The law courts in Whitehorse. (Mike Thomas/Yukon News file)

WCC calls for petition alleging Charter violations to be dismissed

The Whitehorse Correctional Centre says that Darryl Sheepway’s petition should be largely dismissed

Three high-ranking officials at the Whitehorse Correctional Centre (WCC) will ask the Yukon Supreme Court to dismiss a petition from a former inmate alleging, among other things, that the jail is unofficially keeping some inmates in segregation-like conditions.

However, they concede that one policy outlining when inmates may be placed in a higher-security unit does not meet the standards set out in the Canadian Charter of Rights and Freedoms, and as such, may be declared invalid.

WCC assistant deputy superintendent Eric Henriks, superintendent Jayme Curtis and director of corrections Trisha Ratel filed an outline of arguments to the Yukon Supreme Court Feb. 15.

The document is part of a file that originally opened in February 2018, when Darryl Sheepway, who at the time had recently been convicted of second-degree murder for killing Christopher Brisson in 2015, filed a petition seeking judicial review of the decision by WCC officials to keep him in “separate and solitary confinement.”

He’s since been transferred to a federal prison. However, the petition is still active and asks the court to declare a regulation and policy related to separating inmates from general population in violation of the Charter and therefore invalid.

It also asks the court to find that segregation harms inmates both mentally and physically; that prolonged segregation makes inmates more dangerous; that placement in the jail’s secure living unit (SLU) is a form of segregation; and that placement in the SLU may amount to solitary confinement.

In their outline, the WCC officials ask the court to dismiss the majority of the petition, but do concede 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.

The policy does not provide the procedural fairness — in this case, the ability for inmates to ask for proper reviews on the decision to place them in the SLU — required under the section.

The outline argues that the policy, however, does not otherwise violate the Charter, or even other parts of Section 7. The conditions and circumstances under which Sheepway was kept in the SLU were vastly different than those outlined in a landmark case brought against the Attorney General of Canada by the British Columbia Civil Liberties Association.

The judge in that case found, among other things, that solitary confinement is locking up an inmate for 22 hours or more without meaningful human contact, and that conditions inmates face in federal prisons were solitary confinement.

At the WCC, however, even the most strict lock-up only keeps inmates confined for a maximum of 21 hours a day, the outline argues. The conditions in the SLU are also not comparable to those at federal prisoners, the outline says — inmates are allowed “unlock time” for three to six hours a day, have access to a common area with exercise equipment and unrestricted phone access, can have visitors, and, if they wish, regular access to a pastor, elders, and mental health services.

According to an affidavit from Hendriks, in Sheepway’s case in particular, it was necessary to keep him in the SLU as he had previously worked as a correctional officer at the WCC and had intimate knowledge of the jail’s workings. That knowledge posed both a risk to the security of the jail, the affidavit says, as well as to Sheepway’s safety in the form of other inmates trying to harm him.

As well, the affidavit notes, while Sheepway had unlock time alone at times, and he had regular interactions with correctional officers and was allowed visits with his mother and children outside of regular visiting hours and protocol. Sheepway also had regular meetings with a psychologist and psychiatrist and was offered, among other things, dog therapy and a 12-step program, but declined.

The outline argues that the piece of legislation targeted in Sheepway’s petition — section 21 of the Correction Regulation — does not violate the Charter because it “only prescribes the situations in which an inmate may be placed in separate confinement.” The legislation does not, the outline argues, prescribe the conditions under which inmates may or may not be kept while in separate confinement, which appear to be the main issue raised by the petition.

The authority to dictate the living conditions of inmates in separate confinement is “passed down to WCC decision makers” and is detailed in policy, according to the outline, and therefore, the legislation cannot be found in violation of the Charter because it does not contain “problematic provisions.”

The officials also question Sheepway’s standing to challenge the regulation at all, arguing that he was never kept in separate confinement.

The petition will be heard in court in May.

Contact Jackie Hong at jackie.hong@yukon-news.com

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