Contesting Unmodulated Deprivation: Sauvé v Canada and the Normative Limits of Punishment

Despite a pressing need for judicial guidance on the legalities of administrative segregation, Canadian courts have yet to outline clear, comprehensive principles by which to assess its deployment. While some courts have rebuked the Correctional Service of Canada for the improper use of administrative segregation in specific cases, the regulation of the practice more broadly has proven elusive. This article turns to the Supreme Court of Canada’s prisoner voting rights decision in Sauvé v Canada for guidance in this regard. Since its release in 2002, Sauvé has been applied largely in cases involving political rights, and rarely in cases involving conditions of confinement. The recent trial level decision in Bacon v Surrey Pretrial Services Centre, however, suggests that Sauvé’s significance extends beyond the voting rights context. Building on Bacon, this article posits that Sauvé outlines a “statement of constitutional and carceral theory” that can be cited to scrutinize the law and practice of administrative segregation. It illustrates this claim by analyzing the Management Protocol, a corrections protocol in effect between 2003-2011 that authorized prison wardens to subject maximum-security women to an extreme solitary confinement regime. The Protocol was designed and administered in highly objectionable ways, revealing a clear gap between the progressive ideals of prisoner rights protection as articulated in Sauvé, and the record of their enforcement in the daily administration of corrections. Applying Sauvé to the Management Protocol, this article highlights the decision’s potential to critique and contest the improper use of administrative segregation when it results in unmodulated rights deprivations