The Yukon Supreme Court heard a petition this week seeking to have a regulation governing the separate confinement of inmates at the Whitehorse Correctional Centre (WCC) struck down as unconstitutional.
The Yukon government, however, said that the inmate wasn’t actually ever in separate confinement, and that the case didn’t have any evidence to stand on.
Originally filed by Darryl Sheepway in February 2018, the petition initially sought a judicial review of the decision to keep Sheepway in the jail’s secure living unit (SLU), a seven-cell room that’s more restrictive than general population.
The petition, since amended, claims that the SLU is essentially segregation under a different name, with no meaningful way for inmates to participate in the decision to place them in the unit and keep them there.
Sheepway, however, who had been convicted of second-degree murder in January 2018 for killing Christopher Brisson in 2015, was sentenced and sent away to a federal penitentiary before the petition could be heard.
The petition now seeks a declaration from the Yukon Supreme Court that Reg. 21 of the Corrections Regulations, which governs the use of long-term “separate confinement” at the jail, is in violation of the Charter and of no force and effect.
The Yukon government has already conceded that policy B 4.6 of the Adult Custody Policy Manual, which deals with when inmates can be placed in the SLU, is in violation of section 7 of the Charter, which guarantees protection of life, liberty and security of the person.
Although Sheepway is the petitioner, lawyer Vincent Larochelle emphasized to Justice Ron Veale on May 1 and 2, that the case is not about him, but the SLU.
Sheepway’s experiences serve as an example of how the unit “runs afoul” of three key points, Larochelle said — that the separate confinement of an inmate needs to be explicitly authorized by the law; that the conditions under which an inmate is separately confined must be overseen by an external, independent, fair and effective review process; and that the confinement cannot be of indefinite duration.
Currently, Reg. 21 only states that a “person in charge” is responsible for making the decision to keep an inmate separately confined, Larochelle said, with no limit on how long that confinement can last and providing no way for an inmate to appeal the person’s decisions.
In Sheepway’s case, Larochelle argued, he spent all but a few weeks from the time of his arrest in August 2016 until his transfer to a prison in the SLU. Until he filed his petition, Larochelle said, Sheepway was kept in conditions that mirrored segregation, with limited to no meaningful social interactions with anyone and little to do on the unit.
The only differences between the SLU and the jail’s separate confinement unit, which officials have acknowledged as segregation, is that inmates in the SLU get a television in their cells, a table and chairs in the common area, and, depending on inmate compatibility, a handful of hours more on “unlock” time, Larochelle said.
At no point was he, or anyone else, given the chance to participate in reviews of his placement, Larochelle said, which was based on testimony from manager of corrections Eric Hendriks.
The procedural safeguards afforded to a first-time shoplifter should be afforded to someone who was in Sheepway’s position, Larochelle said, who was kept in a jail within a jail for 18 months.
Larochelle also accused the WCC and Yukon government of playing semantics and relying on the names of units to make its arguments rather than considering the actual conditions inmates live under.
At one point, he suggested that the WCC could create a “rainbows and puppies room,” but if the jail keeps an inmate in there, alone, for 21 hours a day, that would still be separate confinement, which is the case with the SLU.
The court also heard testimony from Sheepway himself, who attended the proceedings via video call from a prison in British Columbia and spoke about feeling “despair and hopelessness” during his time in the SLU.
Yukon government lawyer Karen Wenckebach however, argued that a placement in the SLU is not analogous to segregation. While conditions in the SLU are more restrictive than in general population, Wenckebach acknowledged, SLU inmates are typically allowed out of their cells for three to six hours a day and have interactions with other inmates.
Sheepway was also offered, or had available, a variety of programming such as dog therapy and Yukon College courses, Wenckebach said, regularly saw a psychiatrist and psychologist in-person, and was given the opportunities to see a pastor or an elder.
She also questioned Sheepway’s assertion that, between August 2016 and February 2018, he only had interactions with one other inmate, suggesting that, in fact, he had also been on unlock time with two others.
Both Hendriks and Wenckebach noted that the reason for Sheepway’s placement in SLU never changed throughout his time at the WCC — he had been a former correctional officer at the facility, and as such, posed a security risk to the jail and a safety risk to both himself and others.
As well, Wenckebach said, it’s unreasonable to assume that only two conditions can exist at the WCC — general population and segregation, which, according to Wenckebach, takes place only the the separate confinement unit.
The Corrections Act gives WCC the power to create different confinement situations for inmates based on their needs, she said, and the SLU allows for a place to keep inmates who need more supervision or care than what’s provided in general population but not the heavy restrictions of the separate confinement unit.
In a somewhat heated moment, Wenckebach argued that Sheepway had not provided any evidence at all in regards to separate confinement — only the SLU — and therefore, the court did not have any evidence to base its examination of Reg. 21 on.
Wenckebach conceded that inmates should be allowed to make submissions when it comes to SLU placements and that the WCC should clarify who the person in charge of making decisions is.
She otherwise asked for the petition to be dismissed.
The proceedings marked the first time that the Yukon government has admitted to the use of solitary confinement at the WCC.
In describing the differences between the separate confinement unit and SLU, both Hendriks and Wenckebach said that in the separate confinement unit, inmates may be confined in their cells for up to 22 hours a day and, when out, do not have the chance to interact with other inmates.
The United Nation’s Nelson Mandela Rules, which regard the treatment of prisoners, define solitary confinement as the practice of confining an inmate for 22 or more hours a day without meaningful human contact, a definition Wenckebach acknowledged.
Larochelle, in his reply, said that that admission alone was enough to strike down Reg. 21.
Veale, who described the case before him as “complex,” reserved his decision.
Contact Jackie Hong at firstname.lastname@example.org