Exterior of the Whitehorse Correctional Centre. A judge has ruled that the jail did not have legal grounds to create its secure living unit, where inmates are held in separate confinement under a different name. (Joel Krahn/Yukon News file)

WCC did not have authority to create secure living unit, judge finds

Justice Ron Veale’s decision on petition from former WCC inmate Darryl Sheepway was released Sept. 19

The Whitehorse Correctional Centre (WCC) did not have the legal foundation to create a unit where inmates are held in separate confinement under a different name, a Yukon Supreme Court judge has ruled.

In a 40-page decision released Sept. 19, Justice Ron Veale found that the jail did not have the statutory authority to create the secure living unit (SLU) and cannot keep inmates in the SLU without following regulations ensuring procedural fairness for inmates in separate confinement.

He also found that the WCC’s policies and procedures violated sections of the Corrections Act and Corrections Regulation.

The jail is being given nine months to address the issues.

The decision is the result of a petition filed by former WCC inmate Darryl Sheepway, who was incarcerated at the jail from Aug. 20, 2016 to May 8, 2018, spending the majority of his time there in the SLU.

Sheepway was arrested for the 2015 murder of Christopher Brisson in Whitehorse and was eventually found guilty of second-degree murder. He was at the jail from the time of his arrest until after he was sentenced and sent to a federal penitentiary.

The SLU, which Veale wrote could be described as a “prison within a prison,” is located on the men’s side of the WCC. The unit mirrors the segregation unit, save for the fact that SLU cells come equipped with a small television. As well, inmates in the segregation unit get a maximum of two hours outside their cells with no opportunity to interact with other inmates, while inmates in the SLU can get up to six with the possibility of being on “unlock” with others.

Placement in the SLU, Veale found, was consistent with being placed in “separate confinement,” something the Yukon government had disputed in court.

Under the Corrections Act, separate confinement and segregation are supposed to be set out in regulations. The Corrections Regulation, among other things, lays out procedural safeguards for inmates placed in separate confinement, such as providing an inmate with written reasons for his separate confinement and allowing an inmate to give submissions before decisions about his confinement status are made.

However, the WCC incorrectly created the SLU under another section of the act that allows for the “person in charge” at the WCC to establish policy or rules to ensure the safe operation of the jail, Veale wrote.

By creating the SLU under that section and classifying it as its own entity, WCC was able to bypass the procedural safeguards set out in the regulations because, on paper, the unit was called the SLU, not “separate confinement.”

“The lack of definitional clarity, or what I call the label trap, has bedevilled the laws of incarceration,” Veale wrote. “I conclude that the Secure Living Unit is separate confinement with a different label.”

Sheepway, in his time in the SLU, was never given the rights to procedural fairness laid out in the regulations surrounding inmates in separate confinement.

Sheepway’s lawyer, Vincent Larochelle, said he hopes the decision will “light a fire on the government’s side.”

“I think the good news is that … the decision throws the issue into the political arena, just like the Loukidelis report,” he said, referring to a report containing 40 recommendations penned by legal expert David Loukidelis following an inspection of the jail.

“I think the difference now is that, well, they have nine months to figure it out and timelines are always good when one is expecting political action, because if they can’t sort it out in nine months’ time, then the secure living unit is no longer a legal concept.”

That it’s too late for Sheepway to personally benefit from the decision doesn’t matter, Larochelle said.

“Throughout the procedures, Mr. Sheepway has never made it about him, and that’s where the government sometimes missed the point … It was not about whether he should have been in the secure living unit or not,” Larochelle said.

“It was about the process that allowed that to happen … I’m confident he’ll be extremely pleased with the result because his mind has always been about, ‘No one should have to go through this process. No one else should have to go through this process.’”

Yukon assistant deputy minister of justice Allan Lucier, whose portfolio includes corrections, said in an interview the morning of Sept. 20 that, at this point, he has “no indication” that the government will be either appealing the decision or asking for an extension for implementation.

The justice department is “actively reviewing the document,” he said, noting that it has already been actively working on the recommendations laid out in the Loukidelis report, some of which he believes will also address portions of the decision. The department will also begin “turning our mind to” the issue of legislative authority in creating new units at the jail.

“I come back to the fact that we want to work within the law. We want to work within the provisions provided in the act, and so the guidance provided by Justice Veale … really help us get in that direction,” he said.

“We hold the interests of the inmate at the highest regard. The duty of care is an incredible important element and one that we don’t want to be seen but doing anything less than fulfilling all those obligations … Certainly, all of it we find well within the working scope of the work that lies ahead of us in reforming corrections here in Yukon.”

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

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