The Yukon Human Rights Commission has asked its members to refer human rights complaints at the Whitehorse Correctional Centre to its board of adjudication for hearing, condemning the Department of Justice’s recent claim that the commission doesn’t have jurisdiction to investigate.

A lengthy letter sent last week by the commission’s lawyer to the department calls its position “narrow” and “completely wrong,” citing pages of case law to show it does indeed have authority to investigate the complaints.

The department has said that the Investigations and Standards Office (ISO), an independent body established under the Corrections Act, is an appropriate venue for allegations of human rights abuses.

According to the letter, a copy of which was provided to the Star by a third party, there are multiple complaints that allege discrimination by WCC and lack of accommodation “to the point of undue hardship.”

One complaint has been filed by Michael Nehass’ father on behalf of his son, who was brought naked and shackled before a judge via video camera from the jail for a case management conference earlier this year.

The department has also posited that the commission doesn’t have authority to investigate because the Human Rights Act states that “where an alternative exists, regardless of whether it was accessed, the (commission) shall not investigate the complaint.”

It suggests that because inmates can also go to the territory’s ombudsman with human rights complaints or address them in court, the commission lacks jurisdiction over these matters.

This stance, lawyer Colleen Harrington writes, “would have the absurd result of leaving inmates without a forum in which to air their allegations of discrimination, contrary to the intention of the legislature that all persons be able to access human rights legislation.”

This interpretation of the act not only limits the rights of WCC inmates, but prevents them from having the same rights as other citizens simply because they’re incarcerated, she said.

“YG’s desire to keep everything that happens at WCC ‘inside’ its internal process created under the Corrections Act is without precedent.”

Citing pages upon pages of case law – past cases across Canada that involved questions of human rights commissions’ jurisdiction – Harrington concludes, “there is no legal support for YG’s impoverished interpretation of the Human Rights Act.”

The department’s position, though, seems to be the result of a fairly recent about-face.

Harrington writes that in a meeting of the commission, the territory’s ombudsman and the ISO, the corrections body said it doesn’t deal with human rights complaints.

It’s not known when this meeting took place.

A 2011 letter from the ISO’s former senior investigator, now the jail’s deputy superintendent of operations, informs an inmate who raised human rights concerns that the ISO “is not a court of competent jurisdiction to review either Charter challenges or claimed violations of the Human Rights Act. Should you wish to pursue either matter, I suggest you seek legal advice.”

As recently as May 29 of this year, according to the commission’s letter, the ISO’s website stated that its mandate did not include investigating human rights or Canadian Charter of Rights and Freedoms issues.

A search shows the ISO website was modified between May 29 and June 20, Harrington writes. The complaints at issue were disclosed to the department on May 14.

“Thus, it appears that the change in ISO’s website ‘mandate’ occurred as a result of receiving these human rights complaints, in order to argue that the Commission does not have the jurisdiction to deal with these complaints,” Harrington states.

Spokeswoman Caitlin Kerwin said this morning it is the department’s long-standing practice not to comment publicly on discussions between it and the commission regarding human rights complaints.

“The Department of Justice and the Yukon Human Rights Commission’s common objective is to resolve human rights complaints in accordance with the Human Rights Act,” she said in an email. “We have no further comment at this time.”

Justice Minister Mike Nixon is out of the territory and not available for comment, Kerwin said.

Heather MacFadgen, the commission’s executive director, said today she could not provide details about the complaints due to confidentiality, nor would she say whether the department has responded to the letter.

The document also refers to the territory’s Corrections Act, finding that nothing in it indicates the ISO is qualified to consider questions of law or to adjudicate disputes.

Harrington writes that the commission has seen letters written by the ISO to inmates in response to their complaints that “demonstrate an alarming lack of understanding of basic legal principles (for example, telling an inmate that, even if they are found not guilty of a disciplinary offence, ‘natural justice’ allows the inmate to be punished anyway because disciplinary decisions are made on the standard of the balance of probabilities and not ‘beyond a reasonable doubt.’”)

The document states the commission has not received any information about whether the complaints have already been addressed by the department in any proceedings.

MacFadgen would not comment on specifics of these complaints, but spoke generally about the commission’s process for investigating complaints.

“What the commission does is independently and neutrally makes decisions and investigates,” she said.

“So a complainant or a respondent does not have a final say on whether or not a complaint can be investigated. That’s a commission decision. We have to do that fairly, by listening to both sides.”

Generally, the commission needs the co-operation of both parties to get information. The complainant signs a consent to release information.

“Mostly, parties co-operate when we ask them for information,” MacFadgen said.

“If they don’t, and we think there’s something important that’s being withheld that is relevant to investigation and we really need, we can apply to the Supreme Court for disclosure of a document that’s been refused.”

The commission plays a gatekeeper role, meaning it decides which complaints are referred to the Human Rights Board of Adjudication for hearing, either following an investigation or not.

Regarding the human rights violations alleged at WCC, the letter states that commission members have been asked to refer the complaints to the board without investigation, in the interest of time.

It’s expected they’ll meet at the end of October to consider this.

Both WCC and the inmates who filed complaints will have a chance to provide submissions before the commission makes its decision.

Meanwhile, the Yukon NDP is calling for Premier Darrell Pasloski to step in and ensure the commission can conduct investigations into the complaints.

“It is time for the premier to step in and show some badly needed leadership on this issue,” Opposition Leader Liz Hanson said today.

“We have a Justice minister attempting to block the human rights commission from carrying out their work in a government facility.

“This is unacceptable, and the premier must bring his minister into line.”