III. American Judicial Review: Intervention and Retreat

In the middle of the twentieth century, United States federal courts
began to articulate and apply constitutional standards to both federal and
state prison systems. Particularly in the 1960s, American courts began to
disavow a historical hands off doctrine, which held that matters of pris-
on conditions and administration were exempt from judicial review and
constitutional law. Over the subsequent twenty years, the federal judici-
ary decided many cases that recognized individual prisoner rights, and, at
times, granted extraordinary remedies that subjected entire state prison
systems to oversight and intervention on matters of infrastructure, condi-
tions, and basic policies.79
While there was no official constitutional change to explain these de-
velopments, the emergence of prisoner law in the United States was con-
nected to the Civil Rights Movement and the reforms initiated by the
Warren Court. Prisoners were able to latch on to the radical extensions of
citizenship rights and democratization that characterized legal change in
that period.80 The prisoners rights movement had roots in a long history
of efforts to reform the prison, but, as James Jacobs points out, after the

79 See generally Malcolm M Feeley & Edward L Rubin, Judicial Policy Making and the
Modern State: How the Courts Reformed Americas Prisons (New York: Cambridge Uni-
versity Press, 1998). This important book contains case studies of the Arkansas, Texas,
and Colorado prison reform litigation. See also Margo Schlanger, Civil Rights Injunc-
tions Over Time: A Case Study of Jail and Prison Court Orders (2006) 81:2 NYUL Rev
550.

80 See generally James B Jacobs, Stateville: The Penitentiary in Mass Society (Chicago:
University of Chicago Press, 1977). Jacobs explains that the prisoner rights movement
was part of the new dynamics of mass society: where it was fundamental that rights of
citizenship be extended to heretofore marginal groups like racial minorities, the poor,
and the incarcerated (ibid at 6). See also See James B Jacobs, The Prisoners Rights
Movement and Its Impacts, 196080 in Norval Morris & Michael Tonry, eds, Crime
and Justice: A Review of Research, vol 2 (Chicago: University of Chicago Press, 1991)
429 at 432.

CONTESTING EXPERTISE IN PRISON LAW

1960s the arguments for reform began to be sourced in the Constitution,
rather than in the language of religious or utilitarian values.81 Once the
reform period arrived, it operated intensely. In their detailed study of this
period, Malcolm Feeley and Edward Rubin remark that the entire condi-
tions-of-confinement doctrine was articulated in little more than a decade,
after 175 years of judicial silence on its subject matter.82

The accrual of judicial expertise regarding prison conditions proved
essential to the reform process, so as to mediate the structural imbalance
in both knowledge and authority between the prisoner plaintiff and the
institutional defendant. The early cases gave rise to evidence about the
qualitative features and actual effects of imprisonment, heard in United
States federal courts for the first time. Neutral experts emerged in the
form of court-appointed receivers and special masters, who would collect
data, oversee the implementation of court orders, and report back to fed-
eral judges as to progress made and the need for specific further re-
forms.83 These mechanisms for providing expert advice to courts about the
adequacy of particular prison systems are still in use in the United States
today, and affirm the deep connection this article points to between judi-
cial enforcement of rights and mechanisms for judicial education regard-
ing penal institutions.84

The first intensive wave of reform did not last long. There was soon a
sense that the courts had gone far enough. In 1980, James Jacobs ob-

81 See ibid.
82 Feeley & Rubin, supra note 79 at 14.
83 Court-appointed experts have been particularly crucial so as to avoid the war of ex-
perts that traditional adversarial suits entail. For discussion of one such federal rule of
procedure, see Herbert A Eastman, Rule 706 Experts: A Greater Engine for Discover-
ing the Truth in Prison Reform Cases (1994) 14:1 Saint Louis U Pub L Rev 51. See also
Feeley & Swearingen, supra note 28.

84 A notable recent example is the prisoner class actions in California, where court-
appointed Receivers and Special Masters monitored the implementation of multiple
court orders aimed at improving health care services and other Eighth Amendment
matters in the state prison system over the course of many years. These court-
appointed agents, along with additional experts, advised the California court of ongoing
constitutional breaches, and eventually advised that it would be impossible to render
California prisons constitutionally compliant absent a significant reduction in the pris-
oner population. This expert-driven process eventually resulted in the granting of a
mandatory prisoner release order, which the United States Supreme Court upheld in
Brown v Plata, 131 S Ct 1910, 179 L Ed 2d 969 (2011). As Jonathan Simon observes:
[T]he Brown majority broke with the posture of extreme deference toward imprison-
ment choices and unleashed a potential sea change in penal policy (Mass Incarceration
on Trial: A Remarkable Court Decision and the Future of Prisons in America (New
York: New Press, 2014) at 152). Notably, Simon cites an insistence on empirical evi-
dence and expert assessment as central to the reasoning of the majority decision at the
Supreme Court (see ibid at 153).

66 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL

served that the luster of the prisoners right movement seems to be fad-
ing.85 The larger society had shifted to the culture of control caused by
high levels of crime, and had experienced the social and political trans-
formations associated with the policies of mass incarceration.86 Whatever
the causes, a shift in judicial attitude and political atmosphere began to
constrain prisoner litigation in the United States. Feeley and Rubin point
to cases decided between 1979 and 1991 as the key indicators of change.87
At the legislative level, the 1996 Prison Litigation Reform Act, aimed at
curtailing prisoner litigation and limiting the scope of judicial interven-
tion in prison administration even for constitutional claims, was the cul-
mination of the new atmosphere.88 Prisoner litigation remains a useful
tool for knowledge production, negotiation, and, at times, judicial reme-
dies.89 But the benefits and drawbacks of litigation must be unpacked one

85 Jacobs, The Prisoners Rights Movement, supra note 80 at 439.
86 See David Garland, The Culture of Control: Crime and Social Order in Contemporary
Society (Chicago: University of Chicago Press, 2001); David Garland, Mass Imprison-
ment: Social Causes and Consequences (London: Sage, 2001) at 13.

87 See Feeley & Rubin, supra note 79 at 5657: Since the late 1980s, the decline of mo-
mentum in prison conditions litigation has been abundantly evident. Feeley and Rubin
consider an early indicator to be the decision in Bell v Wolfish, 441 US 520, 99 S Ct
1861 (1979) [Bell cited to S Ct], where the Supreme Court reversed a lower-court deci-
sion holding the federal jail in New York City unconstitutional on a wide variety of
grounds. By 1991, the case of Wilson v Seiter, 501 US 294, 111 S Ct 2321 (1991) [Wil-
son] is, to Feeley & Rubin, the signal of a true retrenchment. Wilson holds that condi-
tions must be specifically imposed as punishment in order to be covered by the Eighth
Amendment, or must be the result of wanton behavior by correctional officials. As Fee-
ley and Rubin conclude, the Wilson reasoning could preclude conditions of confinement
suits on the ground that the conditions are the result of an insufficiently trained staff,
an insufficiently funded operational budget, an insufficiently large physical plant, or
any of the other insufficiencies that genuinely bedevil state prison systems (Feeley &
Rubin, supra note 79 at 49).

88 Pub L No 104-134, 110 Stat 1321-66 (1996) (codified as amended at 42 USCA 1997e)
[PLRA]. The PLRA contains extraordinary limits on prisoner litigation in federal
courts, which is the only viable constitutional venue for prison law. The PLRA requires
administrative exhaustion, limits actions to those with showings of physical injury, caps
attorneys fees, and discourages repeat filings by jailhouse lawyers. The PLRA has been
very effective in vastly reducing the number of prisoner claims. For discussion of the
legislative history and impact of the law, see Margo Schlanger & Giovanni Shay, Pre-
serving the Rule of Law in Americas Jails and Prisons: The Case for Amending the
Prison Litigation Reform Act (2008) 11:1 U Pa J Const L 139.

89 For more detailed treatment on whether the litigation and mobilization around prison-
ers rights and other penal issues in the 1960s and 1970s actually resulted in more hu-
mane, liveable prisons, see Marie Gottschalk, The Prison and the Gallows: The Politics
of Mass Incarceration in America (New York: Cambridge University Press, 2006) at
16769.

CONTESTING EXPERTISE IN PRISON LAW

case study at a time, with attention to the entire litigation context and ac-
tual effects within penal institutions.90
At the doctrinal level, the cases reveal how the notion of rights articu-
lated by the United States Supreme Court in the 1970s is different in tone
and substance from that applied today. One example is the line of deci-
sions concerning the First Amendment right to free expression, which
shows how patterns of judicial deference and notions of correctional ex-
pertise shaped the progression from Procunier v. Martinez,91 decided in
1974, to Beard v. Banks,92 decided in 2006.

In Martinez, the United States Supreme Court invalidated California
Department of Corrections regulations that permitted extensive censor-
ship of prisoner mail. The impugned regulations included a ban on any
prisoner letters that unduly complain[ed], magnify[ied] grievances, or
express[ed] inflammatory political, racial, religious or other views or be-
liefs.93 While United States courts had previously deferred entirely to the
decisions and rules of prison officials, in this case the court affirmed that
when a prison regulation or practice offends a fundamental constitutional
guarantee, federal courts will discharge their duty to protect constitu-
tional rights.94 Along with articulating this fundamental principle of con-
stitutional jurisdiction over prisons, the Martinez Court found that the
California regulations on prisoner correspondence impaired expression
rights protected under the First Amendment. The Court reasoned that
corrections officials had to show a substantial governmental interest in
order to validate the regulation.95 The specific regulation then had to be
shown to be necessary or essential to the protection of the government

90 Margo Schlanger calls for scholarship that attends to the multi-player politics of insti-
tutional reform litigation, rather than a focus on the doctrine-creating activity of judges
alone: see Beyond the Hero Judge: Institutional Reform Litigation as Litigation, Book
Review of Judicial Policy Making and the Modern State: How the Courts Reformed
Americas Prisons by Malcolm M Feeley & Edward L Rubin, (1999) 97:6 Mich L Rev
1994 at 200936. As an example of this approach, Schlanger gives a complex account of
how California litigation has delivered substantial civil rights achievements while also
generating new risks of unconstitutional conditions of jail confinement. See Margo
Schlanger, Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics
(2013) 48:1 Harv CR-CLL Rev 165 at 17778.

91 416 US 396, 94 S Ct 1800 (1974) [Martinez cited to S Ct].
92 548 US 521, 126 S Ct 2572 (2006) [Beard cited to S Ct].
93 Martinez, supra note 91 at 1803 [internal quotations omitted].
94 Ibid at 180708.
95 Ibid at 1811.

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interest.96 The California regulations, with their broad and ambiguous
constraints on prisoner speech, failed the test.
Within a few years, however, doctrinal ambiguity about the standard
of review was seized upon by the 1987 decision in Turner v. Safley,97
which indicated that prisoners are to receive a very low level of judicial
scrutiny for a constitutional claim, even one implicating a fundamental
right. To survive review, the regulation needed only to satisfy four factors,
the main one of which is whether the regulation is reasonably related to
legitimate penological objectives.98 Sharon Dolovich has a sharp critique
of the Turner test, arguing that it allows prison officials to violate consti-
tutional rights if they can show that doing so facilitates the running of
the prison.99 Part of the problem is that the penological objectivea
purpose that can justify infringement of a rightis often simply asserted
by the prison authority, and accepted on little evidentiary proof. Conse-
quently, ensuring the security of the institution has been regularly as-
serted, to great success and with little empirical testing, by institutional
defendants in the years following Turner.100

The 2003 case of Overton v. Bazetta101 exemplifies how application of
the Turner standard fosters heightened judicial deference in a later gen-
eration of cases, where deference is deployed so as to defeat prisoner
claims regardless of whether evidentiary standards are satisfied by the
state. In Overton, a majority of the United States Supreme Court upheld
extensive limits on the ability of prisoners to receive visits from outside
the prison. The regulations included a ban on parents receiving visits
from natural-born children where parental rights had been terminated for
any reason, and a complete ban on visits for prisoners with a substance
abuse violation in the previous two years. Given the importance of visiting
to prisoners, and the fact that the parental rights of prisoners can be
comparatively easily terminated under American law, these were severe

96 Ibid.
97 482 US 78, 107 S Ct 2254 (1987) [Turner cited to S Ct].
98 The court in Turner struck down a prohibition on prisoner marriages, because the pro-
hibition was stunningly broad and not connected to any legitimate objective. The other
factors under the Turner test are: whether an alternative means is open to exercise the
right, what impact an accommodation of the right would have on guards, other inmates
and prison resources, and whether there are ready alternatives to the regulations (see
ibid at 2262). Each of these factors have tended to provide prison officials with opportu-
nities to avoid protection of the right.

99 Dolovich, supra note 2 at 246.
100 See generally Cheryl Dunn Giles, Turner v. Safley and Its Progeny: A Gradual Retreat

to the Hands-Off Doctrine? (1993) 35:1 Ariz L Rev 219.
101 539 US 126, 123 S Ct 2162 (2003) [Overton cited to S Ct].

CONTESTING EXPERTISE IN PRISON LAW

limits. In upholding the restrictions, the majority simply asserted that the
regulations promote internal security, perhaps the most legitimate peno-
logical goal.102 The majority also found that the regulations protect chil-
dren, by reducing the number of children at visits and allowing guards to
better supervise them. With respect to the withdrawal of visitation from
inmates with two substance abuse violations, the majority concluded:
Withdrawing visitation privileges is a proper and even necessary man-
agement technique to induce compliance with the rules of inmate behav-
ior, especially for high-security prisoners who have few other privileges to
lose.103
Despite the empirical issues at the heart of this holding, such as
whether it was too difficult for guards to safely supervise a larger number
of visiting children, the majority in Overton did not cite or elaborate on
any evidentiary sources for its claims, and did not cite the findings of the
courts below, each of which found the regulations to be invalid. The ma-
jority justified its approach in the name of granting due deference to pris-
on administrators.104 Overton suggests that prison administrators are to
receive deference regardless of the content or the quality of their profes-
sional judgment, which echoes the doctrine asserted by some Canadian
judges discussed above. This standard of adjudication has led many Unit-
ed States commentators to cite the return of the slaves of the state ap-
proach or of keeping judicial hands off the field of prison administra-
tion.105

Judicial deference to the unquestioned expertise of administrators
reached new rhetorical heights in the 2006 plurality opinion of Justice
Breyer in Beard. This case involved prisoners housed in highly restrictive
conditions at Pennsylvanias Long Term Segregation Unit (LTSU). At the
LTSU, all prisoners were confined to cells for twenty-three hours a day,
with no access to commissary goods or phone calls, and a single immedi-
ate family visitor once per month. Confined almost constantly to cells,
they nevertheless had no access to television or radio. The basis of the le-

102 Ibid at 2165.
103 Ibid at 216869.
104 We must accord substantial deference to the professional judgment of prison adminis-
trators, who bear a significant responsibility for defining the legitimate goals of a cor-
rections system and for determining the most appropriate means to accomplish them
(ibid at 2167, citing Pell, supra note 54 at 82627).

105 See e.g. Susan N Herman, Slashing and Burning Prisoners Rights: Congress and the
Supreme Court in Dialogue (1998) 77:4 Or L Rev 1229. For further commentary as to
judicial hands being on or off, see Owen J Rarric, Kirsch v. Wisconsin Department of
Corrections: Will the Supreme Court Say Hands Off Again? (2002) 35:2 Akron L Rev
305; Patricia Yak, Hudson v. Palmer: Return to the Hands-Off Approach to Prisoners
Rights? (1985) 5:4 Pace L Rev 781.

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gal complaint was quite restrained given the circumstances. Prisoners as-
signed to Level 2 (the most restrictive level of LTSU) had no access to
newspapers, magazines, or personal photographs. The Level 2 prisoners
were held in total isolation, often for months at a time, and were denied
access to the most basic forms of human communication. The constitu-
tional claim was that the restriction violated the First Amendments pro-
tection of free expression, and that it was not justified because the re-
striction bore no relation to a legitimate penological objective.
At issue before the Supreme Court was whether the complaint could
be dismissed by way of summary judgment; that is, whether the case
raised a triable issue. At such an early stage of litigation, the record con-
sisted only of the deposition of a deputy superintendent at the prison, and
various prison policy manuals and related documents. Despite the early
stage of the case and the very low threshold required to show a triable is-
sue, Justice Breyer, in a 6-2 plurality opinion, directed the summary dis-
missal of the complaint on the basis that the prison officials have set
forth adequate legal support for the policy.106 While the court noted that
it must draw all inferences in favour of the claimant at the pretrial stage,
it held (citing Overton and Turner) that it must distinguish between evi-
dence of disputed facts and disputed matters of professional judgment.107
In the latter circumstance, Justice Breyer reasoned, courts are to accord
deference to the views of prison authorities.

The deference Justice Breyer offered did not turn on any evidentiary
support for the claims of the prison authorities. In the pretrial proceed-
ings in Beard, the prison authority asserted in its materials that it was
depriving LTSU Level 2 inmates of newspapers, magazines, and personal
photographs mainly in order to motivate better behaviour, and also to
minimize property in cells and ensure prison safety. The prison stated
that deprivation, especially for those who have already been deprived of
almost all privileges, was a legitimate technique as an [incentive] for in-
mate growth.108 The only evidence adduced to justify these techniques
consisted of the statements of the prison administrator. The Third Circuit
Court of Appeals (the court below) noted that there was no other evidence
to suggest the necessity of the measures, nor was there any evidence to
confirm the states theory of behavioural incentives. The Third Circuit
found that the Department of Corrections deprivation theory of behaviour
modification had no basis in real human psychology, and that it had not
been shown that the restrictions were implemented in a way that could ef-

106 Beard, supra note 92 at 2576.
107 Ibid at 2578.
108 Ibid at 2579.

CONTESTING EXPERTISE IN PRISON LAW

fectively modify behaviour, given the deleterious effects on prisoners liv-
ing with such deprivations.

as follows:

Justice Breyer rejected the evidentiary concerns of the Third Circuit

The courts statements and conclusions … offer too little deference to
the judgment of prison officials about such matters. The court [be-
low] offered no apparent deference to the deputy prison superinten-
dents professional judgment that the Policy deprived particularly
difficult inmates of a last remaining privilege and that doing so cre-
ated a significant behavioral incentive.109

Justice Breyers opinion in Beard is remarkable for its articulation of a
legal rule: So long as the subject matter of a case concerns the judgment
of prison administrators, then in almost no circumstance will the prisoner
succeed. The case indicates that, so long as the factual dispute in a case
concerns how the prison should operate, dismissal even in advance of trial
is justified. It follows that the case substantially effaces the notions that,
first, constitutional rights survive imprisonment, and second, that courts
must interpret and balance rights infringements in the prison context,
such as by analyzing whether a rights infringement is necessary or es-
sential (from Martinez) or proportionate (from Oakes) to a governmen-
tal interest. Justice Breyer purports to use a standard of reasonable rela-
tion to a legitimate penological objective, but his application of that
standard suggests the barest minimum of judicial review.110

Like the Third Circuit below, the dissenting justices in Beard pointed
to the lack of evidentiary support to justify the prisons policy. Justice
Stevens, in dissent, chronicled the lack of evidence to suggest that the
states theory of behaviour modification had any basis in human psychol-
ogy, or the notion that the rule had a rehabilitative effect specifically in
the LTSU. Justice Stevens noted further that this concept of rehabilita-
tion has no limiting principle:

[I]f sufficient, it would provide a rational basis for any regulation
that deprives a prisoner of a constitutional right so long as there is
at least a theoretical possibility that the prisoner can regain the
right at some future time by modifying his behavior.111

In addition, Justice Stevens found that there were multiple other rea-
sons why an inmate would be motivated to rehabilitate out of LTSU, and
that the lack of access to a single newspaper was an invasion of the

109 Ibid at 2581.
110 Ibid at 2577.
111 Ibid at 2588, Stevens J, dissenting.

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sphere of intellect and spirit which the First Amendment protects.112
Justice Stevens concluded that a full trial was necessary in order to form
a definitive judgment as to whether the challenged regulation was rea-
sonably related to the prisons valid interest in security and rehabilita-
tion, in accordance with the Turner standard.
Justice Ginsburg echoed these concerns in a separate dissent, noting

that the defendant relied entirely on the deposition of the prisons own
deputy superintendent, whose evidence was simply:

[O]bviously we are attempting to do the best we can to modify the
inmates behavior so that eventually he can become a more produc-
tive citizen. … [Newspapers and photographs] are some of the items
that we feel are legitimate as incentives for inmate growth.113

Justice Ginsburg concluded that these statements are not sufficient to
show that the challenged regulation is reasonably related to inmate reha-
bilitation.114 Justice Ginsburg concluded that the pluralitys reasoning
means that it is sufficient for a prison defendant to say in our profession-
al judgment the restriction is warranted in order to avoid even the bur-
den of a trial.115 Justice Ginsburgs analysis reveals the structural similar-
ity between the pluralitys approach and the era of civil death for prison-
ers, the only difference being that prisoners can now access the courts
and, at least briefly, assert a right in a language cognizable to the courts.
But so long as the prison points to its own professional judgment, then the
scope of the right is diminished so significantly that it does little good to
bear it.
Cases like Overton and Beard have led Sharon Dolovich to argue that
United States prison law wholly lacks principled and consistent doctrines
of judicial deference.116 Dolovich has mapped three particular forms of
deference that have been deployed in recent years at the Supreme Court

112 Ibid at 2591, Stevens J, dissenting.
113 Ibid at 2592, Ginsburg J, dissenting [internal quotation omitted].
114 Ibid, citing Shimer v Washington, 100 F (3d) 506 at 510 (7th Cir 1996), holding that
prison officials cannot avoid court scrutiny by reflexive, rote assertions [internal quo-
tations omitted].

115 Ibid at 2593, Ginsburg J, dissenting. That Justice Ginsburgs fears are well-founded is
illustrated in the 7th Circuit decision in Singer v Raemisch, 593 F (3d) 529 (7th Cir
2010) at 534, which upheld summary judgment dismissing a First Amendment chal-
lenge to a prison ban on a role-playing game known as Dungeons and Dragons. The
prison asserted that the game was somehow connected to gang activity. The court held
that substantial deference must be offered to the professional judgment of prison ad-
ministrators. In the result, the claim of the prisoner plaintiff who cherished the game
could not survive even a summary application to dismiss, even after filing evidence that
suggested the benefits of the game and its lack of connection to gang activity.

116 See generally Dolovich, supra note 2.

CONTESTING EXPERTISE IN PRISON LAW

level, each of which works in important ways to deny prisoner claims, all
while maintaining a narrative of judicial oversight. The first form is doc-
trine-constructing, where deference is written right in to constitutional
standards, such as standards that require high levels of proof in order to
make out a violation.117 The second predominant form of deference is pro-
cedural rule-revising, where decisions are made in ways that transform
ordinary matters of legal process into rules that are more defendant-
friendly, such as by adjusting evidentiary burdens in favour of the state.118
The third form of deference is situation-reframing, where the court recasts
a procedural or factual history in a way that enhances the states position
and disregards the lived experiences of prisoners.119 Dolovich admits that,
in the cases she considers, difficult practical consequences would have fol-
lowed the granting of relief to prisoners. But the point is that the Court
does not acknowledge that side of things. Rather, the reasoning simply
pretends that the stipulated outcome is required, reasoning in ways that
not only favor defendants but also seem willfully to deny the lived experi-

117 See ibid at 246. The first example of doctrine-constructing deference is Turner, supra
note 97, where the court held that prison regulations that infringe rights may be upheld
if they are reasonably related to legitimate penological interests (ibid at 2261). Anoth-
er case where Dolovich says deference is written into the standards is Whitley v Albers,
475 US 312, 106 S Ct 1079 (1986) [cited to S Ct], where the court held that use of force
violates the Eighth Amendment only where prison officials exhibit deliberate indiffer-
ence or where force is applied maliciously and sadistically for the purpose of causing
harm (ibid at 1084, 1081 [internal quotations omitted]). Finally, deference is written
into the standard articulated in Farmer v Brennan, 511 US 825, 114 S Ct 1970 (1994)
[Farmer cited to S Ct], which held that deliberate indifference is the equivalent of crim-
inal recklessness, protecting prison officials from liability for even egregious conditions
(see ibid at 1980).

118 See Dolovich, supra note 2 at 24647. One example of procedural rule-revising is Jones
v North Carolina Prisoners Labor Union, Inc, 433 US 119, 97 S Ct 2532 (1977) [cited to
S Ct] where the lower court had found no evidence to support security concerns regard-
ing the activities of a prisoner labour union. On review, the Supreme Court overturned
on the basis that in the absence of substantial evidence in the record to indicate that
the officials have exaggerated their response, courts should not intervene (ibid at
2539). This was an example of revising familiar aspects of the legal process into defend-
ant-friendly procedures: defendants receive substantial deference, even where extensive
expert evidence is adduced on the side of the plaintiff.

119 See Dolovich, supra note 2 at 24648. One example of situation-reframing, or recasting
history in ways that assist the state and disregard prisoner experiences, is Rhodes v
Chapman, 452 US 337, 101 S Ct 2392 (1981) [cited to S Ct]. In this case, the court re-
jects a challenge to double-celling, on the basis that it does not violate the Eighth
Amendment since double-celling did not create other conditions intolerable for prison
confinement (ibid at 2400). This was despite the weight of evidence at trial indicating
that the space was fell far short of that required to prevent serious mental, emotional,
and physical deterioration.

74 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL

ence of prisonerseven when the nature of that experience is the grava-
men of the legal complaint.120

The plea for a transparent deference doctrine has not yet inspired
change in United States courts. For now, courts tend to yield to the un-
challenged expertise of prison administrators. There are many possible
explanations, including, perhaps, a reluctance to encounter the complex
and distressing reality of life inside penal institutions. The point here is to
see that modern United States courtsrather than using the ancient
tools of denying legal standing or flatly rejecting the idea of law-governed
prisonsdeploy notions of expertise and deference as a means of bypass-
ing prisoner claims. The United States cases demonstrate that judicial
protection of prisoners constitutional rights is unfeasible unless courts
require professional penal judgments and objectives to be supported by
evidence. For Canadian law to complete the shift to the Charter era,
courts must shift the burden to prisons to prove their empirical assertions
about the purposes, necessity, and effects of penal techniques that impair
rights.

IV. Transitioning to a Rights-Based Paradigm

Transition to a Charter-based penal law requires that judges appreci-
ate the structural imbalance in expertise at the outset of a case, and not
aggravate that imbalance by relaxing scrutiny of the penal context. Plain-
tiffs counsel can foster a better balance by adducing evidence that contex-
tualizes the assertions of prison defendants. Prisons do not need to be
viewed as mysterious places by courts, nor as places where necessarily
amateur outside intervention could trigger unknown dangers. Former
prison administrators, and administrators from other jurisdictions, can
give testimony to illuminate internal dynamics. Psychologists can conduct
individual assessments and speak to the impacts of particular penal re-
gimes. The independent reports of prison monitors can inform awareness
of systemic issues.121 Prison sociologists and ethnographers can illuminate
the internal prison world and the variable modes of prison administra-
tion.122

120 Dolovich, supra note 2 at 249.
121 In Canada, the reports of the Office of the Correctional Investigator are an invaluable
resource both for setting strategic litigation agendas and informing judges of systemic
issues. Section 189 of the CCRA, supra note 29 sets out that the Correctional Investiga-
tor is not a competent or compellable witness in legal proceedings, but this does not
prevent the use of the reports as evidence.

122 The focus of prison studies has shifted over the years, from the workings of prisoner so-
ciety (see Gresham M Sykes, The Society of Captives: A Study of a Maximum Security

CONTESTING EXPERTISE IN PRISON LAW

As one illustration, the work of British criminologist Alison Liebling is
grounded on a thesis that the quality of imprisonment can be reliably
measured and analyzed. Liebling uses diagnostic tools to capture what
she calls the moral quality of a given institution, along the dimensions of
relationships, regimes, social structures, meaning and overall quality of
life.123 Liebling is able to measure and elaborate on important factors that
are difficult to quantify, such as how material goods are delivered, how
staff approach prisoners, how managers treat staff, and how life is lived,
through talk, encounter, or transaction.124 While Lieblings concept of
moral quality speaks to aspects of prison life that likely extend beyond
that which should or can be regulated by law, we can see within her work
a number of legally relevant dimensions. Lawyers must now learn how to
translate problems in the complex world of prisons into cognizable legal
claims. For instance, the prison effects literature125 identifies the factors
relevant to rates of prisoner suicide,126 the impact of imprisonment on the
elderly,127 and the multiple negative effects of overcrowding on safety,
health, and psychological integrity.128 Viable Charter claims could be or-
ganized around each of these empirical sites.

Prison (Princeton: Princeton University Press, 1958)), to models of prison management
(see John J DiIulio, Jr, Governing Prisons: A Comparative Study of Correctional Man-
agement (New York: Free Press, 1987)), to the effects of modern forms of law on prison
administration (see Jacobs, The Prisoners Rights Movement, supra note 80). For a
Canadian study that tracks the progression of penal law and prison administration in
recent years, see Jackson, Justice Behind the Walls, supra note 30.

123 See Alison Liebling & Helen Arnold, Prisons and their Moral Performance: A Study of

Values, Quality, and Prison Life (New York: Oxford University Press, 2004).

124 Ibid at 50 [emphasis in original].
125 Prison effects research is helpfully compiled in Alison Liebling & Shadd Maruna, In-
troduction in Alison Liebling & Shadd Maruna, eds, The Effects of Imprisonment (Port-
land, Or: Willan, 2005) 1.

126 Alison Lieblings research on prison suicide reveals how custodial life takes place on a
continuum of distress, and how particular social and institutional arrangements can
enhance vulnerability to self-harm and suicide. See generally Suicides in Prison (New
York: Routledge, 1992). See also Alison Liebling, Moral Performance, Inhuman and
Degrading Treatment and Prison Pain (2011) 13:5 Punishment & Society 530. For a
report on the rates of suicide in Canadian prisons, which are seven times higher than
the national average, see Howard Sapers, Deaths in Custody in Annual Report 2011-
2012 (Ottawa: Office of the Correctional Investigator, 2012) 18. See also Howard Sa-
pers, A Three Year Review of Federal Inmate Suicides (20112014) (Ottawa: Office of
the Correctional Investigator, 2014).

127 See Elaine Crawley & Richard Sparks, Older Men in Prison: Survival, Coping and
Identity in Alison Liebling & Shadd Maruna, eds, The Effects of Imprisonment (Port-
land, Or: Willan, 2005) 343.

128 Empirical studies indicate that prison overcrowding is related to rule infractions and
assaultive behaviour, and to the rate of communicable disease, illness complaints, psy-

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Other marginalized litigants have successfully deployed empirical re-
search to support their litigation efforts in the Charter era. The question
of evidence has, in fact, been the critical dimension for claimants who ex-
perience chronic marginalization and popular resentment. This is at least
partially because the evidentiary record is the means by which counsel
can insist that constitutional adjudication not mirror conjecture and ste-
reotyping from the wider culture. In response to these strategies, Canadi-
an judges have extended the privilege of adjudication on the basis of facts
rather than stereotypes, to groups such as sex workers129 and injection
drug users.130 Each of these cases involved a voluminous trial record, with
experts testifying from the fields of epidemiology, medicine, sociology, and
criminology. The analysis undertaken by the Supreme Court in Sauv is
an indication of the extension of that privilege of sound evidentiary
standards to prisoners as well. Counsel for prisoner claimants should con-
tinue to focus on the issue of expert evidence, notwithstanding the diffi-
culties of doing so, and should be aware that there is an extraordinary
range of expertise and literature that could bear upon future Charter
claims.

The following three case studies illuminate how that might be done on
contemporary topics that are of vital importance to prisoners. The first
example stems from a decided case that deals with the use of long-term
segregation on prisoners. In that case, success depended on the ability of
the plaintiff to adduce an evidentiary record that contextualized the ef-
fects and necessity of the prisons specific style of segregation or solitary
confinement.131 The second example is also a decided case, dealing with

chiatric commitments, stress, hypertension, and death. A study supported by the Unit-
ed States National Institute of Corrections concludes: [S]tudies whose results do not
conform to this pattern are few in number and do not seriously challenge the conclusion
that prison overcrowding can have pronounced negative consequences on the lives of
individual inmates (Terence P Thornberry & Jack E Call, Constitutional Challenges
to Prison Overcrowding: The Scientific Evidence of Harmful Effects (1984) 35:2 Has-
tings LJ 313 at 351). For discussion of how recent crime legislation may increase the
prison population and impact the quality of prison healthcare in Canada, see Adelina
Iftene & Allan Manson, Recent Crime Legislation and the Challenge for Prison Health
Care (2013) 185:10 Can Medical Assoc J 886.

129 See e.g. Bedford v Canada (AG), 2013 SCC 72, [2013] 3 SCR 1101; Canada (AG) v

Downtown Eastside Sex Workers, 2012 SCC 45, [2012] 2 SCR 524.

130 See e.g. Canada (AG) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR

134 [PHS].

131 Solitary confinement is a widespread prison practice used to manage prisoners who are
perceived to be disruptive or vulnerable. In Canada, indefinite solitary is permitted un-
der both federal and provincial legislation, where it is called administrative segrega-
tion. Evidence has now emerged that the lack of peer contact and minimal time out of a
cell can have severe impacts on health. The practice presents the most significant risks
to prisoners with preexisting mental health issues, which is particularly concerning

CONTESTING EXPERTISE IN PRISON LAW

the abrupt cancellation of a program that enabled mothers to keep their
babies with them in prison. The plaintiffs resounding victoryresulting
in the reinstatement of the program and a decision that was not appealed
by the governmentrested on voluminous evidence on the benefits of the
program, for both mother and child, and a dearth of evidence on potential
downsides. Finally, the third example concerns the ability of prisoners to
access harm-reducing measures that are available to injection drug users
outside of prison. A case on this issue has been filed but not yet adjudicat-
ed. Early indications suggest the record will be rich with epidemiological
evidence on disease transmission in the prison context, along with com-
parative evidence from prison systems that have safely implemented
harm reduction programs.

A. Solitary Confinement: Bacon v. Surrey Pretrial Services Centre

There is a pre-Charter history of judicial intervention into solitary con-
finement which arose out of the extreme conditions and prisoner isolation
found in the British Columbia Penitentiary in the 1970s.132 In R. v.
McCann,133 after a trial rich with expert testimony, the Federal Court de-
clared these conditions to be cruel and unusual punishment within the
meaning of section 2(b) of the Bill of Rights. The McCann litigation was
part of an early wave of prison legality in Canada. The case was a formal

given that mentally ill prisoners are at high risk of being segregated and are often least
able to meet the behavioural standards required to merit release from segregation.
There is now a large literature on these issues. For just two examples, see Craig Haney,
Mental Health Issues in Long-Term Solitary and Supermax Confinement (2003) 49
Crime & Delincy 124; Stuart Grassian, Psychiatric Effects of Solitary Confinement
(2006) 22 Wash UJL & Poly 325. For many years in his annual report, the CI has
called for an end to the unsafe practice that allows for prolonged segregation of mental-
ly disordered inmates in Canadian penitentiaries (Sapers, Deaths in Custody, supra
note 126 at 19). In May 2012, Canada was criticized for its use of solitary confinement,
in the forms of disciplinary and administrative segregation, often extensively prolonged,
even for persons with mental illness (Committee against Torture, Consideration of re-
ports submitted by States parties under article 19 of the Convention, UNCAT, 48th Sess,
UN Doc CAT/C/CAN/CO/6 (2012) at 6). The refusal of the federal government and the
Correctional Service of Canada to reform its practices, notwithstanding multiple inde-
pendent recommendations for reform, is chronicled in Michael Jackson, The Litmus
Test of Legitimacy: Independent Adjudication and Administrative Segregation (2006)
48:2 Can J Criminology & Criminal Justice 157. For more on the history of the legal
regulation of solitary in comparative perspective, see Lisa Kerr, The Chronic Failure of
US and Canadian Law to Control Prisoner Isolation, Queens LJ [forthcoming in 2015].

132 See Jackson, Prisoners of Isolation, supra note 27.
133 [1976] 1 FC 570, 29 CCC (2d) 337 [McCann].

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victory, but Michael Jacksonwho was counsel on the casehas detailed
the difficulties of seeing the judgment implemented.134

In the Charter age, an early challenge to solitary confinement came
from notorious serial killer Clifford Olson, who brought the case pro se
and filed no expert opinion material. In its 1987 decision, the Supreme
Court of Canada upheld the Ontario Court of Appeals finding that seg-
regation to a prison within a prison is not per se cruel and unusual treat-
ment.135 The opinion of Justice Brooke confirmed the test for section 12 of
the Charter from R. v. Smith:136 [W]hether the punishment prescribed is
so excessive as to outrage standards of decency, such that the effect of
that punishment [is] grossly disproportionate to what would have been
appropriate.137 Justice Brooke concluded that, on the facts of the case,
segregation was required to protect Olson, given that the prison commu-
nity despised him. The court accepted that segregation could, theoretical-
ly, become so excessive that it would outrage standards of decency. In Ol-
sons case, however: He is continually observed and his health is protect-
ed. There does not appear to be any adequate alternative.138 Olson did
not adduce any evidence on the effects of segregation nor any evidence as
to alternatives to long-term isolation.139

134 See Jackson, Prisoners of Isolation, supra note 27 at 134203 (noting, for example, that
one governmental report conducted in response to McCann was content to leave the
authority to segregate untrammelled by any substantive criteria, with the result that
their recommendations left the basis for the decision as vague and unprincipled as it
had always been at 139). In the weeks following the McCann judgment, the segregated
prisoners at the British Columbia Penitentiary were moved out of the contested
cellblock, but after a security incident prisoners were returned with few changes having
been made (see ibid at 14041).

135 R v Olson (1987), 62 OR (2d) 321 at para 40, 38 CCC (3d) 534 (ON CA), affd R v Olson,

[1989] 1 SCR 296, 47 CCC (3d) 491 [Olson].

136 [1987] 1 SCR 1045, 40 DLR (4th) 435.
137 Olson, supra note 135 at para 35.
138 Ibid at para 40.
139 The reality is that both Clifford Olsons crimes and his prison circumstances were ex-
tremely rare. On the occasion of his death, one reporter said this about the impact that
Olson had on Canadian law: His crimes gave rise to the victims of violence movement,
their representation at trials and parole hearings, and the establishment of a missing
childrens registry; his incessant demands for parole led to an amendment of the Crimi-
nal Code barring multiple murders from applying for early parole under the faint-hope
clause; and his ability to collect pension and old age income supplements resulted in the
passage of Bill C-31 denying such payments to prisoners while they are incarcerated
(Sandra Martin, The life and death of Clifford Olson, The Globe and Mail (30 Septem-
ber 2011), online: ). In terms of his challenge to solitary confinement, while
this is the only post-Charter case about administrative segregation that has reached the
Supreme Court, the brief opinion it elicited is of little precedential value. The case was

CONTESTING EXPERTISE IN PRISON LAW

In 2010, the Supreme Court of British Columbia considered a very dif-
ferent record in a Charter-based challenge to prisoner segregation in Ba-
con. A pretrial detainee was confined to a cell in a provincial facility for
twenty-three hours a day, with no visits permitted except with his lawyer
and parents, no other social contact, and limited access to exercise. As in
Olson, the jail justified the segregation on the basis of the prisoners need
for protection: Bacon faced multiple gang-related homicide charges. The
jail argued that release to general population could result in the prisoners
assault or murder due to the nature of his crimes and his criminal associ-
ations, and further that separation was required to protect the integrity of
the criminal prosecution being brought against Bacon. The justifications
offered by the jail merited serious considerationon the facts presented
from the perspective of the jail and its central concerns, it seemed sensible
to keep Bacon isolated, for both his own protection and to prevent any in-
terference in the trial of the charges against him.

In a move that compelled the court to examine a further set of issues,
Bacons counsel filed an expert opinion from psychologist Craig Haney, a
leading expert on prison conditions and the mental health effects of segre-
gation. The trial judge, Justice McEwan, found Haney to be a qualified
expert, given his thirty-five years of experience studying the psychological
effects of living and working in institutional environments:

He has toured prisons in the United States, Canada, Cuba, England,
Hungary and Russia and has performed a study of prison conditions
in Mexico. He has written extensively in the field of crime and pun-
ishment and has published numerous articles on prison life, includ-
ing solitary confinement. … I certainly accept that Professor Haney
is qualified, by virtue of his experience, to offer opinion evidence on
prison conditions, and to assist the Court in placing the treatment
the petitioner has received in context.140

Justice McEwan cited large portions of Haneys affidavit, which de-
scribed how Bacon had often been housed in very harsh and truly severe
conditions, equivalent to those imposed in supermax facilities in the
United States.141 Bacons unit housed mentally ill prisoners, and staff ad-
vised that these distressed prisoners regularly threw feces and bodily flu-
ids. Bacon ate all of his meals in an eighty-square-foot cell, within a few
feet of his toilet. He had no access to programs or organized activities. He
remained in his cell nearly every hour of every day. Contact with anyone

litigated, poorly, by Olson himself. In addition, Olson was not held in twenty-three hour
per day cellular confinement, but was kept in a separate area of the prison under the
control of designated correctional officers.

140 Bacon, supra note 17 at paras 16869.
141 Ibid at para 170.

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other than his parents was reduced to mail correspondence, which Haney
noted as more restrictive than most American policies. Bacons mandatory
one hour outside of his cell came, quite unnecessarily, at random times,
without warning or ability to plan for it. His outdoor time entailed time
spent in a different concrete courtyard with no exercise equipment or oth-
er people. Haney observed that the structural and procedural modifica-
tions required for long-term housing of isolated prisoners had not been
built into the facility, and, finally, that staff lacked training with respect
to the psychological effects of long-term isolation, with no procedure in
place whereby the mental health status of each prisoner is checked rou-
tinely, frequently, and carefully.142

The jail argued that Haneys evidence described an American practice
rather than the conditions in which he found Bacon. Justice McEwan re-
jected the argument, and accepted Haneys evidence that the physical
conditions under which the petitioner has been held compare … to some of
the worst conditions in the United States and elsewhere. Such conditions
have been condemned by the international community.143 Justice McEw-
an further found:

The petitioner is kept in physical circumstances that have been con-
demned internationally. He is locked down 23 hours per day and
kept in the conditions Professor Haney described as horrendous.
These conditions would be deplorable in any civilized society, and
are certainly unworthy of ours. They reflect a distressing level of ne-
glect. On top of this, the petitioner is only allowed out at random
times. He is denied almost all human contact. His treatment by the
administration and the guards is highly arbitrary and further accen-
tuates his powerlessness.144

In his conclusion that these dimensions of Bacons treatment violated
section 12 of the Charter, Justice McEwan acknowledged the holding in
Olson to the effect that segregation is not, per se, cruel and unusual
treatment.145 However, Justice McEwan also referred to the 2001 holding
in United States v. Burns,146 where the Supreme Court of Canada insisted
that the government obtain assurances, before granting extradition, that
the death penalty will not be sought. The Burns court noted that the con-
temporary American death penalty involves over a decade of post-
conviction legal review, during which time the condemned person is held

142 Ibid.
143 Ibid at para 303.
144 Ibid at para 292.
145 See ibid at para 302.
146 United States v Burns, 2001 SCC 7, [2001] 1 SCR 283 [Burns].

CONTESTING EXPERTISE IN PRISON LAW

in the most restrictive conditions known in the prison system.147 These
dynamics generate a form of mental suffering known as death row phe-
nomenon, which the court found violates the Charter.148 The Burns opin-
ion thus makes psychological pain a relevant harm to be considered in a
section 12 analysis. Justice McEwan used the Burns decision to find that
the test of whether punishment is so excessive as to outrage standards of
decency now includes the perspective of psychological expertise as to the
actual effects of an impugned punishment regime.149

This subtle shift moves section 12 from a purely moral and abstract
concept to a more grounded, empirical approach. The prisons justifica-
tions for the segregationsensible at first lookmust then be considered
in the light of the specific qualitative features of the confinement, and the
effects of those features on the individual prisoner. Haneys evidence de-
scribed a range of qualitative conditions and factors that can combine in
the prison setting to create a certain pitch of severity; even if separation
were justified, the evidence raised serious doubt about whether this par-
ticular mode of separation was necessary. Due to this record, Justice
McEwan was able to think comparatively and to locate the conditions at
Surrey Pretrial in a larger context. While Haneys evidence did not prove
the existence of cruel and unusual punishment in any strict causal
sense, the evidence assisted Justice McEwan in interpreting the social
meaning of the solitary range at Surrey Pretrial and to consider that
meaning in light of a general constitutional standard.150

147 See ibid at para 119.
148 Ibid at para 94.
149 Ibid at paras 30103.
150 This is precisely the approach envisioned in Ronald Dworkin, Social Sciences and Con-
stitutional Rightsthe Consequences of Uncertainty (1977) 6:1 JL & Educ 3. Dworkin
considers a problem that arose from the United States school desegregation cases. A
concern had emerged that desegregation decisions in the federal courts, including the
Supreme Court in the decision of Brown v Board of Education, 347 US 483, 74 S Ct 686
(1954) [Brown], had been decided on the basis of propositions that could be either con-
firmed or disconfirmed by the social sciences. A worry emerged as to whether consti-
tutional rights should rest upon evidence that could contain arbitrary or transitory el-
ements: see Edmond Cahn, Jurisprudence (1955) 30 NYUL Rev 150 at 15768; Ken-
neth B Clark, The Desegregation Cases: Criticism and the Social Scientists Role
(1960) 5 Vill L Rev 224. To respond to this worry, Dworkin distinguishes between
causal and interpretive judgments flowing from social evidence, and notes that the
latter entails analyzing a phenomenon by specifying its meaning within the society in
which it occurs (Dworkin, supra note 150 at 4). Dworkin agreed that there would be
ample reason to deplore any general dependence of adjudication upon complex judg-
ments of causal social science (ibid at 6). But these same objections do not apply to in-
terpretive judgments, which must be framed in the critical vocabulary of the communi-
ty in question, which serves as a check on meaning and gives refuge from the arbi-
trary (ibid). Dworkin notes that interpretive judgments are not foreign to the judge,

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The court stopped short of striking down the enabling legislation, not-
ing that the formal law had been so seriously misinterpreted, misapplied
or ignored that the question of its constitutionality could not be meaning-
fully addressed.151 Justice McEwan did not interfere unduly in the jail
administration: he refused the petitioners request for a transfer and to be
placed in general population, saying that the court could not take respon-
sibility for the assessment of the risks actually posed by and to the peti-
tioner, or for the specific allocation of resources available to the admin-
istration of the institution.152 The Court noted, however, that there were
multiple constitutional breaches, and that the jail officials had seriously
lost sight of their responsibility to the judicial branch of government.153
The Court found that the prisoner could remain segregated, but held that
he must not be kept in separate confinement without being offered
privileges equivalent to a general population prisoner.154

In sum, Justice McEwans finding was that the physical separation of
the prisoner might be justified, but that the particular features of segre-
gation at Surrey Pretrial extended far beyond what was necessary to
achieve separation. Justice McEwan directed immediate compliance with
law, policy, and the court order, and he retained jurisdiction for purposes
of ongoing supervision. The remedial aspects of the decision make clear
that it is possible for a court to analyze and appreciate the correctional
context, and to grant orders that reconcile individual rights with penal
realities and the limits of the judicial role.155

and do not draw on arcane technology. Rather, such judgments are central to constitu-
tional adjudication. It seems to me that Justice McEwan used the expert evidence be-
fore him in order to make an interpretive judgment about the mode of confinement de-
livered in the Surrey Pretrial segregation unit.

151 Bacon, supra note 17 at para 338.
152 Ibid at para 333. A subsequent petition was decided in Bacon v Surrey Pretrial Services
Centre, 2012 BCSC 1453, 292 CCC (3d) 413 concerning, inter alia, the surreptitious re-
cording of Mr. Bacons telephone calls with his lawyer and interference with his legal
mail.

153 Bacon, supra note 17 at para 334.
154 Ibid at para 336 [internal quotations omitted]. Justice McEwan concluded further that
Bacon is entitled to equal treatment to general population prisoners in all material re-
spects, including the same amount of time out of cell, and being informed of what he
may expect in terms of things like time at the gym, with no unreasonable and petty
deprivations simply because of the fact that he is in separate confinement (ibid). The
court emphasized that Mr. Bacon is a pretrial defendant and presumed innocent.

155 One further implication of this decision is that Mr. Bacon may be in a position to re-
quest a stay of the prosecution brought against him. Under Canadian law, a stay may
be granted for an abuse of process only in the clearest of cases (R v OConnor, [1995] 4
SCR 411 at para 53, 130 DLR (4th) 235 [internal quotations omitted] [OConnor]).
There are two categories where the court may be moved to grant a stay: (a) where the

CONTESTING EXPERTISE IN PRISON LAW

In obiter remarks, Justice McEwan noted that there is a growing
sense internationally, as well as in Canada, that locking a person down
for twenty-three hours per day is an inappropriate way to treat any hu-
man being. He pointed to Sauv to argue that judicial reluctance to con-
demn solitary confinement outright is not entirely characteristic of the
approach taken by the courts to inmates rights in other contexts.156
When it came to the voting ban, the Supreme Court struck down a prac-
tice that it found was more likely to erode respect for the rule of law than
to enhance it, and more likely to undermine sentencing goals of deter-
rence and rehabilitation than to further them.157 Justice McEwan found
administrative segregation to be indistinguishable from the voting analy-
sis on these grounds: like the prisoner voting ban, segregation is likely to
erode respect for the rule of law and be counterproductive to the goals of
deterrence and rehabilitation. That perspective becomes clear once the
details of the conditions and the psychological effects of the stigma and
social deprivation of penal segregation are described.
A future legal challenge to the federal administrative segregation re-
gime will likely take precisely this approach.158 In a sense, what is needed
is a return to the past, but with new constitutional remedies. In the
McCann case, extensive evidence was called from multiple psychological
experts, who made clear that the effects of extreme isolation did not serve
legitimate penological purposes, and that other means of separating pris-
oners from the general prison society would be less destructive. Prior to
Bacon, the McCann case was the only case in Canadian history in which
the conditions of segregation were found to constitute cruel and unusual
punishment or treatment. It seems that a return to the McCann mode of
litigation will be essential so as to challenge contemporary solitary con-

abuse of process deprives the accused of a fair trial (trial fairness concerns); or (b) where
the affront to the administration of justice by the abuse of process is such that the pros-
ecution should be terminated (institutional concerns). See e.g. ibid; R v Regan, 2002
SCC 12, [2002] 1 SCR 297. While the standard for obtaining a stay is difficult to meet,
and may be unlikely in the context of Mr. Bacons very serious case, mistreatment in a
remand facility may raise trial fairness concerns as a general matter. Institutional con-
cerns are certainly raised by unconstitutional treatment of prisoners. The final question
is whether the trial would serve to perpetuate the abuse, and whether another remedy
is capable of removing that prejudice. The point is that there might be real consequenc-
es to this decision, even though Justice McEwan did not grant the request that Mr. Ba-
con be placed in the general population.

156 Bacon, supra note 17 at para 314. However, echoing the suggestion that I made at the
outset of this paper that Sauv may have been an easy case, Justice McEwan noted
that Sauv concerned issues unmediated by the sort of operational and resource con-
siderations that go into the analysis of a particular standard of treatment (ibid).

157 Sauv, supra note 9 at para 58.
158 For more on the prospects of a federal challenge, see Kerr, supra note 131.

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finement. But the goal now is a Charter remedy that will strike the provi-
sions of the CCRA that allow indefinite isolation but lack proper controls.
The evidentiary foundations of a legal challenge will also be enriched by
advances in medical knowledge, and the development of international
norms regarding the effects of isolation.

B. Mother-Baby Programs: Inglis v. British Columbia (Minister of Public

Safety)

The 2013 case of Inglis v. British Columbia (Minister of Public Safety)
stands as one of the most significant prisoner rights cases in Canadian
history. The case involved multiple Charter provisions, multiple expert
witnesses, interveners at the trial level, and a decision that effectively re-
quires all provincial jails in the province to facilitate an option for infants
to remain with their incarcerated mothers. The plaintiffs in Inglis were
former inmates of Alouette Correctional Centre for Women and their chil-
dren. The litigation arose from a decision to cancel a program, in place
since 1973, which permitted mothers to have their babies with them while
they served sentences of provincial incarceration.159 The Supreme Court of
British Columbia ruled that the provincial governments decision to close
the program was unconstitutional and violated the plaintiffs equality
rights, as well as their rights to security of the person. The trial judge,
Justice Ross, found that the decision to end the program was not made
with due consideration of the best interests of children or the constitu-
tional rights of mothers, nor was the cancellation due to any legitimate
fears about potential harm. In fact, the evidence showed that the program
was beneficial to mothers, babies, and the prison environment as a whole.

The Inglis case turned partly on the question of why Alouette can-
celled the program in 2007. The provincial defendant asserted, in its
pleadings and through multiple witnesses and the arguments of counsel,
that the program was cancelled because of a concern about the safety of
the infants.160 But central to the ruling was the fact that the prison con-
ducted no evaluation of the risks and benefits of the program before can-

159 Access to the program was contingent upon approvals by the Ministry of Children and
Family Development (MCFD), acting pursuant to the provisions of the Child, Family
and Community Service Act, RSBC 1996, c 46, which assessed whether it would be in
the best interests of the child.

160 For example, Brent Merchant, the key decision maker who was Provincial Director of
Corrections, testified that his decision to cancel the program was based on the fact that
he believed he could not guarantee the safety of infants in a custody setting. He stated
that was a risk that he was not prepared to take (Inglis, supra note 17 at para 183).

CONTESTING EXPERTISE IN PRISON LAW

cellation.161 Indeed, there was in fact a record of successful operation of
the program and others like it.162 So while the structure of the case was a
classic setting for judicial deference to be offered to prison administra-
torsin that it concerned risk assessment, resource allocation, and daily
penal operationsthe lack of evidence supporting risk could not counter
the extensive evidence indicating the benefits of the program.

In terms of benefits, a considerable body of expert evidence was placed
before the court, which enlarged the scope of the analysis. Most notably,
research in developmental psychology was brought to bear upon the jails
proffered justification that it was better for infants to be kept out of the
prison context and thus away from their birth mothers. The opinion noted
the following themes in the evidence:

(a) rooming in is considered best practice for mothers and babies in
the post-partum period and is associated with health and social
benefits for both mothers and babies;

(b) breastfeeding is associated with important health and psychoso-

cial benefits for both infants and mothers;

(c) one of the most important developmental tasks of infancy is the
formation of attachment by the infant to a primary caregiver,
usually but not necessarily the mother. Secure attachment is
important to the infants psychological and social functioning.
Interference with attachment puts the infant at risk for devel-
opmental deficits and future psychological and social difficulties;
and

161 The Warden of Alouette testified that, when she started as Warden in 2007, there was
a lot of work being done to assess the best way to phase out the Program and to com-
municate the decision to the general population (ibid at para 170). The Warden agreed
that she was never asked to assess the Mother Baby Program and she did not conduct
such an assessment. She did not undertake any study of any other mother baby pro-
grams (ibid at para 171). Merchant testified that the decision to cancel was made not
because of a specific problem or review but because he arrived at the opinion that the
mandate of Corrections does not include babies (ibid at para 182).

162 In his testimony, Merchant agreed that he was aware of no instance in British Colum-
bia or elsewhere of an infant being exposed to any prison contraband such as drugs. See
ibid at para 184. The Warden testified that she was not aware of any safety incidents
while she was warden involving mothers and babies and that she was not aware of any
actual safety incidents from before she became warden (ibid at para 171). Another gov-
ernment witness, Dr. Elterman, testified that he had found no report of any death of
an infant in a mother baby program anywhere in the world, and that in a literature re-
view he had found no instance of any literature recommending against having a moth-
er-baby program (ibid at paras 292, 294). But see the work of Lynn Haney for a feminist
caution against mother-baby programs, which was not canvassed in the Inglis trial:
Motherhood as Punishment: The Case of Parenting in Prison (2013) 39:1 Signs: J of
Women in Culture & Society 105.

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(d) the importance of individualized decision-making with respect

to the best interests of the child.163

Witnesses who recommended the program included a nurse within
federal corrections;164 a PhD in sociology and health education with rele-
vant research;165 and a physician with a background in obstetrics and ad-
diction.166 Expert testimony came from a psychologist with extensive ex-
perience in corrections;167 the prison physician at Alouette during the
pendency of the program;168 and a law professor who advised that similar
programs were available in modern prisons across the world, including
the United States, Europe, Australia, and New Zealand.169 Even experts
retained by the government agreed on the central proposition of the plain-
tiffs case: that it benefits an infant to be breastfed and to form a secure
attachment with the parent. One government witness, clinical and foren-
sic psychologist Dr. Elterman, did not recommend against the program
but said only that the question of whether these benefits outweigh risks
must be assessed on a case-by-case basis.170 Other government witnesses
were criticized for lacking prison experience,171 and for presuming that
Alouette had no separate unit for the program, which was not in fact
true.172 Finally, while one expert for the government reviewed prison logs
and concluded that Alouette was a stressful household, Justice Ross
noted that stressful factorsa baby crying, a pregnant mother feeling
stressed, a mother who is tired because her baby has been crying, or a col-
icky babyare not uncommon outside of the prison context.173

163 Inglis, supra note 17 at para 6.
164 Alison Granger-Brown. See ibid at paras 8488.
165 Dr. Amy Salmon. See ibid at paras 8992.
166 Dr. Ronald Abrahams. See ibid at paras 9394.
167 Dr. Peggy Koopman. See ibid at para 255.
168 Dr. Ruth Martin. See ibid at para 262.
169 Professor Michael Jackson. See ibid at para 274.
170 And this was in fact how the program had been conducted, given the involvement of the

MCFD in placement decisions. See ibid at paras 28992.

171 Dr. Richelle Mychasiuk, for example, had no experience with prisons, never visited
Alouette, and drew from literature on high risk environments that were not prison
studies (ibid at para 303). Justice Ross was critical of this category of evidence. See ibid
at paras 300306.

172 For example, Dr. Elterman was of the opinion that any mother baby program at
[Alouette] should be housed in a separate unit. He had not been told by the defendants
in his instructions that there is a separate unit at [Alouette], Monarch House, that is
currently standing empty. Indeed he was instructed by the defendants to assume that
there was no separate unit (ibid at para 293).

173 Ibid at para 321.

Even the key decision maker who cancelled the program, Brent Mer-
chant, did not disagree with evidence he had reviewed about the benefits
to those in the program and the broader community:

CONTESTING EXPERTISE IN PRISON LAW

Mr. Merchant agreed that … there are both social and medical bene-
fits to keeping mothers and babies together, for both the parent and
the child. He agreed that there is scientific and medical evidence
supporting the importance of forming attachment by the child to the
primary caregiver, normally the mother, relating to the development
of the infants brain and the infants ability to relate to the world. He
agreed that inadequate attachment has been identified to be at the
root of many psychosocial problems that contribute to criminal be-
haviour. He agreed that there are psychological benefits for the
mother and that a mother baby program could help the mother de-
velop parenting skills.174

In terms of the legal analysis of this highly consistent evidence, the

Inglis court said that the starting point is the principle that an incarcer-
ated person retains all of her civil rights, other than those expressly or
impliedly taken from her by law.175 The citation for that principle predates
the Charter, though Justice Ross properly brings it to bear in her section 7
analysis. The early authority is the 1980 decision of R. v. Solosky,176 which
concerned the right of prisoners to correspond, freely and in confidence,
with their lawyers. In Solosky, Justice Dickson introduced important
principles for the review of decisions taken in the prison context. He noted
that courts have a balancing role to play in ensuring that any interference
with the rights of prisoners by institutional authorities is for a valid cor-
rectional goal, and that such interference must be the least restrictive
means available, no greater than is essential to the maintenance of secu-
rity and the rehabilitation of the inmate.177 These principles are now cap-
tured by section 7s protection of liberty and security of the person, as well
as in the principles of fundamental justice and section 1 doctrine. The
principle of retained rights requires asking an empirical question, namely
what rights are compatible with incarceration, and delivering upon their
protection. Justice Ross, informed by a significant evidentiary record,
found that the program was clearly compatible, given that it had been
working for decades in both the province and the federal system.178

174 Ibid at para 186.
175 Ibid at para 379.
176 [1980] 1 SCR 821, 105 DLR (3d) 745 [Solosky]. See ibid at 839 for an articulation of the

retained rights principle.

177 Ibid at 840.
178 See Inglis, supra note 17 at para 410.

88 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL

Justice Ross concludes that, in deciding to cancel the program, the
state acted on the basis not of reasonable apprehension of harm but from
the imposition of an impossible standarda guarantee of safety.179 Mer-
chant adopted this standard notwithstanding that he acknowledged that
such a guarantee could never be met within Corrections, and that it was
not a standard they applied in any other situation.180 The court accepted
that Corrections is entitled to be proactive in responding to a reasonable
apprehension of harm, but found that no investigation was undertaken
at the time to determine whether there was such an apprehension.181
Given the lack of internal evaluation, the jail lacked internally sourced
expertise sufficient to defeat the forms of expertise advanced by the plain-
tiffs. The serious effects of the cancellation engaged both the equality and
the security of the prison rights of the plaintiffs, and could not be justified
under section 1 due to any legitimate state objective such as fears about
potential risks of continuing the program.

Justice Ross noted that the evidence did indicate some possibility of
harm to infants, but she contextualized that possibility by noting that
there was a risk of harm to infants in virtually any environment, includ-
ing foster care as well as with relatives in the community. In this sense,
Justice Ross did not allow the prison to be an entity sealed off from ordi-
nary society, but considered it as just one institutional space on the spec-
trum of environments that a child, and particularly a child of an incarcer-
ated person, may come to experience. By broadening the spectrum of risk
to consider facts beyond prison walls, the prison defendant lost its most
reliable litigation trump card. Justice Ross applied family law concepts,
spurred by evidence in developmental psychology on the benefits of moth-
er-infant attachment. The defendant argued that family law is not appli-
cable to the jail context and that it was not obliged to consider or to at-
tempt to maximize the best interests of the children.182 Justice Ross re-
jected the notion that the jail was responsible only for the positive content
of corrections law. Rather, Corrections was responsible for applying the
multiple sources of domestic and international law, all of which make
clear that the best interests of the child apply to state actions.183 Justice

179 Ibid at para 460.
180 See ibid at para 455.
181 Ibid at para 459.
182 See ibid at paras 369, 434.
183 See ibid at para 370. See also ibid at para 371: The defendants submit that Corrections
is entitled to make decisions that will inevitably result in children being seized by the
state without any consideration of the best interests of the children affected. In my view
the state cannot be permitted, through such compartmentalization, to avoid its obliga-
tions.

CONTESTING EXPERTISE IN PRISON LAW

Ross rejected the compartmentalization of the punishment context and
the law that applies there.

The courts approach in Inglis contains many indicators of a shift to a
Charter-based penal law. The promise of the holding is enhanced by the
fact that, unlike Sauv, the case involved matters central to daily penal
operations and questions of risk management. Notably, the provincial
government elected not to appeal the decisions in either Bacon or Inglis,
which serves as some indication of the soundness of the evidence and rea-
soning along with the educative function of the trial process. Both cases,
along with the pre-Charter McCann case, are emblematic of litigation that
illuminates the qualitative experiences of punishment, and specifies the
range of alternatives to a rights infringement. The result has been to
wrestle prisoner law away from deferential modes that conceive of the
task of penal administration as an expert realm with which judges ought
not interfere.

C. Harm Reduction

A final example of a new mode of prisoner litigation has not yet been
adjudicated. On September 25, 2012, the Canadian HIV/AIDS Legal Net-
work and four co-applicants filed a lawsuit arguing that the failure to
make sterile injection equipment available in federal penitentiaries vio-
lates sections 7 and 15 of the Charter.184 The individual plaintiff, Steven
Simons, had been incarcerated at Warkworth Institution from 1998 to
2010. His pleadings state that he acquired hepatitis C virus (HCV) when
a fellow prisoner borrowed his drug injection equipment without his
knowledge. The pleadings seek an order directing the Correctional Ser-
vice of Canada, and its Commissioner and the Minister of Public Safety, to
ensure the implementation of sterile needle and syringe programs in all
federal penitentiaries, in accordance with professionally accepted stand-
ards.185

The case emanates from a voluminous literature indicating that the
rate of HCV in Canadian prisons is over twenty times higher than the
rate in the community,186 and that injection drug use is prevalent in pris-

184 See Simons v Canada (25 September 2012), Toronto (Ont Sup Ct) (Notice of Applica-
tion). Plaintiffs include Steven Simons, Canadian HIV/AIDS Legal Network, Prisoners
with HIV/AIDS Support Action Network, Canadian Aboriginal AIDS Network, and
CATIE.
185 Ibid at 4.
186 See S Skoretz, G Zaniewski & NJ Goedhuis, Hepatitus C virus transmission in the
prison/inmate population (2004) 30:16 Can Communicable Disease Report 141 at 142.

90 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL

on.187 Prisoners who tattoo or inject drugs face a scarcity of sterile syring-
es, and may resort to using non-sterile injecting equipment.188 The Cana-
dian prison system has made a modest acknowledgement of the risk of
HIV and HCV transmission in prison by making bleach available to pris-
oners,189 though there are difficulties associated with correct use, particu-
larly where injection is likely to be clandestine and rushed.190 The lawsuit
is likely to turn on the record established by expert evidence. Epidemiolo-
gists will establish medical literature indicating how disease is transmit-
ted in the prison context; penologists will speak to the viability of provid-
ing clean needles in prison, drawing on comparative evidence from other
jurisdictions.191

The law is on the side of the plaintiffs. Prison law and policy indicates
that prisoners are entitled to essential health care equivalent to that in
the community.192 As of 2001, there were over 200 needle and syringe pro-
grams in the country, which enjoy support across levels of government.193
In addition, in PHS, the Supreme Court held that harm-reducing
measures, such as supervised injection, can be characterized as medical
treatment, and that a governmental decision to prohibit access to such
measures violates section 7 of the Charter.194 It follows that both the legis-
lation and the relevant jurisprudence support an argument that prisoners
ought to be able to access these measures.195 The determinative analysis
should take place under section 1, and should be shaped by whether peno-
logical experts can explain to the court how such measures could be ac-

187 See Correctional Service Canada, 1995 National Inmate Survey: Final Report, by Price
Waterhouse, 1996 No SR-02 (Ottawa: Correctional Services of Canada, 1996) at 14446.
188 See Will Small et al, Incarceration, Addiction and Harm Reduction: Inmates Experi-

ence Injecting Drugs in Prison (2005) 40 Substance Use & Misuse 831 at 839.

189 See Correctional Services of Canada, Commissioners Directive No 821-2, Bleach Dis-

tribution (4 November 2004).

190 See World Health Organization Europe, Status Paper on Prisons, Drugs and Harm Re-
duction (Copenhagen: WHO Europe, 2005), noting that bleach can create a false sense
of security between prisoners sharing paraphernalia (ibid at 12).

191 For a treatment of the expert material likely to be adduced at trial, see Sandra Ka Hon
Chu & Richard Elliott, Clean Switch: The Case for Prison Needle and Syringe Programs
in Canada (Toronto: Canadian HIV/AIDS Legal Network, 2009) at 28.

192 CCRA, supra note 29, s 86. See also Correctional Services of Canada, Commissioners

Directive No 800, Health Services (18 April 2011).

193 See Alan C Ogborne, Harm Reduction and Injection Drug Use: An International Com-
parative Study of Contextual Factors Influencing the Development and Implementation
of Relevant Policies and Programs (Ottawa: Health Canada, 2001) at 13.

194 See PHS, supra note 130 at para 136.
195 The legal argument is outlined in detail in Ka Hon Chu & Elliott, supra note 191 at 13

38.

CONTESTING EXPERTISE IN PRISON LAW

cessed safely, in a fashion sufficient to rebut deference that the court will
offer to the strong preference of prison administrators to refuse access to
equipment that entails the use of prison contraband.196
Again, this is the thorny context where the rights claim is adjacent to
central concerns of prison administration. Bound to follow Sauv, a Cana-
dian court is unlikely to dismiss the claim on the basis of a vague theory
of penological legitimacy, or an unsubstantiated notion of rehabilitative
ideals: the peculiar standards of deference articulated in older Canadian
case law from lower courts, as well as in current American case law, are
unlikely to pervade a contemporary opinion. Further, if the court follows
the reasoning in Bacon, the claim will not be dismissed purely on the ba-
sis of the prison having limited resources.197 But these points aside, the
plaintiffs final success will hinge on their ability to explain to the court
how prisons can be safely run in the midst of easily available hygienic in-
jection equipment for drug users. The plaintiffs experts are likely to spec-
ify how such measures could be accessed while ensuring the safetyand
perhaps even improving the safetyof correctional staff and other prison-
ers. The institutional defendant will have to somehow counter that evi-
dence to meet its burden under section 1.

Conclusion
A 1956 essay by Brown v. Board of Education lawyer Jack Greenberg
contains a simple statement that raises many practical difficulties. Point-
ing out that moral judgments are generated by awareness of facts,
Greenberg argues that constitutional interpretation should consider all
relevant knowledge.198 In the case of prisoner litigation, the category of
relevant knowledge must encompass the many complex dimensions asso-
ciated with administering what Erving Goffman called the total institu-

196 At least one study concludes that needle and syringe programs have not led to in-
creased violence, and have not resulted in equipment being used as weapons against
staff or other prisoners, in Germany, Spain, and Switzerland. See Scott Rutter et al,
Prison-Based Syringe Exchanges Programs: A Review of International Research and
Program Development, NDARC Technical Report No 112 (Sydney: National Drug and
Alcohol Research Centre, 2001).

197 [R]esource issues can never justify a sub-constitutional level of treatment (Bacon, su-

pra note 17 at para 336).

198 Social Scientists Take the Stand: A Review and Appraisal of Their Testimony in Liti-
gation (1956) 54:7 Mich L Rev 953 at 969. For further discussion of the debate ignited
by the Supreme Courts reliance on expert evidence in its decision to declare school seg-
regation unconstitutional, see supra note 150. For contemporary treatment of the lega-
cy of Brown and the challenges of relying on social science in rights litigation, see Ra-
chel F Moran, What Counts As Knowledge? A Reflection on Race, Social Science, and
the Law (2010) 44:3/4 Law & Socy Rev 536.

92 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL

tion.199 A place where insiders live, work, sleep, and play with a large
number of similarly situated people, the total institution gives rise to a
profoundly broad regulatory task and the need for vast zones of flexible
discretion. The project of bringing prison empirics to bear upon the inter-
pretation of relevant legal standards is monumental and has scarcely be-
gun.200 But this is what it means to have a Charter-based law for prison-
ers, and to finally implement the basic principle of modern prison law
from Solosky: that prisoners are to retain all rights except those that are
incompatible with incarceration.
As Dolovich admits for the American context, some measure of judicial
deference is appropriate in the prison law context, as courts are far re-
moved from the hothouse of a carceral environment.201 Prisoner claims
might be properly interpreted in light of the endemic administrative diffi-
culties of operating resource-limited facilities filled with individuals who
often bring complex personal histories to the facility and who are coping
with significant deprivations. Yet, just as due deference is called for, there
is also a clear imperative for careful external review and putting govern-
ment to the burden of justification, given the pervasive risk of hidden
abuse and neglect exercised on a powerless population. For much of pris-
on history, prisoners were subject to the unreviewable preferences of
guards and administrators. Even after the Charter, Canadian courts have
occasionally articulated doctrinal standards that fall short of jurispruden-
tial approaches developed in other areas of constitutional law.
Canadas practices of state punishment are distinct in many ways
from the American model, as is the character of Canadian judicial review.
But the case law discussed in Part II indicates that Canadian courts are
not immune to overly deferential instincts when it comes to dealing with

199 Erving Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other

Inmates (Chicago: Aldine, 1961) at xiii, 1ff.

200 I am grateful to Emma Cunliffe for pressing me to consider how a shift to a more empir-
ical mode of analysis may generate new problems, particularly in light of disparate lev-
els of access to expertise as between plaintiffs and defendants in prison litigation, and
given the ability of governments to control and impede certain research agendas. Such
concerns are only partially alleviated by the fact that the burden of proof under section
1 is on the government. These are important worries, even if we might all agree that an
evidence-based approach to prisoner rights is still preferable to modes of constitutional
review that grant automatic deference to prison officials. Notably, in both Inglis and the
upcoming Ontario litigation discussed above, much of the evidence emerges not from
prison studies but from the fields of developmental psychology and epidemiology, ex-
tended to issues arising in the penal context. Evidence may be more easily secured, and
claims more easily advanced, in these kinds of cases. This returns me to my original
claim that issues connected to the core of prison management will be the most difficult
for prisoners to litigate.

201 Dolovich, supra note 2 at 245.

CONTESTING EXPERTISE IN PRISON LAW

the administration of complex and punitive institutions with which judges
may have little knowledge or expertise, and when it comes to interpreting
and protecting the rights of little-favoured citizens. To borrow from Dolo-
vichs deference map, the decision in Shubley could be considered an ex-
ample of situation-reframing: where severe modes of confinement are re-
characterized as benign administrative techniques. The Farrell court
might make use of procedural rule-revising: suggesting that the appropri-
ate place for constitutional claims is the internal grievance system, rather
than the courts. Aziga might be an example of doctrine-constructing def-
erence: where the court writes deference right into a standard of mani-
fest violation that applies in no other area of constitutional law.
Rights are not trumps for prisoners under the Charter, but neither
should they be fully compromised by these excessively deferential judicial
moves, or by the mere fact of countervailing administrative preferences.
Judicial attention to the prison must be informed by the best knowledge
available as to how prisons can and should work. The 2010 Supreme
Court of British Columbia decision in Bacon shows that courts can contex-
tualize prisoner Charter claims by assessing expert evidence as to the bod-
ily and psychological effects of particular modes of imprisonment, and
weighing those effects against the strategies and claims of prison admin-
istrators. By contrast, the United States Supreme Court in Beard held
that where a case centres around the professional judgment of prison
managers, a plaintiff held in conditions of extraordinary deprivation can-
not even advance a claim sufficient to survive a summary motion to
strike. There are complex and multifaceted explanations for the differ-
ences in these cases, decided in two distinct nations.202 The cases from
both countries make clear that deference and expertise are intertwined in
a fashion that determines the scope and viability of prison law.
A Charter challenge to administrative segregation or lack of access to
harm reduction services for drug users asks a potentially tougher set of
questions than those present in Sauv, where the right to vote in federal
elections required, only, access to a polling station every few years, and
did not interfere with the core and daily practices of prison security. Ad-
ministrative segregation, for example, is a practice far more integral to
the daily administration of prisons, which explains in part why it has

202 Ironically, in the 1970s McCann litigation, counsel for the plaintiffs, Michael Jackson,
was inspired by expanding levels of judicial intervention in American prisons. Jackson
wanted to convince Canadian courts to follow suit. See Jackson, Prisoners of Isolation,
supra note 27 at 8284. Given the virtual revival of the hands-off doctrine in the US,
there is now little likelihood that plaintiffs counsel would point to United States law.

94 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL

been retained despite decades of serious criticism.203 Similarly, access to
hygienic injection equipment is a policy that is robustly supported from a
public health perspective, but that threatens the control ethos that de-
fines prison management. Charter challenges to these practices will ask
courts to strike down legislation or enjoin the delivery of a significant new
program, rather than granting a narrow, individualized remedy. The evi-
dence required to justify such remedies must be suitably robust and sys-
temic. The Inglis case presents the best model to date, both in terms of
the approaches taken by counsel and the courts level of rigor in conceptu-
alizing the right and adjudicating its infringement.

In Sauv, the Supreme Court of Canada indicated that it would not
simply defer to [v]ague and symbolic objectives advanced but not proven
by the prison authority.204 In this way, the Court refused the approach
taken by Justice Breyer in Beard where, as Justice Ginsburg lamented, it
sufficed for the prison to say, in our professional judgment the restriction
is warranted.205 The new wave of Canadian cases is pressing courts to
consider whether prison authorities must deliver state punishment in ac-
cordance with a world of expert knowledge as to the effects of particular
practices and the range of alternatives. Both judges and counsel must rec-
ognize that there is a structural imbalance in expertise at the outset of a
prison case. Courts must be shown that while a prison is charged with the
difficult task of confining deprived adults, this is a reason to address
rights claims carefully and expansively, rather than a reason to retreat.

203 For a fuller explanation of the reasons why efforts to reform segregation have failed, see

Jackson, The Litmus Test of Legitimacy, supra note 131.

204 Sauv, supra note 9 at para 22. The Supreme Court of Canada also recently affirmed
the importance of access to judicial review for prisoners. See Khela, supra note 77. The
Court stated that prisoners should have unfettered access to legal forums and remedies
given their vulnerability and the realities of confinement in prisons (ibid at para 44).
The Court affirmed its holding from May, supra note 32, which held that the availabil-
ity of an internal prison grievance system was not a complete, comprehensive and ex-
pert procedure that could justify a superior court declining jurisdiction to hear habeas
corpus applications (ibid at paras 5051).

205 Beard, supra note 92 at 2593, Ginsburg J, dissenting.

Contesting Expertise in Prison Law

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