Unlawfully hospitalized behind bars

Few, if any, jail staff could perform open-heart surgery or even set a broken leg, but they run a hospital. At least on paper.

Few, if any, jail staff could perform open-heart surgery or even set a broken leg, but they run a hospital.

At least on paper.

In 1993, the Yukon Party designated Whitehorse Correctional Centre a hospital “for custody, treatment or assessment of an accused,” pursuant to section 672.1 of the criminal code.

This allows it to hold mentally ill patients in custody, even those without charges.

And that’s what happened to Veronica Germaine.

More than a year ago, the 32-year-old Northern Tutchone woman’s charges were dropped — she was deemed not criminally responsible due to mental disorders.

But Germaine remains in jail.

There are no beds in the territory available in “an appropriate, accredited, psychiatric hospital facility,” according to the Yukon Review Board, which is responsible for Germaine’s placement.

So she was ordered to the jail “in its normal capacity as a designated hospital,” according to court documents.

Germaine could have been sent to an appropriate facility Outside, but did not want to be separated from her friends, family and First Nation heritage.

Her decision to stay in the Yukon was supported by the First Nation of Na-cho Nyak Dun.

“The significance and importance of treating Germaine’s disorder in the Yukon,” was also recognized by the review board, according to court documents.

But keeping her in jail violates the woman’s civil rights, say lawyers.

“I think that environment might actually be very inflammatory and irritating and frustrating for her — but it is what I have to offer,” said clinical manager of mental health services Marie Fast, in the documents.

“I don’t think it is the best place,” said psychiatrist Dr. Armando Heredia in his report.

“I don’t think it’s the appropriate or adequate place, but it’s the place that would be available for her; and I believe she would still be receiving services while she was there.”

But Germaine has had to fight for services.

In September, she finally started attending Yukon College.

But the jail tried to take away two weeks of Germaine’s schooling to punish her for an altercation with another inmate.

And last week, when her chaperone fell ill, she wasn’t able to attend school for two days.

“I’m used to disappointments,” said Germaine, after preparing for two days for classes and changing into street clothes, only to learn her chaperone wasn’t coming.

Probation didn’t even bother to call the jail to let Germaine know, she said, choked up.

“Here I am trying my best, and they say, ‘Oh well, we don’t have anyone (to take you to school) — it’s like I don’t really matter.

“It makes me feel like giving up.”

“The way the jail works, it’s a jail,” integrated offender manager Clara Northcott said in a report to the review board contained within court documents.

“When she’s in there she’s treated like an inmate.”

So she’s subjected to the same disciplinary process as other inmates, according to a court submission by Crown attorney David McWhinnie.

“That can’t be consistent with Parliament’s intent of ‘least onerous, least restrictive,’ that the default position becomes remand in a jail — which is quite clearly a jail — because there isn’t any other place,” wrote McWhinnie.

It’s not “the least onerous, least restrictive order, which is what ought to have been imposed,” said Germaine’s lawyer, David Christie, in the documents.

It is just “the most convenient disposition for the review board and the government,” he said.

It is a capacity issue, said Health spokesperson Pat Living.

“We can’t create a facility for one individual.”

Placing Germaine at the hospital wouldn’t work because it’s not a secure facility, and “you can’t just have a nurse (dealing with her), you need someone specially trained,” added Living.

But jail guards aren’t trained to deal with mental health patients.

“I had zero training in psychiatric work,” said past jail corrections officer Cindy Chaisson.

Corrections officers get three days of intense training and part of that is special management training for inmates who need to be segregated for medical or mental health reasons, said Justice spokesperson Chris Beacom.

“You’re always a suspect in jail,” said Germaine, who is forced to squat and cough everyday when she returns from college, to see if she is hiding contraband in her body cavities.

Always stressed and on guard, Germaine is finding it hard to heal at the correctional centre, she said.

“You’re always a target, and if you screw up, they say, ‘See, I knew you’d screw up.’

“I’m treated like an animal when I’m trying to be a human being and get healthy.”

The explicit goal of Germaine’s disposition is “community reintegration,” according to court documents.

But it “fails to achieve this goal because Whitehorse Correctional Centre serves to incapacitate (Germaine),” wrote Christie.

“It is an understatement to say that this facility is less than appropriate to serve as a hospital for persons who are found not criminally responsible by reasons of a mental disorder,” ruled Yukon Supreme Court Justice Ron Veale, relying on review board comments, in an earlier case.

“Calling a prison a hospital does not change the nature of the facility from a penal environment to a therapeutic environment,” wrote Veale.

“It has been made abundantly clear by the board that the Whitehorse Correctional Centre, in its capacity as a ‘hospital,’ does not provide any appropriate therapeutic treatment services worthy of the designation of a hospital.”

Holding Germaine at the jail violates the Charter of Human Rights and Freedoms, added Christie, citing sections 7, 9 and 12.

Germaine is “being jailed despite the fact she is not a criminal,” he said.

Designating the jail a hospital is also in contravention of the United Nations standard minimum rules for the treatment of prisoners, he said.

“Despite being found not criminally responsible because she had a mental disorder, (Germaine) was sent to the same correctional institution that she would have gone to if she had been found morally culpable of her crimes and been sentenced in the regular court process,” concluded Christie in the court documents.

Germaine is being unlawfully detained, said East Coast lawyer Jenny Reid, who used to practice in the Yukon and is still called to the bar here.

There is no way the jail should be designated a hospital.

“There is nothing therapeutic about it,” she said, offering to fly up and work for Germaine for free, if someone paid her airfare.

“They want to reintegrate me and rehabilitate me, but I’m just being set up for a fall, because I’m in jail with criminals,” said Germaine.

“I’m not treated like a human being with feelings.”

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