Yukon government should remove WCC’s hospital status, says Supreme Court judge

‘Calling a prison a hospital does not change the nature of the WCC from a penal environment’

The senior Yukon judge who presided over the final portion of Michael Nehass’ legal saga is “strongly” recommending the territorial government revoke the Whitehorse Correctional Centre’s designation as a hospital.

“While the designation of WCC as a hospital suggests that the WCC has both the capacity and staff to manage and, if required, medically treat inmates who are mentally ill, that is manifestly not the case,” Supreme Court Justice Ronald Veale wrote in his Sept. 29 memorandum, describing Nehass’ “nearly six-year odyssey” within the Yukon justice system as a “sad state of affairs.”

“I strongly recommend that the Yukon government revoke the designation of the WCC as a hospital.”

Under the Criminal Code, the minister of health and social services can order institutions to “be designated as hospitals for the custody, treatment or assessment of an accused.” The WCC was designated a hospital in 1993.

The memorandum comes about a month after Crown prosecutor Eric Marcoux entered a surprise Crown stay in the Nehass case which, over the years, raised concerns about the WCC’s treatment of inmates with mental health issues and First Nations inmates as well as its use of solitary confinement (the Department of Justice denies that “solitary confinement” is used at the WCC, instead calling it “separate confinement” or “segregation”). The stay essentially halted all court proceedings against Nehass in relation to charges he was facing in an alleged 2011 knifepoint assault on a woman in Watson Lake, but also blocked his lawyer, Anik Morrow, from further pursuing an application for a judicial stay in the case. Had Morrow’s application gone forward, it would have allowed her to present evidence to the court that Nehass’ Charter rights were violated at the WCC.

In the memorandum, Veale wrote that he was “not trying to lay blame for this at the feet of the WCC,” noting that during previous proceedings in the Nehass case, Yukon’s director of corrections, Patricia Ratel, confirmed that the WCC “is in no way, means, shape or form a hospital.” Ratel acknowledged that Nehass had “serious mental health problems that could not be addressed by the WCC” and “believed for a long time” that Nehass needed to be transferred outside of the Yukon for treatment.

Veale also noted that the WCC’s only resident psychiatrist, Dr. Armando Heredia, documented Nehass’ mental health deterioration and recommended a transfer to a forensic mental health facility, reporting that a bed was available at one in Ontario.

However, Nehass “remained in custody and segregation while a transfer to a mental health facility was considered as early as December 2013 but never acted on,” Veale wrote, and he instead spent “lengthy periods of time in either administrative or punitive segregation and isolated from other inmates” due to concerns about his behaviour.

“The significant and outstanding concern for the criminal justice system, society and Mr. Nehass is the fact that he remained unconnected with necessary mental health services, despite being found by doctors to be psychotic and delusional during the four years and eleven months he spent in pre-trial custody in the WCC,” Veale wrote.

The judge added that Nehass’ case is not the first to illustrate that the WCC is incapable of providing adequate treatment to inmates with mental health issues, citing a Supreme Court decision from 2000 and a Territorial Court decision from 2004 that were both critical of the WCC’s “hospital” designation.

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

In an email to the News, Morrow wrote she was “pleased” to see Veale calling on the government to remove the WCC’s designation as a hospital, something she has also advocated for.

“I sense some frustration in the memo.… In my view the memo is geared to moving forward, to accepting what is obvious, and to encouraging a frank assessment of what took place to support discussion capable of informing and guiding necessary change,” Morrow wrote. “It is simply the right thing to do.”

The Yukon government did not respond to requests for comment. However, in the Legislative Assembly Oct. 3, Justice Minister Tracy-Anne McPhee, in response to questions from NDP Leader Liz Hanson about whether she would be acting on Veale’s memo, reiterated that she has ordered an inspection into the WCC.

“As I have noted, we will be seeking the information necessary to make that decision — as well as others, quite frankly — from the inspection,” McPhee said, adding that work “began immediately” after she announced the inspection Sept. 19 to find a third-party inspector and to lay out the terms of reference for the inspection.

“Quite frankly, the minister doesn’t need to wait for a review or an inspection to take action,” Hanson responded.

Nehass’ lawyer agreed.

“(I’m) getting the impression Minister McPhee isn’t getting properly briefed and has no idea what the evidence on record is,” Morrow said in another email. “When the Director of Corrections testifies before a court and says the WCC can’t meet the needs of mentally ill persons in custody, (it’s) called an admission of a fact, not an allegation.

“Whitehorse is fairly small,” she continued. “If the government had cared, seems to me they could have sent one assistant or an aide down to the courthouse for a few hours to hear it. They would be far further ahead.

“Someone should tell them they can order the transcript at very least. (It’s a lot) cheaper than another report.”

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

Michael NehassYukon courts