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EDITORIAL: Yes, even killers deserve due process

No one benefits when the Yukon government is focused on denying it uses solitary confinement

Yukoners who don’t spend a lot of time focused on the justice system here likely missed a really important concession made by the Yukon government in court earlier this month.

The territory finally acknowledged that the Whitehorse Correctional Centre (WCC) uses solitary confinement.

Up until this point, government flack have avoided talking about solitary confinement in the territory, at one point even demanding a correction when we dared to use that phrase in the newspaper. (We told them to kick rocks, for what it’s worth.)

Instead, the purveyors of government talking points have always done verbal gymnastics to avoid the phrase, calling cells where inmates are kept away from the general population “segregation” or the “secure living unit.”

Don’t let the names fool you, the two units are essentially the same thing, with the exception of televisions being available in the secure living unit.

In both cases inmates can be kept locked in their cell, or left unlocked but alone in the unit, without any meaningful human contact, for an extended period of time.

In some cases, the Yukon court heard, inmates may be confined in their cells for up to 22 hours a day.

That’s the United Nation’s definition of solitary confinement. A defence lawyer says so, the government lawyers say so, now the rest of the government needs to start saying so in order for real change to happen.

The admission came during the hearing brought forward by Darryl Sheepway who is seeking to have regulations governing the separate confinement of inmates at the WCC struck down as unconstitutional.

Sheepway says he was kept in the WCC’s secure living unit for 18 months before he was eventually convicted of murder and sent to a federal prison Outside.

WCC officials may have had good reasons to keep Sheepway, a former guard, away from the rest of the inmates but that doesn’t mean they should be allowed to lock him up there without due process.

The WCC’s own policies say that the decision to keep someone separate is supposed to be reviewed. Based on what was testified to in court, it appears that Sheepway’s reviews were little more than rubber-stamping the decision to keep him in the same place.

In the Yukon there’s no limit on how long separate confinement can last and, Sheepway’s lawyer argued, no way for an inmate to truly appeal the jail’s decisions. That cannot continue.

The mental and emotional damage that can be caused by extended time in solitary confinement is well documented.

Confinement away from interaction with other people, whatever name it’s given, cannot be for an indefinite duration and must be a last resort.

The conditions under which an inmate is separately confined must be overseen by an external, independent, review process.

Yes readers, (who we can already hear screaming for our blood), even those accused of killing another human being deserve the appropriate due process.

The jail’s current Investigations and Standards Office — which is supposed to be a place where the jail’s decisions can be reviewed — does not appear to be enough. When Sheepway complained about his situation to those officials he testified that little changed, beyond being provided with additional paperwork.

The standards office is funded within the Yukon Department of Justice, making it hard to appear independent. Though the office can, in theory, step in on individual cases, when it comes to systemic issues, like the jail’s overall use of solitary confinement, the office can only make recommendations, not binding orders.

The office has also been previously criticized by the Yukon Human Rights Commission for appearing to not have a clear understanding of the law.

The federal government is currently fighting its own battle over the use of solitary, and much like in the Yukon, the federal Liberals are being accused of playing semantics with wording as opposed to actually implementing change.

Public Safety Minister Ralph Goodale has been busy disputing claims that a bill to end solitary confinement in Canada’s federal prisons will merely maintain the practice under a different name.

Goodale promises that the federal government’s policy will be more humane if Bill C-83 is passed.

Currently, he said, inmates are confined to their cells for up to 22 hours a day “with little or nothing in the way of meaningful human contact or rehabilitative programming.” (Essentially what the Yukon is being accused of as we speak.)

Under the legislation, if it is passed, Goodale said inmates will now get twice as much time out of their cells and at least two hours of meaningful human contact every day. As well, they will have access to mental-health care, rehabilitation programs and other intervention services not available to segregated prisoners now.

Independent Sen. Kim Pate, a former prisoners’ rights advocate with the Canadian Association of Elizabeth Fry Societies, has called the proposed changes “a cynical exercise” and argued that it would actually make it easier to put an inmate in segregation and to leave them there.

Goodale — obviously — disagrees. Currently, in federal prisons, the decision to put a prisoner in segregation is up to the warden, and though decisions can be reviewed, any recommendations are only suggestions and don’t have to be followed.

The federal bill would create an external, independent oversight body for federal prisions empowered to monitor the use of segregation and make binding orders that must be followed.

That is a change to federal prisons that the Yukon should follow for our territorial jail. A new territorial separate confinement oversight body should be created, not the current standards office within the Justice Department, but a truly arm’s-length organization. That group should have the ability to make binding orders around systemic change.

The Yukon Liberals don’t have to wait for Justice Ron Veale’s decision on the Sheepway application to make changes. Since taking over government in the Yukon there has been a lot of talk about reform at the jail. The Liberals even went so far as to fund an independent investigation that came up with a laundry list of recommendations. Yet since that report came out there has been radio silence regarding if and when the recommendations will be implemented.

Words matter and recommendations are important but if they don’t lead to actual change then we are just wasting our time.