The Yukon's treatment of accused criminals in need of psychiatric assessments breaches the Canadian Constitution, Judge Heino Lilles ruled Friday afternoon.

The chief of the territorial court also suggested it's likely the Yukon's practice of keeping the accused in a tiny segregation cell at the Whitehorse Correctional Centre is in breach of the international humanitarian agreements Canada has signed.

Lilles' comments came Friday afternoon after he adjourned courtroom proceedings to take an unprecedented tour of what is commonly referred to by prisoners and staff as the 'hole' or the 'digger.' It is the windowless, dimly lit segregation cell measuring two metres by three metres where Steven Rathburn has been held for more than a month and a half, around the clock, but for one hour a day to get fresh air.

Corrections staff on hand while Lilles inspected the facility told the judge the isolation cell was not a place for Rathburn or others in his situation. Just having him there under those conditions was demoralizing for staff and fellow inmates, the judge heard.

'They know what is going on,' said Don Blacuiere, superintendent of corrections, when asked by the judge Friday if Rathburn's isolation was having an impact on other inmates. 'It is very distressful.'

Rathburn was declared not guilty Friday of two criminal charges by reason of mental disorder. He was arrested without incident March 7 after the RCMP's emergency response team was dispatched to the Gruberville residential area at the corner of the North Klondike Road and Takhini Hot Spring Road. Six nearby residences were evacuated as police had been told Rathburn was having a breakdown and had guns in his possession.

The judge said he wanted to tour the jail cell after suggestions by both Crown prosecutor Kevin Drolet and defence lawyer Ed Horembala that the 'hole' was anything but an appropriate place for Rathburn to be held.

A psychiatric assessment before the court indicated that Rathburn's mental health had worsened during his detention at WCC.

During the half-hour visit to the segregation cell, the judge and lawyers were shown a videotape of Rathburn in his cell. The cell is monitored by cameras 24 hours a day.

In it, Rathburn is seen talking to the floor and the toilet. Another piece of video sees him standing in the corner, in the dimmest part of the cell, before slowly walking to his bed and laying face down, moving ever so slowly but in apparent discomfort, as though in the grips of an agonizing stomach cramp though not.

WCC nurse Nathalie Mercier said Rathburn would spend hours talking to the walls, the camera, the toilet or a fresh air outlet. He would pace back and forth, and roll on the floor or his bed.

Mercier said Rathburn had improved since his worse days in March but 'how long can we keep him in a box?'

The correctional centre, the superintendent told the judge, is not a place for someone suffering the illness the accused was suffering, because he was ill, and had done nothing wrong.

But the problem is that Whitehorse General Hospital doesn't have the room for accused in need of psychiatric assessment, the judge heard.

In his submissions to the court, the Crown prosecutor noted that under territorial law, WCC and the Whitehorse General Hospital are designated as the two medical facilities to house accused in need of psychiatric assessments.

'The designation of the segregation cell at WCC as a hospital is beyond my imagination,' Horembala told the judge during court. The segregation cell, Horembala told the court, is a place of punishment, not of healing.

In the judge's court order Friday in which he calls Rathburn's detention at WCC a breach the Canadian Charter of Rights and Freedoms, Lilles directed Rathburn be moved to the hospital no later than 6 p.m. Saturday.

Sandy Bryce, the Yukon's acting director of corrections, said Rathburn was transferred Saturday afternoon, and is being kept in a secure room under 24-hour supervision by corrections' staff.

Justice Department staff will now have to work with staff from the Department of Health and Social Services to determine how the case will be handled and paid for, said Bryce. Responsibility for Rathburn's care, she noted, now falls under the jurisdiction of the territory's Mental Health Act and the Department of Health.

Under the act, the territory's review board has 90 days to complete an assessment and make its recommendations to the court.

Bryce said officials from both departments will be meeting today to discuss how to share resources to manage the Rathburn case.

Justice Minister Elaine Taylor would not say today whether WCC is now off limits as a detention facility for accused criminals requiring psychiatric assessments.

Nor would she comment on the judge's finding that conditions under which those accused are held in WCC is a breach of an individual's fundamental rights in Canada.

Problems arising out of the criminal psychiatric cases have come before the court in the last couple of years, beginning with a Ross River man who was released from jail pending his trial because Justice officials did not have an assessment conducted in time.

The judge was critical of the system at the time, suggesting that he did not want to release the accused because he had nothing to gauge his mental state without an assessment. But without an assessment, he could not justify holding the accused any longer until trial.

The court was told at the time the problems arose because the Yukon government had not maintained agreements with southern psychiatric hospitals to take Yukon patients.

The court was also made aware of problems securing a psychiatric assessment last year in the case of Thomas Sharp, a convicted sex offender who has since been declared a dangerous offender.

In the case of Rathburn, the accused was held in the segregation cell while arrangements were made to have Dr. Todd Tomita of the Forensic Psychiatric Hospital in Port Coquitlam, B.C., travel to Whitehorse.

As part of his request, Drolet asked the judge to direct Yukon Justice officials to produce copies of agreements with southern hospitals, or at least copies of the last available agreements with those facilities.

Having only taken on the job as acting director of corrections on Friday, Bryce said she could not say with certainty what sort of arrangements the Yukon has with southern hospitals.

But in researching the matter over the weekend, she did say that shortages of resources to handle accused in need of psychiatric services is a problem right across Canada.

'We are seeing more and more of these problems with people and the resources are just not there,' she said. 'It's like try and make do with the best situation you can but it is not ideal, that is for sure.'

Evidence before the court indicated Rathburn arrived home about 3:45 a.m. March 7. A confrontation ensued with his girlfriend, who he pushed down on the couch and began to choke. The young woman escaped and sought the help of a friend next door. The friend went to help Rathburn, and it was at that time that Rathburn asked the friend to shoot him with a pistol Rathburn had.

Drolet said the finding of the psychiatrist indicated clearly that Rathburn was not criminally responsible for his actions, given the state of his mental health at the time.

Commenting on the thoroughness of the doctor's report, Lilles said he had no trouble finding the accused not criminally responsible for his actions.