The Yukon Human Rights Commission says it’s prepared to move forward with human rights complaints at the jail - with or without the Department of Justice’s co-operation.
In a lengthy letter obtained by the News from an anonymous source, the commission’s lawyer accuses the government of taking a stance that “turns Supreme Court of Canada jurisprudence with respect to the interpretation of human rights law on its head.”
Multiple human rights complaints have been filed by inmates at the Whitehorse Correctional Centre.
Very few details of the specific complaints have been made public, but government lawyers have insisted the human rights commission doesn’t have the authority to investigate them.
They say that since the jail has its own investigative body - the Investigations and Standards office, or ISO - Yukon human rights law prevents the commission from investigating.
If an inmate has a problem with an ISO decision, they can go to court, they say.
The government has provided very little to support its stance, said commission lawyer Colleen Harrington in the letter.
“You say that YG’s position is based upon a “plain reading” of the Human Rights Act and you provide no case law to support this view that human rights law in Yukon should be so drastically diminished as compared to everywhere else in Canada,” she writes.
Meanwhile, the Yukon Department of Justice has gone silent.
When the News first broke the story last month, the department provided a written statement. Since then Justice Minister Mike Nixon has commented twice to the paper.
Now, spokesperson Caitlin Kerwin says “it is the longstanding practice of the Department of Justice not to comment publicly on discussions between the department and the Yukon Human Rights Commission concerning human rights complaints.”
Changes in 2009 to the Yukon Human Rights Act say the commission shall investigate complaints unless “the complainant has not exhausted grievance or review procedures which are otherwise reasonably available” or “the substance of the complaint has already been dealt with in another proceeding.”
Harrington argues it’s up to the commission to make the decision whether to investigate, not the government.
She relies on pages of case law, including federal cases, that deal with situations in other jurisdictions.
Though other laws are worded slightly differently, that doesn’t change things, Harrington said.
The Supreme Court of Canada has repeatedly rejected narrow interpretations of human rights law, she said.
In a 1987 case, the court noted that while the words of human rights legislation should be given their plain meaning, “We should not search for ways and means to minimize those rights and to enfeeble their proper impact.”
Arguing “that the mere existence of the ISO, the ombudsman, and the courts, even if they have not been accessed by inmates, ousts the jurisdiction of the commission, would have the absurd result of leaving inmates without a forum in which to air their allegations of discrimination, contrary to the intention of the legislature that all persons be able to access human rights legislation,” Harrington writes.
The idea that an inmate could go to the courts with a complaint “demonstrates an alarming lack of understanding of the financial situation of most inmates at WCC, as well as the services offered by Legal Aid, which do not include prison law,” she said.
She questions whether the ISO is qualified to answer legal questions or adjudicate disputes.
“The commission has seen letters written by the ISO to inmates in response to their complaints that demonstrate an alarming lack of understanding of basic legal principles,” she writes.
It would appear from Harrington’s letter that the government’s position on this issue is a recent change.
She claims to have a letter from 2011 in which a senior ISO investigator tells an inmate who raised human rights concerns that ISO “is not a court of competent jurisdiction to review either Charter challenges or claimed violations of the Human Rights Act.”
Meanwhile, the commission says it has a duty to act. So the cases move forward.
According to the letter, investigators will be taking the information they’ve gathered to a panel of commission members near the end of October.
Those members - who have all been appointed by the government - will decide whether there is enough information to send the cases to a human rights board of adjudication.
If the government has a problem with that, they are welcome to go to court, Harrington writes.
It’s the board of adjudication that would hear the evidence and decide whether or not the government has broken the law.
There is no way to force the government to defend itself. Board hearings have been held in the past without a defendant present.
But the board is able to compel people to testify and to order documents be presented.
Any orders that the board might make, whether that’s financial compensation or changes to the system, are enforceable even if the government chooses not to show up.
Contact Ashley Joannou at
ashleyj@yukon-news.com