An inmate at the Whitehorse Correctional Centre says his charter rights were violated after he was wrongfully placed in a segregation unit after getting into an altercation with a corrections officer.
According to the application for a judicial review of the incident filed on Dec. 28, a correctional officer instructed Norman Keni, 19, to enter his cell for lock up. The application states the officer’s actions “were not authorized by any policy or regulation, and were an abuse of authority.”
The judicial review application said this led to Kendi getting into an altercation with the officer, and while entering his cell, he threw cold coffee at them.
The application claims the officer retaliated by punching Kendi and placing him in several chokeholds. Kendi was transferred to the jail’s arrest processing unit and then to segregation.
The application states Kendi was placed in segregation out of retaliation and was not granted the opportunity to a hearing before a discipline committee.
The application describes the jail’s decision to place Kendi in segregation as “capricious and vindictive.”
Kendi, an Indigenous man, is one of two people charged in the January 2023 death of 35-year-old Aaron Smarch. He’s currently awaiting trial.
The application was filed the same day the incident occurred.
“The proper course to follow is to have the matter brought before the discipline committee for adjudication. If segregation is warranted for disciplinary reasons, the committee may order this after hearing on the merits and any appeals are exhausted,” the judicial review document says.
Jail has a ‘track record’
The application says the jail “has a track record of violating the Charter rights of Yukon inmates through its use of segregation.”
It points to past legal challenges on the jail’s use of segregation, such as a 2018 inspection report by David Loukidelis which recommended reforms.
The report stemmed from an incident at the jail involving Indigenous inmate Michael Nehass, who spent years in solitary confinement. In 2014, he was dragged naked in front of a judge by corrections officers.
The application also makes reference to a 2019 ruling by the Supreme Court of Yukon. The ruling stems from a petition filed by convicted murderer Darryl Sheepway after he was placed in the jail’s secure living unit for more than 20 months.
The court ruled the jail didn’t have the legal authority to create the unit.
“The centre’s routine, repeated and blasé attitude towards the use of soliarty confinement is a stain on the Yukon. The harm caused to Yukon defendants, most of them Indigenous, is incalculable,” the application reads.
Jail’s use of segregation ‘very problematic’ lawyer says
Vincent Larochelle, the lawyer representing Kendi, said his client was placed in a different unit shortly after being sent to segregation. He’s since been placed back into general population.
He noted the case “stinks of a disciplinary measure” as Kendi did not get the opportunity to go before a disciplinary committee.
“That’s very problematic,” he said. “(If the jail) is feeling aggrieved by the conduct of an inmate, it needs to go before an independent arbiter so that that person can decide who’s right, who’s wrong, is the (corrections officer) right, is the prisoner right?”
Larochelle said the disciplinary committee process is procedurally fair and can be appealed. It can also include legal representation and is documented.
“If a disciplinary measure was taken against Mr. Kendi before there was an adjudication hearing for such a measure to be taken, then that would be a gross violation of his section seven (Charter) rights to procedural fairness before his residual liberty is affected,” he said.
Department of justice responds
Yukon department of justice spokesperson Drew MacNeil said in an email to APTN News an internal review of the incident shows that proper use of force procedures were followed in accordance with the Corrections Act.
“As the inmate has brought the matter forward seeking judicial review, we will not be providing further comment at this time,” he said.
Representatives for the jail have yet to file a response. Larochelle said it’s now up to Kendi to decide whether or not to push the case forward.
