A Yukon Supreme Court justice has ruled that the Whitehorse Correctional Centre (WCC) does not have the authority under the Corrections Act to create its Secure Living Unit.

The decision is the result of a civil lawsuit launched against the WCC by Darryl Sheepway, the man convicted of the second-degree murder of Christopher Brisson. Chief Justice Ron Veale released his 40-page written decision on Thursday.

Sheepway had argued that his placement in the Secure Living Unit and Segregation Unit from Aug. 31. 2016 to May 8, 2018 violated his Charter rights to life, liberty and security of the person.

His lawsuit targeted Eric Hendriks, the assistant deputy superintendent at the WCC, Jayme Curtis, the superintendent and Trisha Ratel, the director of corrections.

In his decision, Veale concluded that Section 15 of the Corrections Act does not allow for the creation of the unit. He made several other determinations.

He found that the WCC is not allowed to place inmates in the unit without following the appropriate processes outlined under the Corrections Regulations.

He found that the WCC breached several sections under the Corrections Act and Regulations.

He ruled that these findings will be stayed for nine months. This is to grant the Yukon government time to properly regulate the unit in question and develop a proper and just process to place inmates there.

The government will also have to create an effective review process.

Veale made a finding of several facts.

“From my observation on a view of the Segregation Unit and the Secure Living Unit, the physical configuration of the Units are similar,” Veale said in the decision. “It is the unlock times that differ.”

He pointed out that the Segregation Unit unlock time, or the time an inmate can be out of his or her cell, is two hours, while it’s six hours for the Secure Living Unit.

Another difference is what is provided in the cells for inmates. Secure Living Unit inmates are provided a small television in his or her cell, while that is unavailable in the other unit.

He found that Sheepway was placed in the Segregation Unit for his first two weeks at WCC. He added that the inmate was not provided any information on the placement.

During his time in the Secure Living Unit, Sheepway was not given any placement forms until April 7, 2017, after he was placed in that unit on Aug. 31, 2016.

Veale accepted that Sheepway experienced times in the Secure Living Unit where he had no contact with other inmates while there were days that he did.

Veale pointed out that regardless, Sheepway still had access to the common room, which has a telephone, exercise equipment, a shower and a fresh air room.

He added that Sheepway was visited by his mother, children, a psychologist and psychiatrist. He was prescribed medication to help with his issues, which the judge felt helped.

Veale accepted that it is established that prolonged isolation negatively impacts a person’s health. If the individual in question already has psychiatric problems, this can make that person more prone to the negative effects.

He found that Sheepway entered the WCC already addicted to both marijuana and cocaine. He also had depression, and experienced thoughts of suicide.

Doctors found, based on a March 15, 2018 report, that Sheepway struggled with anxiety, depression, despair and suicidal thoughts.

He suffered from these issues before going to prison. Once at WCC, though, he began to experience reactive anxiety, features of panic attacks and post-traumatic stress disorder.

Doctors were unable to determine if Sheepway’s isolation caused the new symptoms.

Veale found that Hendriks did speak with Sheepway over his security status but regardless, the proper procedures were not followed.

Veale next moved to the Corrections Act.

He said the act states that “the protection of society must be given paramount consideration in making decisions or taking any action under the Corrections Act.”

There are provisions in the act that indicate that the corrections branch has to use the lesser restrictive measures with inmates and offenders when it comes to protecting the public, staff and the inmates themselves.

He added that there needs to be a fair process and a review procedure.

He pointed out that the Corrections Act does not have the words Secure Living Unit mentioned in it.

He next referenced the regulations. They state the person in charge of the facility can place an inmate in a unit that separates everyone on the basis of having reasonable grounds to.

Veale said the WCC Policy Manual describes segregation as a disciplinary measure while separate confinement is viewed as administrative.

Veale explained that the creation of the Secure Living unit through the policy manual goes beyond the power of both the act and regulations.

“In my view, the Corrections Act make a clear statement in s. 51(f) that separate confinement and segregation are to be set in regulation, not policy or rules under ss. 14 and 15 of the Corrections Act,” Veale said in the decision.

He explained that Section 15 of the act does allow for the WCC, with the approval of the director, to create rules to guarantee the safe and efficient operation of the facility. It is also subject to the regulations.

“It is also my view that the creation of the Secure Living Unit in the WCC Policy Manual has resulted in WCC choosing to use confinement in the Secure Living Unit rather than the Separate Confinement regulation, thereby avoiding the procedural safeguard for inmates in s. 21 of the Corrections Regulations,” Veale said in the decision.

He again noted that neither the act nor regulations mention separate confinement nor segregation. He did not feel interpreting the act should be interpreted in a liberal way to say it would allow for the creation of the unit.

He felt that the unit creates conditions that can be described as separate confinement. He said it just isn’t called that.

He added that the policy manual defined the separate confinement as an inmate being held in the Segregation or Secure Living Units.

“This confirms that both the Segregation Unit and Secure Living Unit are in fact separate confinement and in the case of Mr. Sheepway without procedural safeguards,” Veale said in the decision.

He felt the status of separate confinement must not be left to the policy manual. He said it should rather be part of the act or regulations.

Veale ordered that costs could be discussed at a future case management conference if necessary.