Thread by @xjackiehong

In court for the hearing of Darryl Sheepway's petition against the Whitehorse Correctional Centre, which alleges, among other things, that WCC uses solitary confinement under a different name. Background:

yukon-news.com/news/darryl-sh…

yukon-news.com/news/wcc-calls…

yukon-news.com/news/wcc-misle…

Before we get underway, Justice Veale is questioning why the copy of the Adult Custody Policy Manual provided to the court is redacted and says he doesn't like it. Asks YG lawyers to check into whether a full copy can be provided.

Lawyer Vincent Larochelle (representing Sheepway) says he's done a lot of think about the petition. He notes that it was filed while Sheepway was still at the WCC and being kept in conditions he wanted out of. However, the trial and sentencing moved faster than expected, meaning

the judicial review portion of the petition is resolve because Sheepway is no longer therr. Instead, Larochelle says, the declaration portions of the petition are now the focus — in particular, that portions of the law and policy are unconstitutional.

Veale notes that the WCC has already conceded that the policy, which concerns separate confinement, is already in violation of Section 7 of the Charter.

Larochelle says that Sheepway's intention is to examine the use of the secure living unit (SLU) and why it's unconstitutional

Veale is asking about the layout of the SLU

"This is not about Mr. Sheepway, this is about the SLU," Larochelle says, and how the SLU is used.

Veale says the elephant in the room is that Sheepway had been a guard at the WCC. Larochelle says that's not the point.

"I want this court to do three things," he says:

-Placement in the SLU is segregation

-When you separately confine an inmate, at least 3 things should be

(cont) respected: It needs to be explicitly authorized by law; the condition of where an inmate is separately confined must be overseen by a external, independent, fair and effective review process (clarification, we're not talking about disciplinary seg); and it cannot be of

(cont) indefinite duration

There's no binding caselaw on this one. "Your Honour's going to be a trailblazer," says Larochelle, perhaps rather hopefully.

On the third aspect of the case, Larochelle says, quite simply, Sheepway is an example of how the WCC has "run afoul" of those three conditions

Larochelle says this case involves the Charter, and in Charter cases, the courts must "look beyond the facts of the case" and at the law overall

Larochelle says he thinks he can wrap by the end of the morning because most of his evidence is contained in affidavits and existing law/policy. Back and forth about whether Sheepway, who's appearing via video call from prison in BC, will be allowed to testify

YG lawyer Karen Wenckebach says she has no objections as long as Sheepway sticks to the three points in Larochelle's outline.

Larochelle says he wants Sheepway to talk about the SLU and the "magical" change in his conditions when he filed his petition

Sheepway being sworn in

Sheepway says he spent 17 or 18 months at the WCC on his murder charge — August 2016 until May 2018. He says he spent 0 days of that time in general population, and was placed from Day 1 in segregation after being processed

Sheepway says the segregation unit is across the hall from the SLU. Says he spent about 2 weeks in seg, can't recall the exact number of days.

Sheepway says only difference between seg and SLU is that in SLU, cells have televisions, and there are a "couple of tables" in the common area. "They're otherwise identical."

After that, he was placed in SLU and left there until he was moved into the federal system.

Says there was no talk about trying to move him to general population. He says he requested it "a number of times," to be moved into another living unit.

Sheepway says he wasn't formally given reasons for his containment I'm the SLU until April 2017, after he filed his complaint to the ISO

Veale asks what "formal" means. Sheepway says he never got anything in writing, management never spoke to him. "The only explanation I ever recieved was just various guards' gossip as to why they thought I was in the SLU... Just gossip from the guards."

"No official person came to me a said, this is why you're in the SLU."

Sheepway says he didn't receive any explanation as to why he was kept in seg. Says he was on "involuntary" suicide watch, someone had determined he was suicidal even though he says he felt okay

On the ISO complaint, Sheepway says he had been asking to be moved to general population or for reasons he was in the SLU. None of them were answered, Sheepway says, so he filed a complaint to the ISO.

Sheepway says in April 2017, I was given an SLU placement form that listed some reasons surrounding his employment at WCC and the nature of his charges

Sheepway says after that, about once a month, he recieved a new SLU placement form which "just repeated the same reasons. It was essentially the same form over and over again with a new date on it."

Sheepway says he was never given an opportunity to speak on his continued confinement in the SLU

On the WCC employment factor, Sheepway says there wasn't a lot of detail on the security concerns cited on the form.

"All it said was a review was completed" Sheepway says. He didn't know who was doing the review or when it happened. The forms were all signed by Hendricks.

Sheepway says there are 7 cells in the SLU.

The number of "compatibility groups" in the SLU determined how much time inmates would get to spend on unlock.

The groups and time you got to spend out of the cell depended on however was supervising that day, he says.

Sheepway says on weekends, there might be more inmates in the SLU because of people on intermittent sentences

Sheepway confirmed he filed his petition in February 2018, and his SLU conditions changed "drastically"

Says there was suddenly more effort by WCC to find compatible groups, that he was suddenly compatible with a lot more inmates, he spent more time on unlock

Sheepway says he was never given reasons for the change

Sheepway says some of the inmates he was suddenly found compatible with, he was incompatible with before the petition

On despair and hopelessness he mentions in his affidavit "I think that sums it up pretty accurately... the more time I spent up there, the less hope I had, I guess, for life in general."

He says he was living in his head a lot, living in a fantasy world in his head and was

out of touch with reality. He says he had a hard time interacting with people.

"It's hard to express it all."

He was disillusioned with himself and reality, he had no hope or aspirations

"The frustration of having absolutely nothing to do all day long ... I had nothing," he says, saying he would be jealous of people who had everyday problems because he didn't even have that

Sheepway, asked if he thinks he was treated fairly at WCC, responds "Absolutely not"

Wenckebach with the cross examination for YG.

Sheepway confirms he was allowed visits with his family, and that his mother visited two to three times.

Wenckebach asks if she actually came 10 times.

Sheepway says she came 2 or 3 times during the first week, then some other

times throughout his incarceration

Sheepway says his mother came to visit him the two times she was in the Yukon, when he was first jailed and then during his sentencing hearing

Sheepway says the first few were over glass (in 2016) and the ones later on in 2018 were open visits

Sheepway confirmed he received visits from his children. It started out about every other week and then over time, the frequency decreased to about once every four weeks. Frequency was determined by availability of his ex mother in law, were all open visits.

Sheepway confirms he was offered the chance to meet with the pastor who attends WCC but says he doesn't know why it's relevant. Says he was almost offended, he was not religious. Was also offered elders, but he's not First Nations so it was of no interest

Sheepway confirms he saw the WCC psychiatrist on a fairly regular basis. Says there were occasions he had to speak through him through the door but most of the time was in person

Sheepway confirms he also saw a psychologist "regularly" (twice a month). Adds that he wishes he could have seen the psychologist, could have seen her every single day if he could have.

Sheepway confirms he was not in his cell when he was on unlock with another inmate

Wenckebach suggests the unlock with that inmate started in mid-December 2016, not March 2017 as Sheepway said in his affidavit.

Wenckebach says Sheepway had other opportunities to be on unlock with other inmates between March 2017 and December 2017. Sheepway says he doesn't think so. Wenckebach asks about one inmate. Sheepway says no. Wenckeback asks about another. Sheepway says he thinks there was one

day with that second inmate. Says he remembers coming out of his cell and the other inmate was also out, but he didn't interact with him. Didn't have any problems with him.

Wenckebach asking about Sheepway's affidavit and where he says he had no opportunity to have contact with other inmates until his petition was filed.

Wenckebach says Sheepway was on unlock with at least on inmate from March 2017 to December 2017. Sheepway confirms he did not

have to yell through his cell door to interact with him, and that would have been the case with the other two inmates.

Sheepway confirms he often did not want to leave his cell, that he was often sleeping and missed unlock because he was sleeping

Sheepway says even when his door was unlocked, he didn't always want to come out because there was nothing to do.

Wenckebach asks if he's perhaps misremembering the amount of unlock time he had because he was asleep or didn't want to come out

Sheepway says the amount of unlock time isn't the big issue for him. Having his door unlocked just meant he could go into a bigger empty room

Sheepway says "compatible" inmates didn't mean that they were buddies, just that they didn't fight. Says it didn't mean they wanted to see each other or talk to each other, that they would run out as soon as their doors were unlocked and go and hug each other

"It didn't mean we were all friends or ... Had a meaningful relationship."

"Whether my cell was locked or not, it didn't change the fact there was nothing to do except watch TV, whether my door was unlocked or not."

Sheepway confirms he was in the SLU with Edward Penner in 2018, but doesn't know when it was just him and Penner

Sheepway confirms Penner assaulted him during an unlock and that he was taken to the hospital because of it

Sheepway asked if he was approached by a corrections officer and asked if he wanted to participate in the Models of Change program. Sheepway says no, he wasn't offered anything, CO just came over to talk and he didn't want to talk to him because he had a previous conflict with

him prior to his incarceration.

Wenckeback says Sheepway was asked twice to participate in the program.

Sheepway says there was never a mention about a program, they just asked if he want to speak to a certain person.

Sheepway asked if Hendriks asked if he wanted to take part in 12 step program.

Sheepway says no, after ISO complaint, they had a conversation about possibly making his life better in the SLU, and Sheepway told him he was not interested in 12-step, but it was never offered to him

Wenckebach asks if it's correct Sheepway was asked if he wanted to attend a dog therapy program.

Sheepway says yes, but it was late in his incarceration and because of his life as a dog musher, he has other grief, guilt and drama regarding his personal feelings towards dogs

He says he thought he would suffer more by being around a dog than any benefits he would receive from petting a dog, especially someone else's dog

On taking Yukon College courses, Sheepway says a teacher came to talk to him after his complaint to take part in "correspondence-type stuff" but he felt it was too remedial and basic

Wenckebach puts it to Sheepway that he was asked about college programs in December 2016. Sheepway says he doesn't remember anyone talking to him about college before the first ISO complaint

Sheepway confirms he had access to the phone during unlock time, and that one was available in the common room.

He confirms there was an exercise bike in the common room, but adds that that was after "numerous requests" for something to do

Sheepway confirms an elliptical machine was brought up after his requests, but he couldn't use it because he exceeded the maximum weight. He did try it though.

Sheepway says he never filed any requests but other inmates started to use it, and later on, they brought up a better

machine that he did use. He thinks that wasn't until 2018

Wenckebach asks if Sheepway recalls, after he pleaded guilty to some of his charges, Hendriks told him he could request to be moved somewhere else down south.

Sheepway says Hendriks did speak to him but didn't phrase it that way. Sheepway says he wasn't interested in leaving...

...Whitehorse because here, he could still visit his children. Sheepway says no one told him he could move because he pled guilty, that Hendriks came and said he could "magically" make things better and transfer him. Sheepway says he was never interested in moving because...

... he couldn't have visits from his children down south. Wanted to have visits as long as he could.

Sheepway confirms he told Hendriks he only wanted to be moved to the G Unit because he wanted to work in the kitchen.

Wenckebach listing off examples of when Sheepway interacted with COs, asks him to confirm if he remembers them.

-a CO asked why he wasn't use the spin bike, Sheepway said he wasn't allowed to finish his routine. Sheepway says he remembers, that not being able to finish routine

(cont) was a source of constant frustration for him

Wenckebach asks if Sheepway told CO he had nothing much left to live for. Sheepway says he told that to a lot of people.

Sheepway confirms the CO engaged him in conversation, talked about his life, his past

Wenckebach asks if he told the CO the birth of his son and the pressures he faced were the reason he turned to drugs.

Sheepway says he had a lot of conversations with that CO, but it wasn't until later that he felt comfortable talking to him. Says he's annoyed the details of...

... the conversations are now being made public.

Sheepway confirms they also talked about lighter stuff like Star Wars, TV. Says TV is and was his main interest

Sheepway confirms he was allowed to smudge at WCC and accepted smudge material, but had that suspended because he tried to smoke the material.

Sheepway says at first he smudged because he liked the smell and reminded him of the outdoors, it never had a religious appeal. Admits his main motivation for taking the smudge material was because he really wanted to smoke something

Wenckebach asks if it's correct that he smoked marijuana at WCC. Sheepway says he was accused of having it but the adjudicator did not confirm the findings.

Court's taking a break.

We're back.

Wenckebach asks Sheepway about ISO complaint. He says Hendriks came to talk to him after it, but there was nothing before that re: explanations

YG concludes with Sheepway. Sounds like Hendriks will be up for cross by Larochelle after lunch (YG has no questions for him), and then closings either later today or tomorrow morning

Alrighty, we're back.

Hendriks up on the witness stand. YG has no questions for him. Larochelle jumping straight into cross.

Hendriks has worked at WCC since Aug. 8, 2016, he confirms.

On a weekday, day starts at 7, 7:30, meals are served around 7:45, units unlocked. Depending on which unit...

... you're in, inmates would all be unlocked at the same time.

Inmates are unlocked from 7 am to 10 p.m. in general population, Hendriks confirms. Barring any unique circumstances, everyone can leave their cells, have food, "mix and mingle," do programming.

Hendriks says there are certain times things are required to be done ex. Beds being made. Certain things are scheduled.

Hendriks says 10:30 p.m. is lockdown for the night. There are also 5 20-min lockdowns throughout the day as guards take breaks.

On weekends, unlock is 10 a.m. to 10:30 p.m. There are fewer breaks (4 instead of 5)

Hendriks says there's less time on weekends because there's less staff, services provided by outside agencies who have days off on weekends. Inmates have weekends as well ex. if you work in the kitchen, you get a later start too.

On jobs, Hendriks says there are cleaning jobs. One unit does laundry, another does inside and outside work crew.

Hendriks denies that taking an outside job is the only way for an innate to get outside the WCC. Says inmates can request to go outside and will be taken if staffing allows.

Other jobs include librarian, kitchen work

Hendriks confirms there are no scheduled breaks for staff working in the SLU.

Hendriks confirm the SLU cells open and close at the same times as gen population, but not all inmates are unlocked the whole time.

He confirms it depends on compatibility groups — the unlock groups must split the available time.

Ex. If Sheepway was alone, he could, in theory, be on unlock the whole day. If there are two unlock groups, they would switch back and forth between lockdown and unlock

Hendriks says staff take into account inmate preference ex. If an inmate wakes up early, he would be put on the first morning unlock, while an inmate who likes sleeping in would get a later unlock block

Hendriks confirms the time inmates get out depends on the compatibility groups. Ex. If there are four groups, they would each get about 3 hours each on unlock on weekends.

Hendriks says it's very uncommon to have 7 unlock groups. More common, it's two to five. In 2017, in one occasion, there was 6.

Hendriks says if an inmate is out for a medical appointment or court, staff would take that into account to try and give other inmates more unlock time.

Hendriks says because the officer in the SLU is also the secondary control officer, so SLU is never shut down the same way another living unit is shut down. That's because SLU officer is the backup officer who can open/close doors, monitor cameras, and has specific training.

Hendriks says on segregation, the unit officer gets a break, but someone comes in to relieve him so the unit is never on shutdown either. Also 7 cells in segregation

Hendriks says in theory there could be 7 unlock groups in SLU but he's never seen it.

Confirms the SLU has a fresh air room. Describes it like a patio in an apartment building, with metal screens across the windows

Hendriks confirms in SLU, when you come out of your cell, you would find tables and chairs in the common area.

Hendriks says fresh air room is accessible from common area. Says there's a "pretty nice view" unlike the fresh air rooms for general population, where you can't really see outside. In SLU you're looking out and across Range Road

Larochelle says in Sheepway's affidavit, the room is described as a concrete room of about 8 sq. m. with a vent bringing air from outside.

Hendriks says that's not how he would describe it, and if there wasn't a mesh screen, it's a view he would like from his front deck

He describes them as "three huge picture windows" with mesh across. "It's like a gazebo" except screen is to not keep bugs out, but to keep objects from getting in. Windows about 4-5 inches

"I don't want this to appear like some bug-infested little cage, because it's not"

Hendriks says when he was hired, he was manager of correctional services. There are 12-hour shifts. In February 2017, he was offered manager of correctional services of policy. In Dec. 2017, took temp assignment as assistant deputy superintendent, which is current title

In Aug. 2016, Hendriks was manager of correctional services. Says he was present as one of the manager when it came to decisions about Sheepway's placement

Hendriks confirms no SLU placement forms were given to Sheepway until April, but that there were still reviews of Sheepway's placement at daily management meetings.

Hendriks says deputy superintendent of operations told Sheepway for the reasons behind his placement ...

... on his admission to the WCC, and those reasons never changed.

Back and forth between Larochelle and Hendriks about what typically happens at a daily management meeting

Reviews can be brief, Hendriks says. For example, it can just be someone saying an inmate has a court date, depending on what happens, we may need to consider where to put him after, etc.

Hendriks says that every day at the meeting, if there's somebody who's on separate confinement, it's noted and will be discussed as, what's the plan? Ex. If person is medically confined, no, the doctor isn't coming in today, we'll follow up tomorrow

Hendriks confirms decision to place an inmate in SLU and reviews of his placement are done at the daily management meetings. Confirms that is the case for Sheepway in the minutes of meetings from August 2016.

Larochelle says the whole meeting is 20 minutes. Hendriks confirms...

... review would have happened within those 20 minutes, presumably at the end because it's the last item on the meeting minutes.

Hendriks confirms the reviews of short and long term confinment are done at the daily management meetings

Sheepway is moved to SLU on Aug. 31, 2016, according to the meeting minutes. The day before, he had been reviewed, with the next review scheduled for a week later.

Hendriks says the fact that Sheep way was moved indicates that a review did take place. A review was conducted ..

... earlier that scheduled, which was the maximum allowable time until another review had to happen, Hendriks says.

Hendriks says it would be reasonable that changing information during the day could have been brought up to a manager, who could have made a decision following the daily management meeting, rather than waiting until the next day's meeting

Hendriks says in all likelihood, there were further conversations and someone made a decision that Sheepway no longer needed to be in seg. He can't say why that decision happened, he doesn't remember.

In response to question on whether Heredia was allowed to make submissions on Sheepway's placement at the management meetings, Hendriks says no, he's not a manager.

Hendriks says Sheepway was never at the meetings. He starts to list all the things Sheepway has access to (ex. Request form, letter, could call a lawyer) but Veale cuts him off

Hendriks says he would expect if a review took place at the meeting, it would be in the minutes, but he doesn't make or review the minutes

Hendriks confirms Sheepway began receiving SLU placement forms after his ISO complaint.

Hendriks says reviews were performed weekly by a case management team and Sheepway would be provided SLU placement forms monthly

Hendriks says there's a difference between the SLU placement and separate confinement placement reviews

SLU placement review doesn't happen at the manager meeting, it's a discussion between Hendriks and case managers. Hendriks says there are no notes, and that the meetings took about 5-10 minutes.

Discussions could be, "How is he doing, how's his behaviour?" Etc. Hendriks says nothing changed in regards to why Sheepway was in the SLU — there were security concerns.

Hendriks confirms that's because he used to be a guard, so there was security concerns both for him and the jail

Larochelle says that for about 95% of the SLU placement forms provided to Sheepway, his name is not mentioned at all during the daily meeting minutes

Hendriks says he consider placing Sheepway in general population, "probably within the first 6 months." Says he can't provide a document to show that

Hendriks says they didn't have to re-discuss, is he a safety risk to the facility? The fact that he's a ex-guard never changed

Larochelle says he's not questioning Hendriks' decision, he's questioning the process and transparency. When does Sheepway get to see the process, when does he get to make submissions? (Apparently never, and no one makes submissions on his behalf at any meeting.)

There are minutes of a meeting focused solely on Sheepway, in which it's suggested that Sheepway could be allowed to use a gym on another unit, could be allowed to run, paint Yukon Quest sticks. Larochelle asks if any of this was provided to Sheepway. Hendriks said he didn't...

... tell Sheepway any of it personally, and notes that he was very junior at the time of the meeting (November 2017).

Hendriks says all SLU inmates began receiving review forms in April.

Wenckebach with redirect. Hendriks says that when someone goes out for whatever reason, WCC tries to give them additional unlock time once they get back

Back tomorrow for closings