The territory’s Department of Justice says the Yukon Human Rights Commission doesn’t have the authority to investigate human rights complaints inside the Whitehorse Correctional Centre.
Documents make it clear that multiple people have filed human rights complaints regarding their time in jail.
Neither side is saying exactly how many complaints there are.
The issue of human rights at Yukon’s only jail came to the public’s attention earlier this year when an inmate filed a human rights complaint.
Michael Nehass was brought naked to a video court appearance, shackled and pinned to the floor by jail guards in full riot gear.
His father has since filed a human rights complaint, alleging that his son has been kept in solitary confinement for 28 months.
The Department of Justice denies that claim.
Nehass has since been found unfit to stand trial.
But human rights complaints relating to the jail are not within the jurisdiction of the Human Rights Commission, according to Yukon government lawyers.
“The government respondent is taking the position that these complaints do not fall within the jurisdiction of the YHRC (Yukon Human Rights Commission) as set out in the Human Rights Act because they were either considered in a different review process or there were available other review processes or procedures that have not been exhausted,” according to a June letter.
Section 20 of the Yukon Human Rights Act lists nine exceptions to when the commission can investigate.
These include if “the complainant has not exhausted grievance or review procedures which are otherwise reasonably available or procedures provided for under another act,” or if “the substance of the complaint has already been dealt with in another proceeding.”
“The Department of Justice has raised this issue with the YHRC in the context of complaints brought by inmates who can access the process provided by the Investigations Standards Office (ISO), an independent office that undertakes investigations of complaints made by inmates and reviews of inmate disciplinary appeals pursuant to the Corrections Act,” Caitlin Kerwin, Justice’s acting director of policy and planning, said in a written statement to the News.
“Inmates with complaints or concerns about their supervision or conditions of custody in a correctional centre have a right to file a complaint. Complaints are dealt with seriously and a system is in place to safeguard and remedy inmate complaints.”
A person who wants to appeal a decision by the ISO can go to the territory’s ombudsman or can go to court to ask for a judicial review, Kerwin said, but not to the Human Rights Commission.
Julie Jai, the acting director of human rights for the commission, says her office disagrees.
“Section 20 of the act provides a series of exceptions to the general rule that complaints are investigated. The overall purpose is to more effectively and efficiently manage complaints,” she said.
“The goal is not to exclude everything for which there is an alternative process. Human rights legislation is designed to provide an accessible process, and can provide remedies not available through other processes.”
She pointed out that the act requires that the alternative process be “reasonably available.”
“For example, if it requires getting a lawyer and going to court, that’s probably not something that’s reasonably available to the average person, including to an inmate at WCC.”
Rather than making blanket statements that complaints at the jail can’t be investigated by the commission, Jai said it’s important to look at each case individually and “keep in mind the overall goal of human rights legislation, which is to provide an accessible, remedial process to redress human rights violations.”
Meanwhile, the Auditor General’s office is conducting an audit of correctional services in the Yukon.
Officials there say they expect to present their report next winter, but no date has been set yet.
As for whether the conflicting opinions over jurisdiction could end up in front of a judge, Jai would only say that the commission is “currently exploring the next steps.”
Just because there are other processes, doesn’t mean that all processes are created equal, Jai said.
“There are other processes available, but unless they can provide the same remedies and deal with human rights issues, they shouldn’t preclude going to the human rights commission.”
In most cases, complaints to the ombudsperson and any recommendations by the office are confidential.
The ombudsperson can make recommendations, but those recommendations are not legally binding.
Similarly, complaints to the ISO are also confidential.
Neither Jai nor Justice will say whether the inmates who have made human rights complaints first tried to go through the jail’s internal complaint system.
According to the department, the ISO can respond to a complaint by an inmate by either confirming the decision by the jail, directing the person in charge to reconsider their decision, or substituting ISO’s decision in its place, said department spokesperson Lily Gontard.
When it comes to questions around inmate discipline, The ISO can confirm the decision, confirm the decision and change the penalty, rescind the decision or send it back for a rehearing.
An inmate can release his or her personal information to other people. ISO will only release an inmate’s personal information with written consent from the inmate, she said.
Things are different with a human rights complaint.
If a human rights complaint makes it all the way to the human rights board of adjudication, the hearing, and any testimony given by witnesses, is public.
Unlike the ombudsman, who can only make recommendations, the board of adjudication can order remedies like financial compensation or systematic changes.
That could mean things like ordering the WCC to limit the use of segregation or to improve mental health services, Jai said.
Cases can also be voluntarily settled before it reaches a board hearing.
A voluntary settlement can be made public if the parties choose to and a board of adjudication decision is public as a general rule.
While the Department of Justice says inmates can turn to the ombudsman’s office for help, the territory’s ombudsman Diane McLeod-McKay said her office may refer people to the human rights commission.
“Essentially, if someone comes to us and they have a human rights kind of complaint, we would generally suggest that they actually go and talk to Human Rights about that because it may be a more appropriate venue to look at a human rights issue,” she said.
For a while, the ISO’s own website said the office didn’t have the authority to investigate human rights complaints.
Gontard confirmed that “for a time” human rights complaints were listed under the things Yukon ISO did not do. Gontard said the original website was based on the B.C. ISO. “Human Rights Complaints” was deleted from the page after staff realized that this didn’t apply in the Yukon, she said.
“Despite the fact that the original webpage with inaccurate information was deleted from the Government of Yukon website, a Google search still brought up that original page, even though there was a current and accurate ISO webpage on the Government of Yukon website,” she said.
“We were alerted to this in June 2014 and deleted that webpage from the Internet at that time. ISO does accept human rights complaints.”
Contact Ashley Joannou at ashleyj@yukon-news.com