The constitutional legality of a man’s alleged solitary detention at the Whitehorse Correctional Centre was before the Yukon Supreme Court on Nov. 23.
David Olivier Jacques will not have to report for his weekend jail terms, but will be credited as though he had served them, as the court hears his case.
An application for judicial review of Jacques’ detention was filed by his lawyer Vincent Larochelle on Nov. 22. The document filed with the court claims that Jacques has been subject to solitary confinement in cells with limited amenities and constant artificial light while serving an intermittent sentence on weekends.
The document states that he was convicted of driving while intoxicated and one count of assaulting a police officer. According to the document, the assault offence involved no aggravating factors — it resulted from Jacques pushing the police officer’s hand away when he was presented with the alcohol screening device.
These offences led to a 45-day jail sentence to be served intermittently from Fridays at 9 p.m. to Mondays at 7 a.m. until the completion of the sentence. Jacques presented himself at the correctional centre for the first weekend of his sentence at the appointed time on Nov. 11.
The court documents state that following a medical checkup with a nurse, Jacques was placed in a cell separate from the general population of the jail without explanation. It states that the cell was in “Unit H” at the jail, an area formerly known as the Secure Living Unit.
The cell is described as sparsely furnished with only a bed, television and toilet; the document states that lights were on in the cell 24 hours a day. Jacques also had access to the living pod of the unit, an empty room with showers on Nov. 11 and 12, but the court document states that when another inmate was moved into the unit his access to the common area was alternated with the other inmate each hour.
The application for judicial review states that for the duration of the first weekend confinement, Jacques was denied basic amenities like paper, pencils and books and also was not permitted access to facilities available to other inmates including WCC’s library, gym and canteen.
Jacques and his lawyer allege that a WCC officer also overstepped their legal authority while in the process of releasing Jacques. It is claimed that an unnamed correctional officer asked where he would be going after his release at 7 a.m. on Nov. 14 — Jacques replied that it was none of the officer’s business and the officer then threatened to leave him in the isolation cell.
“The officer who made such a demand and threat had absolutely no legal authority to do so,” the application for judicial review reads.
In Jacques and his lawyer’s account of events, his second weekend at WCC saw more of the same confinement, beginning with more than three hours in the arrest processing unit (APU) without a bed or toilet. The arrest processing unit is used to house RCMP prisoners rather than WCC inmates. The application notes that Jacques tested positive for COVID-19 when he arrived at the jail for his second weekend behind bars.
It is claimed that while Jacques was in the APU, he requested food and a blanket or sweater, with both requests acknowledged but not fulfilled. Jacques claims he did not receive a blanket or sweater for the whole weekend.
Jacques claims he was moved back to a cell in the same solitary confinement unit as the previous weekend. He says he was kept in his cell in the otherwise empty unit until he was let out to take a shower on the evening before his release. He also claims he was not provided with necessities like toilet paper, hygiene products or a change of clothes until that evening and was never visited by a medical professional.
He also claims that he slept under the bed as a way of escaping a neon light that he claims pointed directly at the bed and that correctional officers woke him throughout the night by shining flashlights in his eyes.
The application states Jacques suffered significant physical, emotional and psychological suffering and also had a preexisting spinal injury aggravated by the sleeping conditions he faced at WCC.
A temporary absence from this weekend’s jail term was approved prior to the application for judicial review. The absence will remain in effect until the legality of Jacques’ detention is settled by the courts.
During the Nov. 23 court hearing, Larochelle, government lawyer David Christie and presiding judge Edith Campbell discussed a timeline for disclosure of evidence and the hearing of the application.
Larochelle said his client’s experience at WCC reflects the correctional facility’s failure to change its practices, as ordered by past legislation and court decisions.
Larochelle argued for quick disclosure of WCC’s records relating to the case. Larochelle cited concerns that the correctional centre might alter records. Christie called the suggestion that WCC staff might doctor documents a baseless accusation but agreed to send Larochelle a list of the documents as soon as possible.
“There’s people with integrity who work at that facility,” Christie said.
At Larochelle’s request, Campbell also ordered that WCC disclose its policies used to make decisions about where to house weekend inmates and policies regarding inmates with COVID-19.
Larochelle said the judge’s ruling in this matter may have implications for many more people than Jacques. He called WCC’s use of solitary confinement for weekend inmates illegal and unconstitutional. On Nov. 23, he told the court that the findings in this case may apply to hundreds of Yukoners.
Addressing the court, Lacrochelle said that he doesn’t think anyone at the correctional facility actually has evil intentions but said he believes the system there creates conditions that allow them to use solitary confinement inappropriately.
A date in mid-December was set for the application to be heard in full and ruled on by the judge.
Contact Jim Elliot at jim.elliot@yukon-news.com