WCC report recommendations on segregation align with ‘best practices,’ expert says

Meanwhile, the lawyer who represented Michael Nehass is skeptical of Yukon government’s will to act

Recommendations in the Whitehorse Correctional Centre (WCC) inspection report related to the use of segregation, including increasing transparency around when and why it’s used, are consistent with best practices, a corrections expert says.

“They’re absolutely in line with best practices and where many other jurisdictions are headed,” Howard Sapers, Ontario’s independent advisor on corrections reform and former Correctional Investigator of Canada, said in an interview Aug. 21.

Sapers was not involved in the WCC inspection, which was undertaken by independent legal advisor David Loukidelis upon the request of Yukon justice minister Tracy-Anne McPhee.

Loukidelis’s report, made public last week, contains 40 reform recommendations, 12 of which are specifically related to the WCC’s use of segregation.

The government has accepted six of those recommendations, including one stating that the corrections branch “should enhance its reporting on the use of separate confinement by publishing statistics and analyses at least quarterly, in the interests of accountability, public understanding and trust.”

The government is considering another recommendation to “provide for independent external review of decisions to place someone in secure supervision placement.”

Sapers said that openness around the use of segregation, which he described as an “ultra-restrictive form of custody,” is crucial.

“You have to start with the understanding that segregation is the most complete form of deprivation of liberty that’s allowed in law in Canada,” he said.

“… When the state is going to use that kind of authority, exercise that kind of power and control, it has to be done with transparency and accountability, so information-sharing is a critical part of that.”

The fact that the Yukon only has one correctional facility also shouldn’t hold it back from introducing rules to restrict the use of, or more firmly define, segregation, Sapers said — the real question is not whether a jurisdiction can transfer “challenging” inmates to other facilities, but what “alternative housing” is available within any given institution.

“That alternative housing can be operational … in lots of different ways,” he explained.

“One is the actual, physical structure, so what does the cell look like? What are the opportunities to have transitional units or units where you may be in very limited association with others but still highly restricted in movement? How can you better manage that with clinical supervision, better use of social workers or psychologists or psychiatrists or other clinical professionals? How can you modify the movement internally within your institution to limit the mixing of certain populations that operationally, you really should be keeping apart from one another?”

Managing all of that means that a jail will need to have a “very good” intake and assessment process as well as “adequate staffing levels to manage that kind of movement and separation,” Sapers said, adding that that kind of focus is already in place in the federal correctional system, Ontario and some U.S. jurisdictions.

Sapers was also supportive of a recommendation, accepted by the Yukon government, to limit the use of administrative segregation to situations where there are “real and imminent safety needs grounded in clear evidence.”

“(Administrative segregation) has to (have) a defined purpose, and there has to be a defined pathway out of segregation, so that’s a very good way of thinking about it, by saying, you know, ‘You can only be placed in segregation if there’s a threat and a danger, a risk, and the person can only be held in segregation until that danger, threat or risk is no longer in place,’” he said.

Nehass lawyer skeptical

Meanwhile, Anik Morrow, the lawyer that represented Michael Nehass at the tail-end of his nearly six-year-long saga with the Yukon justice system, said that while she agreed with the report and recommendations, she was skeptical of whether it would actually trigger change.

Nehass’s case raised questions about the use of segregation at the WCC, as well as the adequacy of services and supports available to First Nations inmates and inmates with mental health issues. McPhee ordered the WCC inspection shortly after the Crown withdrew charges against Nehass in the fall of 2017.

“In my view the report hits the nail on the head,” Morrow wrote in an email Aug. 17.

However, she said that the Yukon government had “aggressively” negotiated terms “far below” Loukidelis’s recommendations when reaching a systemic settlement on four human rights complaints in May, which had also touched upon the use of segregation and the treatment of mentally ill and First Nations inmates at the WCC.

“The report may end up gathering dust given a lack of cooperation from the government,” Morrow wrote. “I hope that’s not the case but the arrows are pointing in that direction.”

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

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